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Utopia Foods Ltd v Kumar [2013] FJMC 265; Nadi Civil Case 17.2004 (2 July 2013)

IN THE RESIDENT MAGISTRATES COURT
AT NADI WESTERN DIVISON
[CIVIL JURISDICTION]

NADI CIVIL CASE NO. 17 OF 2004

BETWEEN:

UTOPIA FOODS LIMITED &
CHEDLY KHALEK
PLAINTIFFS/APPLICANTS

AND:

SOBIT SACHIN KUMAR &
VONIPATE RABOILIKU
DEFENDANTS/RESPONDENTS

Before : Mr. M. H. Mohamed Ajmeer, Resident Magistrate, Nadi
Date of Ruling : Tuesday 02 July 2013

Appearances
For The Plaintiff : Messrs Patel & Sharma, Barristers &Solicitors, Nadi
For The Defendants : P & N Lawyers, Barristers & Solicitors, Nadi

RULING [ON REINSTATEMENT]

1. This is an application made by the Plaintiff seeking re-instatement of the matter to the cause list.

2. On 30 November 2011 the Plaintiff filed a notice of motion together with the Affidavit of Chedly A. Khalek sworn on 29 November 2011 and filed on 30th November 2011; and seeking that:

(a). That the judgment (struck) was entered in default of appearance on the 18th day of October, 2011 against the 1st and 2nd Plaintiffs be granted leave to defend (prosecute) the action.

(b). That all further proceedings entered on the said judgment in default in this action herein be re-instated to cause list.

(c). That the cost of this application be cost in the cause.

3. This application for reinstatement is opposed by the Defendants. The second Defendant filed an affidavit in Response sworn on 28th day of May 2012 and prayed that the judgment entered together with costs against the Plaintiff on 18th day of October 2011 be remained.

4. This application has been made pursuant to Magistrate's Court Rule, Order XXX r. 6 which provides:

"Any civil cause struck out may, by leave of the Court, be replaced

on the cause list, on such terms as to the Court may seem fit".

5. The substantive action has been brought by the Plaintiff against the Defendant on 04th February, 2004. The claim of the Plaintiff was struck out on 18th October 2011 by the Court for non-appearance of the Plaintiffs.

6. Mr. Chedly A. Khalek in his supporting affidavit deposes the reasons for default of appearance in paragraphs 10 and 11. He states that he attended the Court on 18 October 2011 at 10.25 for the hearing. He further states that he reasonably believed that the matter had been fixed on that day (18/10/11) at 11.30am. Whereas the matter was called earlier than 11.25 and the claim was struck out on the ground of non-appearance of the Plaintiff and want of Prosecution.

7. Mr. Chedly further states in his affidavit that he has a genuine and meritorious claim against the second Defendant as per the Statement of Claim filed herein in the action.

8. The second Defendant in the Affidavit sworn on 28 May 2012 in response to the Affidavit of Chedly A. Khalek denies averments 4 to 15 of the Plaintiff's Affidavit, while admitting to averments 1 to 3 of the Plaintiff's Affidavit. However, averments 16–18 of the Plaintiff's affidavit have not been denied by the opposing party. Hence averments 16-18 may be assumed as admitted by the opposing party, the Defendant. In the result the facts as averred by the Plaintiff that he has a genuine and meritorious claim and the second Defendant would not be prejudiced if this matter were to be re-instated to the cause list (para16 and 17 of the Plaintiff's Affidavit).

9. The substantive matter has been struck out for want of prosecution at 9:30am on 18 October 2011. The Plaintiff says he came to Court by 10:25am on that date and by that time his matter had already been struck out.

10. The Plaintiff filed his written submissions regarding the re-instatement application. Wherein he submitted that the absence of the Plaintiff was not deliberate and the matter was called before its scheduled time resulting in the striking out of the matter.

11. The second Defendant never filed his written submissions although he had obtained numerous dates for that purpose.

12. The matter has been struck out on 18 October 2011. The Plaintiff has filed the re-instatement application on 30 November 2011. I would say he had filed the re-instatement application without delay. He cannot be found guilty of inordinate delay. He has shown due diligence in filing this application.

13. When considering an application for re-instatement Court must always stand back and have regards to the interest of justice.

14. Any civil cause struck out may, by leave of the Court, be replaced on the cause list, on such terms as to the Court may seem fit, O. XXX r. 6, MCR.

15. I am satisfied that the Plaintiff has a genuine and meritorious a claim against the Defendant and that his default in appearance in Court on 18 October 2011, the day on which action was struck out, was not deliberate.

16. In the circumstances, I set aside the striking off order made on 18 October 2011 and grant leave to have the matter replaced on the cause list. Costs shall be cost in the cause.

Orders

17. (a). The striking off order made on 18 October 2011 is set aside;

(b). Leave is granted to have the matter replace on the cause list; and

(c). Costs shall be costs in the cause;

(d). Orders accordingly.

..................................

M. H. Mohamed Ajmeer

Resident Magistrate

At Nadi this 2nd day of July 2013