In the High Court of Fiji at Suva 
Probate Jurisdiction 
HPP Action No. 06 of2018 
In the matter of Jan Sahib aka Sheik Jan Sahib and In 
the matter of an application pursuant to Section 23 of 
the Succession, Probate and Administration Act and 
Order 85 ofthe High Court Rules, 1985. 
Sheik Nizamul Sahib of Sydney 
Plaintiff 
And 
Zeena Tun Nisha aka Jinatun Nisha 
of Nailuva Road, Suva 
First defendant 
Fahiruna Nisha, Sheik Mukhtar 
Saheb, Sheik Faruk Saheb, Nazmun 
Nisha, Sanina Bi Saheb as 
Adminstratrix of the estate of t 
Sheik Liaquat Saheb 
Second defendant 

COUNSEL: 
Date of hearing: 
Date of Ruling: 

Ms 1. Lutu for the plaintiff 
Ms D. Gandhi for the first and second defendants 
15th October,2018 
16th October,2018 
Ruling 

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1. By summons dated 2nd October,20 18, the plaintiff moves that this action be reinstated. 
2.	Mr Shelvin Singh, Barrister and Solicitor in his affidavit in support states that his firm Shelvin 
Singh Lawyers, solicitors for the plaintiff took over the brief in this case from AP Legal, but 
by inadvertence on his part, he did not enter an appearance on 28 September,20 18, when this 
matter was struck out. 

3.	The first defendant, in her affidavit in opposition states that she is not in a position to state 
when Mr Shelvin Singh received instructions from the plaintiff. Shelvin Singh lawyers only 
filed notice of change of solicitors on 2 October, 2018, after the action was struck out on 28 
September,20 18. AP Legal was still on record for the plaintiff on that date, but failed to appear. 
If Mr Shelvin Singh had instructions, he had a duty to his client to appear on 28 
September,2018. He had no locus standi to appear on that date, as he had not filed his notice 
of change. He should have filed his notice of change of solicitors before 28 September,20 18. 
She is advised that inadvertence is not a ''proper ground' to have the matter reinstated. There 
are no valid grounds for the Court to exercise its discretion to reinstate this matter. The plaintiff 
does not have a valid cause of action. He filed an originating summons HPP Action No. 04 of 
2016. The Court held that the application was incorrectly brought. The writ in the current action 
is not issued in compliance with Or 76. 
4.	At the hearing, Ms Lutu, counsel for the plaintiff submitted that Or 35,rl enables a Court to 
strike out a matter for want of appearance only on a hearing date. In the present matter, the 
case was fixed for mention. The defendant's application for striking out under Or 18, r 18 has 
not been heard nor determined. 
5.	Ms Gandhi, counsel for the defendant in reply reiterated the matters contained in the affidavit 
in opposition ofthe first defendant. She submitted that the reasons given by Mr Shelvin Singh 
for not appearing on 28 September,20 18, were inadequate. There is no evidence that he had 
instructions to appear on that date. In terms of Or 67, r 1, until notice of change of solicitor is 
filed and copy served, the solicitor on record represents the party. An action can be struck out 
on a calling date .Ms Gandhi, submitted further that the case filed by the plaintiff is an abuse 
of process. 
6.	On 12 September,2018, the defendant filed an application for striking out the plaintiffs under 
under Or 18 r(1)Ca) and (d). On 28 September,2018, when this matter was called, the plaintiff 
was absent and unrepresented. Ms Gandhi moved that the case be struck out. 
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7.	This application for reinstatement is concerned with my order of 28 September,20 18, striking 
out the plaintiffs case on a calling date, due to non-appearance of plaintiffs counsel. 
8.	Ms Gandhi cited the case of Singh v Purnima, (Civil Action no 13 of 2014). In that case, 
Ajmeer J cited the judgment of Hettiarachchi J in Prasad v Rup Investments Ltd, [2012] 
FJHC 1396; HBC182.2006 (19 October 2012) as follows: 
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 .... 
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 . 
.. 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. (emphasis added) 
9. The words which I have emphasised in this passage are apposite. 
10. Having considered the matter further, I have come to the conclusion that it is in the interests 
of justice to reinstate this matter, in order that the application of the defendants for striking out 
of the plaintiff s action be heard and determined. In the exercise of my discretion, I order that 
the plaintiff s action be reinstated. 
11.	Orders 
(a) The plaintiffs application for reinstatement is allowed. 
(b) I make no order as to costs. 

A.L.B. Brito-Mutunayagam 
Judge 
16th October, 2018 

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