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Mudaliar v Mudaliar [2022] FJCA 6; ABU023.2018 (2 March 2022)

IN THE COURT OF APPEAL, FIJI
ON APPEAL FROM THE HIGH COURT

CIVIL APPEAL NO. ABU 023 of 2018
(High Court Civil Action No: HBC 333 of 2014)

BETWEEN:

KAMLESHAN SAMI MUDALIAR
Appellant

AND:

PUSHPA MUDALIAR aka PUSPA WATI DEVI

Respondent

Coram: Almeida Guneratne, JA

Counsel: Mr N Sharma for the Appellant
Mr E Narayan for the Respondent

Date of Hearing: 16 February, 2022
Date of Ruling : 2 March, 2022

RULING

[1] This is an application by the Respondent to strike out (dismiss) the Notice and Grounds of Appeal filed by the Appellant.

[2] That application is based on:

(a) Inordinate delay;
(b) non-compliance with Practice Direction 1 of 2019;
(c) failure to prosecute the appeal with due diligence and in accordance with the Rules of Court.

[3] Apart from the above learned Counsel for the Respondent submitted that in any event the Appeal is moot and has been rendered academic in that the land in question (the property) has been sold to a thirty party by the Respondent.

Brief background to the matter

[4] By decision dated 25^th October, 2016 the Master granted the Respondent vacant possession of the property.

[5] The Appellant having filed a leave to appeal application against the decision of the Master to the High Court, on the High Court declining the said application, the Appellant moved by summons for extension of time to appeal out of time. By its Ruling dated 27^th March, 2018 the High Court declined the said summons on the grounds that:

(a) there was a delay of 11 months, 11 days which is clearly inordinate;
(b) the reasons for the delay are unacceptable;
(c) there was no merit or prospects of success in the proposed grounds of appeal;
(d) the Respondent will be unfairly prejudiced if discretion is exercised and extension of time is granted.

[6] It is against that Ruling of the High Court that the Appellant filed Notice and Grounds of Appeal in this Court certified by the Registry of this Court as having been filed on 25^th April, 2018.

Preliminary Reflections

[7] Consequently, on the established jurisprudence in Fiji I would have been obliged to consider the said grounds of appeal as against the impugned Ruling of the High Court to exercise discretion in granting or otherwise extension of time to appeal in the light of the principles laid down in the seminal decision of the Supreme Court in Native Land Trust Board v Khan [2013] FJSC 1; CBV0002.2013 (15 March 2013).

[8] However, the matter having come-up before me on some occasions at one of which I even set time lines for parties to file written submissions on the Respondent’s “striking out application.”

[9] While Mr. E. Narayan for the Respondent filed his written submissions in support of his “summons to strike out,” Mr. N. Sharma, although himself filing submissions inviting this Court to dismiss the Respondent’s “striking out application,” in those very submissions dated 16^th December, 2021 submitted that,

“(a) since our appointment on or about the 29^th day of January 2021 we have not had any instructions nor any contact from the said Appellant _ _ _”

(page 1 of the said submissions)

[10] That was the background setting of the matter when it was taken for hearing on 16^th February, 2022.

What transpired at the hearing on the 16^th February, 2022.

[11] Mr Sharma confirmed what he had submitted in his written submissions referred to in paragraph [9] (a) above. Yet he had made an effort to do his best by his one-time client – indeed a commendable act on the part of a young lawyer.

[12] I say that, given the said date of 29^th June, 2021 and his written submissions dated 16^th December, 2021, in my view, he should have withdrawn from appearing for the Appellant making an appropriate application to this Court. The same goes for his solicitors firm.

[13] As against what Mr Sharma submitted, Mr Narayan’s submission was:-

(a) on Mr Sharma’s own revelation he has no status (without instructions) to appear;
(b) although, he (Mr.Narayan) could very well withdraw his “striking out application”(on account of (a) above) there would be no basis for this Court to make a determination “on the merits” but to dismiss “this purported appeal” on the ground of “abandonment” and/or “non-prosecution with due diligence”;
(c) the Appellant having been evicted from the property about three years ago and thereafter the said property having been sold to a third party (paragraphs 17 and 18 of the Respondent’s written submissions) which Mr.Sharma was not in a position to controvert for the simple reason that he was without instructions to say anything in counter thereto even in regard to Mr Narayan’s submission that presently the Appellant was overseas.

Determination

[14] Given the background facts and circumstances of this matter which I have re-capped above, I proceed to determine this matter on the basis of the jurisdiction vested in me under Section 20(1) of the Court of Appeal Act, particularly Section 20(1)(g).

[15] Consequently, I strike out “the Appellant’s” purported appeal and dismiss the same.

[16] In view of that determination, I did not see reason to crowd this Ruling any further, except to address the ground 2 urged in the Respondent’s “summons to strike out the Appellant’s Notice/Grounds of Appeal” viz that,

“(i) The Respondent pay costs of this application on a solicitor client indemnity basis and;

(ii) any costs paid by the Appellant as security be forthwith released to the Respondent.”

[17] In re: [16] (i),

I am afraid I cannot make that order, while hastening to say that the said order sought is misconceived;

[18] In re: [16](ii),

That order I do not have jurisdiction to make. It is an issue the Respondent will have to pursue with the Hon Chief Registrar.

Orders of Court:

1. The Respondent’s application to strike out the Appellant’s Notice/Grounds of Appeal is allowed and the said Notice/Grounds of Appeal is/are struck out and/or dismissed.
   
2. Although, normally, acting on the principle that costs follow the event I would have been obliged to order some costs, being mindful of another principle that a Court should not act in vain on the Respondent’s own showing that, the Appellant is overseas. I shall not make an order for costs (if not for any other reason because of the need to involve the concept of reciprocal enforcement of foreign judgments and the legal principles that goes with it) which could lead to further protracted litigation.
   
3. The proceedings in this matter shall stand terminated and the Registrar is directed to take this matter off the cause-list.
   

___________________________________________
Hon. Justice Almeida Guneratne
JUSTICE OF APPEAL