Prakash v Devi [1979] FJSC 37; Civil Appeal 18 of 1979 (27 September 1979)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA
Appellate Jurisdiction

Civil Appeal No. 18 of 1979

BETWEEN

AJAY PRAKASH
s/o Tota Ram
(Appellant)

AND

UMA DEVI
d/o Muni Lal Seth
(Respondent)

Mr. S. Prasad, Counsel for the Appellant
Mr. B.C. Patel, Counsel for the Respondent

RULING

There is some confusion in this application. Judgment was given against the appellant in the Magistrate's Court at Ba in his absence. The record is not before this Court and the reason for giving judgment against the appellant are not clear. Presumably there was formal proof because the appellant failed to turn up on the day appointed for hearing, and his counsel withdrew from the case.

Later the appellant moved the court to set aside the judgment and this was granted on the condition that the full judgment debt was paid into court within 28 days.

The appellant could not pay the full amount, and has not to date paid anything into court. What the position is now is not clear. I am, I think, expected to presume that the setting aside of the judgment lapse because of the appellant's failure to comply with the condition in time. There is nothing on the record to show whether the appellant asked for an extension of time, or took any steps to appeal against the condition attached to the magistrate's order.

There is attached to the appellant's affidavit a document purporting to show the grounds on which the appellant seeks leave to appeal. Those grounds appear to be for an appeal against the condition attached to the magistrate's order, but the summons does not clarify the position, merely referring to leave to appeal out of time. So far as the delay is concerned the only reason put forward is failure to find solicitors fees, which is not a very persuasive reason. The appellant had a solicitor in the lower court and has one in this court so presumably he has been able to settle the question of fees satisfactorily.

The appellant's affidavit says that an extension of time for lodging an appeal was sought in the magistrate's court but that this was rejected on 9/8/79. Again it was not made clear whether the appellant wished to appeal against the condition attached to the magistrate's order, or what he was appealing against and argument before the court has not enlightened me. If the setting aside of the judgment lapse for non-compliance with the condition, what was there left to appeal against? The original judgment would have been restored.

If I have not stated the position correctly the appellant has only himself to blame for not making the position clear in his affidavit. In the first place I do not think that I can give the orders sought, nor am I persuaded that there is merit in the application which is dismissed with costs.

(Sgd.) G.O.L. Dyke
JUDGE

LAUTOKA,
27th September, 1979.