Dalip Kumar v. Macuata Tikina Holding Limited

• Jurisdiction: Fiji
• Court: High Court (Fiji)
• Judgment Date: Invalid date
• Docket Number: CIVIL ACTION NO. HBC 65 OF 2014 Judgment and hearing: 5 July 2016
• Date: Invalid date
• Counsel: Mr. S. Sharma, for the Appellant,Mr. S. Valenitabua, for the Respondent

IN THE HIGH COURT OF FIJI

AT LABASA

CIVIL JURISDICTION

CIVIL ACTION NO. HBC 65 OF 2014

IN THE MATTER of an application by the plaintiff under section 113 of the High Court Rules 1998

Between:

Dalip Kumar by himself his family and other occupants of Tuatua, Labasa, occupation unknown

Appellant (ORIGINAL DEFENDANT)

v.

Macuata Tikina Holding Limited a limited liability company having its registered office at Ground Floor, Ratu Raobe building, Nanuku Street, Labasa

Respondent

Counsel:

Mr. S. Sharma, for the Appellant

Mr. S. Valenitabua, for the Respondent

Judgment and hearing: 5^th July 2016

Introduction

1. This is an appeal from the decision of the Master made in terms of Order 113 of the High Court Rules of 1988. The Plaintiff — Respondent (the plaintiff) had instituted this action in terms of the Order 113 of the High Court Rules of 1988 for the eviction of the Defendant — Appellant (the Defendant) from the premises more fully described in the Originating Summons. The Master granted the orders in terms of the said summons, thus an order for eviction was made on 21^st January, 2016. This is an appeal from the said order

2. Preliminary Issue was raised by the counsel for the Defendant in terms of the Order 59 rule 17 of the High Court Rules of 1988

3. Order 59 rule 17 of the High Court Rules of 1988 deals with the ‘procedure after filing the appeal and it reads as follows;

17(1) the appellant shall, upon serving the notice of appeal on the party or parties to the appeal file an affidavit of service within 7 days of such service.

(2) The appellant shall, within 21 days of the filing of notice of appeal, file and serve a summons returnable before a judge for directions and a date for the hearing of the appeal.

(3) If this rule is not complied with, the appeal is deemed to have been abandoned.’

4. The perusal of the file would indicate that the “Notice and Grounds of Appeal” was filed on 1^st February,2016 but had not filed Summons for Directions as required by the Order 59 rule 17(2).

5. In the circumstances the resulting position is that the ‘appeal is deemed to have been abandoned’ in terms of the Order 59 rule 17 (3) of the High Court Rules of 1988. The appeal is struck off and dismissed.

6. Without prejudice to what is stated above I will deal with the merits below.

7. In C M Van Stillevoldt BV v El Carriers Inc [1983] 1 All ER 699 at 700–701 Griffiths LJ held,

‘The plaintiffs submit that my jurisdiction is the same as that of a judge in chambers when...