IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No: HBC 182 of 2006

BETWEEN:

MOHAN PRASAD
[1st Plaintiff]

MOHAN R K PRASAD & CO LIMITE
[2nd Plaintiff]

AND:

RUP INVESTMENTS LIMITED
[1st Defendant]

SUVA CITY COUNCIL
[2nd Defendant]

Counsel : Mr. R Chaudhary for the plaintiffs 
Mr. M Nand for the 1st defendant
Ms. P Narayan for the 2nd defendant

Date of Judgment: 19th October, 2012

JUDGMENT

1.	This is an appeal by the plaintiff-appellant [hereinafter referred to as the plaintiff] from an Order made by the Master Tuilevuka on 22.9.2010 and the ruling by the Master Amaratunga on 27.5.2011.

2.	The grounds of appeal, on which the plaintiffs intend to rely on, are as follows:

a)	The Master Mr. Tuilevuka, on 22.09.2010 on a date which was not listed as a hearing date, erred in law and in fact in striking out the substantive action in the absence of the plaintiffs.
b)	The Master Mr. D. Amaratunga erred in law and in fact in ruling that the application for reinstatement subsequently filed on 8.10.2010 was not permissible.

c)	The Master Mr. A. Tuilevuka exceeded his jurisdiction in striking out a matter on 22.09.2010 on which it was not listed for hearing and for which he had no powers to strike out.

d)	The costs order made by the Master Mr. D. Amaratunga on 27.05.2011 is harsh, excessive, unjust and unreasonable.

e)	The Master failed to consider relevant considerations and took into account irrelevant considerations, which lacked evidence and any basis, when striking out this matter.

Chronology of Events

3.	A writ of summons with a statement of claim dated 4.5.2006 was filed by the plaintiff on 15.5.2006. Thereafter, having obtained leave, the plaintiff, amended the statement of claim. Then the 2nd defendant filed a striking out application but it was disallowed by the Master. Further, a leave was granted by the Master to join Mohan R. K. Prasad Company as a 2nd plaintiff. 

4.	On 16.04.2008, a request for further and better particulars was served on the plaintiffs. Accordingly, an affidavit providing further and better particulars was filed by the plaintiffs on 29.7.2010, and served on the defendants. 

5.	On 4.10.2010, Master Tuilevuka struck out the plaintiffs' action for want of appearance and that order was served on the plaintiffs on 6.10.2010. 

6.	On 8.10.2010, a Notice of Motion and affidavit in support for re-instatement was filed by the plaintiffs. On 6.4.2011, another Notice of Motion and an affidavit in support was filed by the plaintiff, requesting that the re-instatement application be called before a Judge. 

7.	However, the application was placed before the Master. Having heard both parties, the Master delivered his ruling on 27.5.2011, striking out the plaintiffs' application for re-instatement. 

8.	Having being aggrieved by the Master's ruling, the plaintiffs filed summons on 15.11.2011 seeking following orders:

i.	 An order that leave be granted to enlarge the time for appealing against the orders made by the Master Mr. A. Tuilevuka on 22.09.2010;

ii.	An order that leave be granted to appeal the ruling by the Master Mr. Deepthi Amaratunga as delivered on 27.05.2011;

iii.	An order that the orders made by the Master Mr. A. Tuilevuka on 22.09.2010 and ruling by the Master Mr. Deepthi Amaratunga on 27.05.2011 be set aside and quashed;

iv.	An order that there be a stay of any execution of the orders granted by the Master Mr. Tuilevuka on 22.09.2010 and the ruling by the Master Mr. Deepthi Amaratunga on 27.05.2011 pending the determination of this application;

v.	An order that this matter be reinstated as a proceeding and relisted on the High Court civil cause list;

vi.	An order that the orders of this court substitute the orders made by the Master Mr. Tuilevuka on 22.09.2010 and the ruling by the Master Mr. Deepthi Amaratunga on 27.05.2011;

vii.	That the cost of this application be costs in the cause; and,

viii.	That the parties be at liberty to seek further directions as required for better conduct of this action.

9.	In support of the summons, an affidavit was filed by a Litigation Clerk attached to Gordon & Chaudhary Lawyers.

10.	According to the affidavit, the reason for non-appearance of the plaintiff or their Solicitors on 22.9.2010 was that the High Court Registry had incorrectly put the name of the plaintiffs' solicitors and the plaintiffs' solicitors were not aware that the matter was listed for mention.

11.	It could be observed in the affidavit in support of Notice of Motion to re-instate the action, the deponent had annexed a copy of the Weekly Cause List dated 20.9.2010, in which the plaintiffs' solicitors name was typed as "Singh & Chaudhary Lawyers". Thus, it is apparent that the name of the plaintiff's solicitors was typed incorrectly. 

12.	Be that as it may, one of the main grounds advanced by the plaintiffs is that the Master cannot strike out a matter on a mention date merely because there was no appearance. 

13.	In the present action the minutes show that the plaintiffs have complied with various orders made by the Master. 

14.	When the matter was called before the Master on 20.9.2010, the Master could and should have set a time frame to have the pre-trial conference since the plaintiffs had commenced their action by way of Writ of Summons. Therefore, it is my considered view that the Master should not have struck out the plaintiffs' action solely on the ground of non-appearance. 

15.	It is to be noted that the plaintiffs by their Notice of Motion dated 06.04.2011 has asked that their application be placed before a Judge of the High Court. However, for reasons best known to them the High Court Registry had referred the plaintiff's application before Master Amaratunga. 

16.	It could be observed that Master Amaratunga in his ruling dated 27.05.2011 struck out the plaintiff's application for re-instatement on the basis that he had no jurisdiction to deal with it. 

Law governing the granting of the leave to appeal

17.	Section 12(2) of the Court of Appeal Act Cap 12 requires that leave be obtained from a judge of the High Court or of the Court of Appeal, if an appeal is going to be filed against any interlocutory order or judgment of the High Court except in certain circumstances.

18.	It is settled law that when an application for leave to appeal is made, the party so applying must show that the appeal has a good prospect of success, and if leave is not granted a substantial injustice and prejudice would cause to the appellant.

19.	In the present case when the Master Amaratunga's ruling is examined it is apparent that his conclusion is wrong in law hence, the plaintiff has a good prospect of success in his appeal. On the above premise I grant plaintiff leave to appeal the Master Amaratunga's order.

20.	The plaintiff in his summon also seeks leave to enlarge the time to appeal the Master Tuilevuka's order. Once the leave is granted to appeal the Master Amaratunga's order I do not see any necessity to deal with the application to enlarge the time to appeal the Master Tuilevuka's order.

21.	Now let me determine the plaintiff's substantive appeal.

22.	When the plaintiff's action was struck out by the Master Tuilevuka on 22.9.2010, it was not dealt with on merit but purely due to the non-appearance of the plaintiffs.

23.	It is apparent from the Master Amaratunga's ruling that he laid great stress on Trade Air Engineering (West) Ltd –v- Tuga 2007 FJCA 9 ABU 0062.

24.	However, the facts and the grounds on which Trade Air Engineering case was dealt with can easily be distinguished from the present case.

25.	Trade Air case dealt with a striking out order made under Order 25 Rule 9.

26.	Order 25 Rule 9 reads:

9(1)	If no step has been taken in any cause or matter for six months then any party on application or the court of its own motion may list the cause or matter for the parties to show cause why it should not be struck out for want of prosecution or as an abuse of the process of the court. 

27.	However, in the present case there was no such failure on the part of the plaintiffs. They have complied with all the steps ordered by the court. Further, the plaintiffs were never asked to show cause why their action should not be struck out. More importantly, the Master Tuilevuka has clearly stated in his order dated 20.09.2010 that the matter was struck out due to non appearance of the plaintiff's counsel. Therefore, it is my considered opinion that the striking out of the action by the Master on a mention date due to the non appearance of the plaintiff's counsel was legally unacceptable and also could not be considered as an order made under Order 25 rule 9 of the High Court Rules. 

28.	However, the 1st defendant submitted that the plaintiffs action was not struck out only for the reason that the plaintiffs' counsel failed to make an appearance on 22.09.2012 but there were 'unless orders' made by the court which were not complied with by the plaintiffs. 

29.	But when the order dated 22.09.2010 by Master Tuilevuka is read carefully, it is apparent that sole reason for the striking out of the action was the non appearance of the plaintiffs. 

30.	The order reads:

a.	'This action is struck out for non appearance by the plaintiffs and/or their solicitors; and,

b.	The plaintiff pay costs in the sum of $ 150.00 to the 1st and 2nd defendants.

31.	The above shows that, the striking out of the action by the Master A. Tuilevuka was not on merits but due to the absence of the plaintiffs' counsel. Had it been struck out by the Master Tuilevuka on merits after the adjudication of the issues, certainly the Master Amaratunga has no jurisdiction to re-open the case. Since it was struck-out for want of appearance, I do not see any reason as to why the reinstatement application cannot be heard by the same court. 

32.	Order 59 Rule 2 of the High Court Rules is very clear. According to Order 59 Rule 2, a party aggrieved by a ruling of the Master shall appeal after obtaining leave to do so. It is my view that the appellate provisions only apply to cases which were dealt with on merits by the Master. Further, if a matter was struck out for want of prosecution then the plaintiff is required to appeal against such an order.

33.	The facts of the present application when considered plainly shows that the striking out of the action on 22.09.2010 by the Master Tuilevuka does not fall under Order 59 Rule 2 nor does it fall under Order 25 rule 9 and therefore, the Master Amaratunga had jurisdiction to deal with the reinstatement application of the plaintiff. 

34.	As can be observed from the ruling dated 27.05.2011, the main reason for striking out of the reinstatement application by the Master Amarathunga was for want of jurisdiction. Paragraph 13 of the said ruling reads:

'In the circumstances this application to reinstatement cannot be dealt by this court for want of jurisdiction as held in Trade Air Engineering (West) Ltd v. Taga. The proper procedure was to make an appeal against the striking out order.' 

35.	Order 59 of the High Court Rules lays down the powers and jurisdiction of the Master. Under Order 59 rule 2, the Master also can exercise the same powers exercised by a judge in respect of the matters enumerated in Order 59 rule 2. Therefore, there is no legal impediment for the Master to exercise powers and jurisdiction exercised by a judge in all chamber applications relating to matters contained in Order 59 rule 2. 

36.	When an action is struck out by a judge for want of appearance by the plaintiff, the remedy available for the plaintiff is to make an application for a re-instatement before the same judge. Likewise, if such an order is made by the Master the remedy again should be a re-instatement application because an order to strike out an action for want of appearance cannot be considered as an order made on merit. However, this would be in total contrast to an order made by the Master under Order 25 rule 9 for want of prosecution. Thus, I am not inclined to accept the defendant's argument that the remedy should be an appeal against the Master Tuilevuka's order to strike out the matter.

37.	Further, Order 59 rule 3 provides for the Master to refer any matter to a judge if he thinks properly be decided by a judge.

Order 59 rule 4 reads:

The Master may refer to a judge any matter which the Master thinks should properly be decided by a judge who may either dispose of the matter or refer it back to the Master with such directions as may be necessary.

38.	If the Master Amaratunga was of the opinion that the re-instatement application could not have been dealt with by him for want of jurisdiction then he could have recourse to Order 59 rule 4, and should have correctly referred the matter to a judge. 

39.	Therefore, I conclude that the ruling delivered by the Master Amaratunga dismissing the plaintiffs' application for reinstatement on the basis that he had no jurisdiction was patently wrong in law. Hence, I set aside the order delivered by the Master Amaratunga on 27.05.2011 and also order that the plaintiff's action be reinstated. 

40.	Once the order is made to reinstate the plaintiff's action the question of setting aside the Master Tuilevuka's order does not arise.

41.	The orders of the court are:

i.	Order made by the Master Amaratunga on 27.05.2011 is set aside.

ii.	The action is reinstated and the registry is directed to place the matter before a judge.

iii.	Costs shall be in the cause.

Pradeep Hettiarachchi
JUDGE