– incapable of being revived

IN 1960, Chief  Justice  J.A. Luckhoo deemed an Action between  Cunningham and Lee abandoned and incapable of being  revived. The trouble started when the plaintiff, who had been granted an ex-parte application for an interim injunction, neglected to  file a ‘Statement of Claim’ and  ‘Affidavit in Reply’, resulting in no further document being filed in the matter within  a year.  
The writ of summons in an action was filed on November 26, 1956.   On that day, an interim injunction was granted the plaintiff until the final determination of a summons returnable 
But on December 22, 1956,  leave was granted to the  plaintiff  to file an affidavit in reply  to certain affidavits in opposition  by January 5, 1957 .
On January 12, 1957, a Judge in Chambers  directed that the matter be transferred to another Judge  in Chambers for fixture.   The application never came up  in court again.
The Statement of Claim was never filed, as were no further documents for over a year.
After taking the foregoing circumstances into consideration, the Judge in Chambers, Justice  Luckhoo, said that the action must be deemed to have become  abandoned and incapable of being revived.
The Order was made accordingly.
At the hearing, Mr.  J.O.F. Haynes, Attorney-At-Law,  appeared  for the plaintiff, Cunningham,  while Mr. Carlos Gomes represented  the  defendants,  Manbhola and Balkisoon.
In his ruling, Justice Luckhoo was quoted as saying: “The Registrar seeks to determine whether  or not  the action  shall by virtue of the provisions of Ordinance 32, Regulation 9 of the Rules of the Supreme Court, 1955 , be deemed altogether abandoned and incapable of being revived.
“The writ of summons in the action was filed on the 26th November, 1956.   On  that date was also filed an ex parte application,  by way  of affidavit,  for the interim injunction,  which, on the same date, was granted  the plaintiff until the final determination of a summons returnable  for the 8th  December  1956.   By the 12th  December, 1956, service of the summons  had been effected  on all of the defendants  and certain affidavits  in opposition  to the plaintiff’s  affidavit in support  of the summons had also been filed.
“On the 22nd December, 1956, leave was granted the plaintiff to file an affidavit  in reply on or before 5th  January, 1957, and  the  summons was adjourned  to the 12th  January, 1957, on which date of the application  of the  defendant T. Lee,  the matter was directed by Clare J.  to be transferred to my Court for fixture.  No affidavit in reply was ever filed by the plaintiff.   I can find no trace on the flysheet of the file, or in my summons minute books of the matter ever having been brought before me  in compliance with the  direction given by Clare J.   The flysheet on the file discloses that no further proceeding  was taken  or document filed  in the matter  since Clare J’s direction  on the 12th January, 1957, and up to the 2nd January  1960, when the matter was set down for consideration as to whether it shall be deemed abandoned  and incapable  of being revived.”
After taking certain aspects of the case into consideration, the Chief Justice said:  “Having regard to the provisions of Ordinance  32, Regulation  3 (1), it seems clear  that the matter has never  become ripe  for hearing .
“In such circumstances, hearing of the action  could not be requested under Ordinance 32, Regulation  1, and for that reason, the matter could not be deemed deserted  under O. 32, r. s.   That being so,  the matter could not be deemed  altogether abandoned  and incapable of being  revived  by virtue  of the provisions  of paragraph (b), or of paragraph (c) of  O. 32, r. 9 (1).
“It is conceded that the parties have not taken  proceeding or filed any document  in the action for over one year  from the date of the last proceeding had  or the filing  of the last document  in the action.
“Solicitor for the defendants,  Manbhola and  Balkisoon, contends that under the provisions of O. 32, r. 9 (1) (a), the matter shall be deemed  altogether  abandoned  and incapable  of being revived.  Counsel for the plaintiff, however,  contends  that where interlocutory  proceedings are  pending,  the provisions of r. 9 (1) (a) of that Order are not operative.
“The proceedings of O. 32, r. 3 (2), do not prohibit pleadings  in an action  from being filed  by the parties  while interlocutory proceedings  are still pending.   It is therefore possible for pleadings and documents  to be filed in an action,  even though interlocutory proceedings are pending.   If this is done,  there would be no failure to file a further pleading or document,  and the provisions of O. 32, r.9 (1) (a), would be inoperative.
“However, it is possible that a defendant may fail to take a proceeding  or file a document  even though the plaintiff  may have complied with the provisions  of O. 11  or O. 25  relating to notice of default of the defendant  to enter appearance,  or to  file his statement of defence as the case may be.   In such a case, if interlocutory proceedings are pending,  and more than one year has elapsed  since  the date of the last proceeding taken or document filed, there would be no default of the plaintiff  but rather  the default  of the defendant.
“In the present case, the plaintiff, who claimed ownership  of certain immovable property,  sought an Order for an interlocutory injunction until the determination of  the  action to  restrain the defendant,  Lee, from passing   a transport of that property  to the  other defendants.  The plaintiff could have filed his Statement of Claim, but did not do so.  The nature of the  interlocutory proceedings did not prevent this.  Had he done so, and  the defendants  or any of them  had failed to file their statement of defence,  there would have been no failure  on the part of the plaintiff  to file any document,  or to take any proceeding within one year  after the last proceeding taken on the last document  filed.
“However, the plaintiff, having neglected  to file his Statement of Claim, cannot ask for an Order  under  O. 32, r. 3 (2) that the matter shall become ripe for hearing.
“In the circumstances, the matter falls to be determined under  O. 32, r. 9 (1), and the matter must be deemed to have become abandoned and incapable of being revived.”