Supreme Court of Mauritius, 13 mai 2026, 2026 INT 117 – DEVENDRANANTH HURNAM VS NIRMALA DEVAT & ORS- Ruling

1

DEVENDRANANTH HURNAM VS NIRMALA DEVAT & ORS – Ruling

2026 INT 117

DEVENDRANANTH HURNAM VS NIRMALA DEVAT & ORS Cause Number: 754/2025 THE INTERMEDIATE COURT OF MAURITIUS (CIVIL DIVISION) In the matter:- DEVENDRANANTH HURNAM Plaintiff VS NIRMALA DEVAT SPJ Defendant In the presence of:- 1. R. SEEBALUCK JUDGE SURAJ 2. GOPEENAUTH 3. N K GOJADHUR Co-Defendants

RULING

INTRODUCTION The Plaintiff has entered a case against the Defendant and C0-Defendants praying for a judgment condemning and ordering the Defendant to pay to the Plaintiff the sum of Rs 2 million with interests and costs.

PRELIMINARY OBJECTIONS Whilst reserving her rights to file a plea on the merits, the Defendant has raised preliminary objections with regards the Proecipe entered by the Plaintiff and they read as follows: 1. The Proecipe as presently drafted, constitutes an abuse of process of the court, is vexatious, frivolous and scandalous. 2. The Proecipe as it stands, fails to disclose a valid cause of action quoad the Defendant. 3. Plaintiff cannot proceed with the present action against the Defendant as the latter is immune from civil suits in the discharge of any responsibility of a judicial and administrative nature. 4. Plaintiff has made a number of averments which are immaterial, unnecessary and merely to embarrass the Defendant. 5. Plaintiff is making a collateral attack of the decision taken by Co-Respondent No.1 through the present Proecipe. 6. The Present case does not require that it be heard before the full bench of 3 magistrates. Following the amendment to Preliminary objections, the Defendant has moved that the Proecipe be set aside with costs. The Co-Defendant No.1 has also raised preliminary objections with regards the Proecipe entered by the Plaintiff and they are as follows: Co-Defendant No.1 moves that the proecipe/plaint with summons be set aside quaod him inasmuch as – (a) The latter is immune from civil suits in the discharge of any responsibilities of a judicial and administrative nature; (b) The present action constitutes an abuse of the process of Court for the following reasons – (i) The Plaintiff is through the backdoor making a collateral attack on the proceedings in relation to the case bearing reference JIC 1196/2024; (ii) The Plaintiff has made frivolous and vexatious averments quoad Co- Defendant No.1 who was performing his responsibilities of a judicial nature. (c) Plaintiff has failed to identify the proper procedure for seizing the jurisdiction of the present Court.

The Plaintiff has filed a reply in opposition to the objections of the Defendant and Co- Defendant No.1. With regards to the objections raised by the Defendant, the Plaintiff’s reply is as follows: 1. Grounds 1, 2, 4 & 5 should be taken once pleadings are concluded. 2. Ground 3 is an abuse of the process of the court as no judicial decisions is being attacked whilst the facts and matters averred are not Coram Judice but such facts constitute, instead unwarranted interferences with Co-Defendant No.1; 3. Ground 6: Power is vested in the President of the Intermediate Court and the views of Defendant as set out is most inappropriate whilst the alleged observation that heading of the Plaint be amended to read Proecipe is ultra vires Section 4 of the DIC and 4. Defendant be ordered to conclude Pleadings and file her defence in the absence of a Jurisdictional Objection and if the averment is meant that the entire case constitutes an abuse of process or is frivolous/vexatious, it should be raised as a plea in limine litis, not as a Preliminary Objection Re “Aldi Guidelines”. Plaintiff must know which averments are allegedly vexatious and evidence has to be heard. Or alternatively Defendant, if so advised, be not inhibited to move for striking out certain parts of the Pleadings. The Plaintiff’s reply in opposition to the objections raised by the Co-Defendant No.1 read as follows: 1. All the objections raised by Co-Defendant No.1 are an abuse of the process of the court as again (i) non coram judice is applicable (ii) Grounds of abuse of process cannot be raised in limine (iii) his judgment was appealed and the Supreme Court on the 16

October 2025 set aside his perverse ruling and remitted the matter to him to be decided anew but he again undermined the legal remit which is subject of an appeal and on 25 November 2025 a motion was made whether Co-Defendant No.1 “is amenable for criminal proceedings and he be (a) prit a partie under Articles 505 of the CPC for breach of Article 4 of the CCM SCR No. 127658 (SC/73/25) and therefore his objection as to an alleged collateral attack is injudicious and unrealistic whilst his averments in his ground (c) “Plaintiff has failed to identify the proper procedure for seizing the jurisdiction of the present court” flies in the face of the above motion which shows his perverse state of mind. 2. Co-defendant N0.1’s decision is not being attacked but facts averred of staying his chambers duties on the relevant date and time to confer with Defendant on the application of Plaintiff remains objectionable and since there is no prayer against him, save that his presence is required in this matter Re VORSTER C.D.K VS THE

STATE OF MAURITIUS & ORS (2020) SCJ 127 & CAMIAH D VS AISPROP INVESTMENT LTD (2025) SCJ 221, he is not inhibited from filing his plea and even put in a counter-claim if he be so advised.

FINDINGS For the purposes of the present case, arguments have been heard on behalf of the Plaintiff and Counsel for the Defendant on the issue of whether the preliminary objections can be raised before pleadings are exchanged. Counsel for the Co-Defendant No.1 has joined in the submissions of Counsel for the Defendant. We have therefore constrained our ruling to the Plaintiff’’s reply numbered 1 and 4, to the effect that the preliminary objections cannot be heard at this stage and should be entertained once pleadings are concluded. A preliminary point has been equated to a point taken in limine in the case of AVIGO CAPITAL MANAGERS PVT LTD v AVIGO VENTURE INVESTMENTS LIMITED (2019) SCJ 158. The Court held that: “The latin words in limine literally mean “at the threshold” and a plea in limine is one which is taken as a preliminary point”. Having said that, a Plea in Limine Litis is generally taken after an exchange of pleadings in the course of a Plea. A preliminary objection is taken beyond the ambit of a plea. There is no express provision in the DISTRICT, INDUSTRIAL AND INTERMEDIATE COUR T RULES precluding parties from raising a preliminary objection before a plea is filed. We have therefore turned to the SUPREME COURT RULES (RE: JHUNDOO VS JHUREE (1981) SCJ 98). It is noteworthy that the RULES OF THE SUPREME COURT 1903 prohibited a demurrer, which is a preliminary objection, to be raised without pleadings on the merits of the case in Rule 18. However, the RULES OF THE SUPREME COURT 1903 have been repealed and replaced by the SUPREME COURT RULES 2000 wherein the prohibitory Rule 18 has not been re-enacted hence rendering open the possibility for a party to raise a preliminary objection before the plea is filed. There is now a general rule that a point of law may be raised at any point during trial. (RE: SILVER WINGS TRAVEL LIMITED v KHOD ABUXBIBI SHAHEENAND ORS (2025) SCJ 280). However, a distinction must be made between a preliminary objection constituting only a point in law and a preliminary objection involving an element of fact to be proved.

It was said in the case of PARTNERS IN PERFORMANCE GLOBAL SOLUTIONS V ENDEAVOUR MINING CORPORATION (2020) SCJ 93 that :

“It is settled practice that in certain cases, a defence is not put in a plea on the merits but is simply taken as an objection in law ex-facie the plaint such as when a plaint is time barred or a plaint does not disclose a cause of action (vide Court of Civil Appeal in Barclays Bank Mauritius Limited v Best Construct Co. Ltd [2017 SCJ 179 endorsing M. C. Blencowe v E. Brousse de Gersigny Fallot [2017 SCJ 128]. The Court of Civil Appeal further stated the following:

“when a plea in limine is based on the actual veracity of a fact which has been averred, then the Court will have to hear evidence of that fact. For example, if in a plea in limine raising a question of jurisdiction it is averred that certain events took place outside Mauritius, the Court will have, if such a fact would oust its jurisdiction, to hear evidence of the averred fact and decide on its veracity in order to determine the plea in limine”.

We therefore find that where the contents of a preliminary objection are restrictively limited to a point of Law, without any matter of fact to be proved, the preliminary objection can be taken before the Plea is filed. We find comfort in our reasoning from the case of HURNAM D v THE ATTORNEY GENERAL (2013) SCJ 423 which is a case where pleadings were by way of affidavit evidence and where the Court explained that:

“preliminary objections consisting purely of points in law – for example, in matters of jurisdiction or limitation of action – as when a plea in limine to that effect is raised, may be taken at the initial stage even before filing the affidavit in defence on the assumption that the averments in the affidavit in support of the motion are accepted by the respondent in the case. Such preliminary points in law may more appropriately be taken initially in order to determine whether the proceedings can continue or not. It may also better serve the interests of justice that these matters, or any points in law which must necessarily be dealt with at the outset, be dealt with first in order to determine whether the applicant is entitled in law to proceed with the application”.

The Court concluded:

“We therefore hold that in a case entered by way of motion supported by affidavit, the Court may hear points of preliminary objections in law, such as a point of jurisdiction or one that must necessarily be dealt with at the outset, before an affidavit in defence has been filed on the assumption that the respondent accepts the averments in support of the motion. But if a preliminary objection in law is accompanied by any averment of facts, irrespective of whether the facts are sought to be canvassed in argument or not, the said objection should be taken in the affidavit in defence before the preliminary objection can be argued”.

The same principle applies to a case entered by way of a Plaint. (RE: RAMGOOLAM N. DR GCSK FRCP v. THE STATE OF MAURITIUS & ANOR (2020) SCJ 91) , the test being whether the Defendant is entitled to proceed by way of preliminary objections without filing a defence on the merits on purely matters of law in order to determine whether the proceedings can continue or not.

We are alive to the judgment in the case of DEVENDRANATH HURNAM VS YEUNG KAM JOHN YEUNG SIK YUEN & ORS bearing Cause Numbers 1847/2008, 1849/2008, 1851/2008, 1882/2008 delivered before the Intermediate Court of Mauritius whereby the Court held that the Defendants could not raise preliminary points in law without pleading on the merits of the case since the Court needed to be in presence of certain facts and circumstances before being in a position to make a pronouncement on the points raised. We find that the case of DEVENDRANATH HURNAM VS YEUNG KAM JOHN YEUNG SIK YUEN & ORS can be distinguished from the present case as the points raised are not the same. Also, the judgment is not binding on the present case.

The purpose of preliminary objections in law to be raised before the case being taken on the merits is for the case to be disposed of without reliance on evidence. It was said in the case of AVIGO CAPITAL MANAGERS PVT LTD v AVIGO VENTURE INVESTMENTS LIMITE D (SUPRA) that: “Points which are more appropriately raised in limine are those which, by reliance on the pleadings only and without having recourse to the production of evidence, or by the production of a significantly limited amount of evidence in relation to the point raised in limine, could dispose of the case and avoid protracted hearing of the whole evidence in the case”. We have considered the points raised as preliminary objections in the present case. They pertain to relevant points in law which the Defendant and/or Co-Defendant No.1 are

entitled to raise to warrant the intervention of the Court. The preliminary objections question whether the Proecipe is vexatious, frivolous, scandalous, amounting to an abuse of process of the Court, whether the Proecipe reveals a valid cause of action, whether the action against the Defendant can succeed in the face of judicial immunity, whether the averments in the Proecipe are immaterial, unnecessary and merely to embarrass the Defendant, whether there is a collateral attack of a decision of the Supreme Court and the constitution of the Court. They do not relate to matters of facts which need to be proved, and they constitute matters which could, if they succeed, dispose of the present case. We find the dicta in the case of D. HURNAM v A. CAUNHYE & ANOR (2015) INT 26, which is of persuasive authority to be helpful. The Court said that: “It can be culled from that case that preliminary objections, which can be taken as preliminary points, are not restricted to only issues concerning the jurisdiction and limitation of action, but also other matters, which may lead to an outright disposal of the case at the outset”. We have borne in mind the dicta in the cases of MUNGROO C & ORS VS THE STATE OF MAURITIUS & ORS (2008) SCJ 298 and RAMA VS VACOAS TRANSPORT CO. LTD (1 958) MR 184, to the effect that “…objections cannot properly to heard in limine unless the objector accepts—for the purposes of argument only—all the facts alleged by the plaintiff but argues that, even accepting them, his opponent cannot succeed…”. In the present case, the preliminary objections raised are ex-facie the Proecipe which are assumed to be accepted. (RE: GEM MANAGEMENT LTD VS FIREFOX LTD AND ORS (2022) UKPC 17). In the circumstances, we find that the preliminary objections raised are matters of law which do not warrant the proof of a fact averred. Should the Court uphold the preliminary objections raised, the present matter can be disposed. Furthermore, the Plaintiff has failed to show how the filing of the plea on the merits by the Defendant and Co-Defendant will help the Court to determine the preliminary objections raised by the Defendant and Co-Defendant No.1 and which should be ex-facie the Proecipe. We find that Defendant and Co-Defendant No.1 were fully entitled to raise the preliminary objections which can be heard and determined before an exchange of pleadings so that the case could be determined without any reliance on evidence. We find it apposite to refer to the case of JEKARAHJEE B v THE STATE OF MAURITIUS (2009) SCJ 227 , laying down that:

“It is evident that a defendant cannot be deprived of the right to raise a defence in law at any stage before judgment, and this, irrespective of whether the defence will succeed or not”.

CONCLUSION In light of the above, we therefore find that the Defendant and Co-Defendant No.1 were entitled to raise preliminary objections ex-facie the Plaint, before pleadings are filed. We set the case to be fixed for Arguments to be heard on the preliminary objections raised by the Defendant and Co-Defendant No 1.

M.Gayan-Jaulimsing U.Rawat-Neerooa President Magistrate Intermediate Court (Civil Division) Intermediate Court (Civil Division)

13 th May 2026