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Singh (trading as Thakur's Maintenance & Landscaping) v Damodar [2021] FJHC 374; HBC151.2019 (13 December 2021)

IN THE HIGH COURT OF FIJI AT SUVA

CIVIL JURISDICTION

Civil Action No. HBC 151 of 2019

BETWEEN

ARUNA KUMARI SINGH T/A THAKUR’S MAINTENANCE & LANDSCAPING aka

THAKUR’S MAINTENANCE & LANDSCAPING having its principal

place of business at Lot 5, Block 2 Rampur,

Nakaulevu, Deuba,

PLAINTIFF

AND

ISHWAR LAL DAMODAR of Mal Street, Suva, being the registered proprietor of

Lot 19, Certificate of Title Number 9737 on DP 2336.

DEFENDANT

Counsel : Mr. A Chand with Ms. S. Dutt and Ms, S. Dass for the

Plaintiff.

Mr. E. Kumar for the Defendant.

Date of Hearing : 19^th November 2021

Date of Ruling : 13^th December 2021

RULING

(On the Application for Amendment of Pleadings)

[1] The plaintiff instituted these proceedings against the defendant on 21^st May 2019 and on 21^st December 2020 filed the amended statement of claim seeking the following reliefs:

1. A declaration that the plaintiff be compensated as follows:
   1. Sum of $115,296.44 be paid immediately;
   2. Sum of $48,939.22 be paid immediately;
   3. Sum of $15,000.00 be paid immediately;
2. Damages including Punitive, Exemplary and General Damages;

100. Pre and post judgment interest.

4. Costs
5. Any other award that this court deems just.

[2] After the filing of the original statement of claim the defendant filed his statement of defence 25^th June 2019 and the plaintiff filed her reply on 10^th July 2019. The defendant then filed his amended statement of defence and counter claim on 25^th July 2019. On 21^st December 2020 the plaintiff filed an amended statement of claim. On 18^th January 2021 the defendant filed his statement defence and counter claim to the amended statement claim filed on 21^st December 2020.

[3] On 02^nd February 2021 the defendant filed summons seeking the following orders:

1. That leave be granted to the defendant to amend its statement of defence and counter claim
2. The costs of this application be costs in the cause.

[4] Order 20 rule 5(1) of the High Court Rules 1988 provides:

Subject to Order 15, rules 6, 8 and 9 and the following provisions of this rule, the Court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct.

[5] In Patel v Vuvale Resort Ltd [2016] FJHC 1072; HBC153.2014 (25 November 2016) the court cited with approval the following principles enunciated Ketteman and Others v Hansel Properties Ltd (1988) 1 All ER 38;

“Whether or not a proposed amendment should be allowed is a matter within the discretion of the judge dealing with the application, but the discretion is one that falls to be exercised in accordance with well-settled principles. In his interlocutory judgment of 10 December 1982, allowing the proposed amendment, Judge Hayman set out and quoted at some length from the classical authorities on this topic. The rule is that amendment should be allowed if necessary to enable the true issues in controversy between the parties to be resolved, and if allowance would not result in injustice to the other party not capable of being compensated by an award of costs.

[6] In Sundar v Prasad [1998] FJCA 19; Abu0022u.97s (15 May 1998) the Court of Appeal on the question of amendment of pleadings made the following observations:

Generally, it is in est intt interest of the administration of justice that the pleadings in an action should state fully and accurately the factual basis of each party’s case. For that reason amendment of pleadings which will have that effect are usually allowed, unless the other party will be seriously prejudiced thereby (G.L. Baker Ltd. v. Medway Building and Supplies Ltd [1958] 1 WLR 1231 (C.A.)). Tht to be applied lied is whether the amendment is necessary in order to determine the real controversy between the parties and does not result in injustice to other parties; if that test is met, leave to amend may be given even at a very late stage of the trial (Elders Pastoral Ltd v. Marr [1987] NZCA 18; (1987) 2 PRNZ 383 (C.A.owevHowever, the later the amendment the greater is the chance that it will prejudice other parties or cause significant delays, which are contrary to the interf the public in the expeditious conduct of trials. When lean leave to amend is granted, the party seeking the amendment must bear the costs of the other party wasted as a result of it.

[7] Order 20 rule 5 of the High Court Rules 1988 confers a right on the parties to amend their respective pleadings for the purpose of presenting their claim before the court clearly and completely.

[8] The question in this matter is, if the court allows the amendment, it will cause any prejudice to the plaintiff. The plaintiff avers in his affidavit in response that he does not see any justice will be given to him if the application for amendment is allowed. The basis of this submission, as I understand from the submissions filed, is that the defendant has amended the statement of defence on several occasions. There is no restriction in law that the pleading cannot be amended more than once. The plaintiff also submits that the defendant by proposing these amendments to the statement of defence, is trying to drag this matter. The defendant has explained the reason for this amendment which is, that he discovered certain receipts later.

[9] It is also important to note that there is no inordinate delay on the part of the defendant. As we all know since these proceedings were instituted the courts were not functioning for a long time due to Covid 19 pandemic. Even if there is a delay on the part of the defendant that court cannot refuse the application for amendment and all what the court can do is to order costs which will sufficiently compensate the plaintiff.

[10] The plaintiff also avers in the affidavit in response that the defendant’s claim is not genuine and is vague. Whether the defendant’s claim is not genuine is not a matter that can be decided at this stage. On the other hand, the plaintiff has not given any reason to substantiate his allegation.

[11] For the above reasons the court is of the view that it should allow the application for amendment of the statement of defence and counterclaim subject to costs. The court is also of the view that the award of $500.00 as costs would be reasonable.

ORDERS

1. The application of the defendant to amend the statement of defence and counter claim is allowed.
2. The defendant is ordered to pay $500.00 to the plaintiff within 14 days, as costs of this application.
3. The amended statement of defence and counter claim should be filed within 14 days.
   

Lyone Seneviratne

JUDGE

13^th December 2021