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Permalan v Raj [2012] FJMC 244; Civil Case 79.2010 (9 May 2012)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Civil Case No 79/10

BETWEEN

PERMALAN

AND

DHARMA RAJ

RULING

1. The Plaintiff instituted this action on the 14th May 2010 to get a judgement in the sum of $ 8128.16 against the Defendant. The Defendant filed his statement of Defence denying the claim.
   
2. On the 19th October 2011 when the case was mentioned to fix a hearing date there had not been any appearance for the Plaintiff. Accordingly the Court had struck out the claim.
   
3. Later on the 24th October 2011 the Plaintiff filed a notice of motion seeking that the matter may be re instated. Further an affidavit from a Barrister and Solicitor from the Vijay Naidu & Associates was also filed to support the application.
   
4. Paragraph 4 of the said affidavit reads as follows;
   

"That on 19th October 2011 I had altogether 5 matters listed in the Magistrate's Court, Lautoka, out of which 3 matters were in Court No 1 and 2 matters in Court No 3. Firstly I appeared before the Honourable Magistrate in Court 1. As soon as I finished the matters in Court No 1, I proceeded to Court No 3 where this matter was listed but by the time I arrived, the said matter was already called and due to my non appearance the matter was struck out."

5. The Defendant filed an affidavit opposing the application to reinstate the matter.
   
6. I have considered the affidavits filed by both parties.
   
7. It should be noted that there are established practices and traditions in the Court system and in the legal fraternity. It would be absurd to imagine that a Court would stand down a matter without a reason or without an application to do so. Although at times a Court may stand down a case for the parties to appear it should not be taken for granted or misconstrued as a right of the parties. A Court has no obligation to wait for the parties to come. It is the primary duty of the parties to a case to appear in Court on any given dates.
   
8. It is understandable that at times some Counsel may have to appear in several Courts on a single day. But it should be noted that it is not an excuse if a Counsel is double booked. However it is the duty of the Counsel to arrange another Counsel to make an appropriate application to Court in case he has a difficulty to appear on time. It is not only the duty of the Counsel but also of the Plaintiff as well. At least the litigant should be present in Court if the Counsel is in a difficulty to appear. It would not be prudent for a legal practitioner to take the courteousness of the Court for granted in the long run.
   
9. I am not satisfied about the reason given regarding the non appearance on behalf of the Plaintiff. However I decide to re instate the matter in the interest of justice subject to $ 100 dollars cost.
   
10. Thus I order the Plaintiff to pay $ 100 cost to the Defendant before the next date.
    

Rangajeeva Wimalasena
Resident Magistrate
Lautoka

09.05.2012