Chandra v Devi [2000] FJHC 65; Hbc0597J.99s (9 May 2000)

Fiji Islands - Chandra v Devi - Pacific Law Materials

IN THE HIGH COURT OF FIpan>

AT SUVA

CIVIL JURISDICTION

p class=MsoNormal alal align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> CIVIL ACTION NO: HBC 597 OF 1999

BETWEEN:

RAMESH CHANDRA

Plaintiff

AND:

ANJILA DEVI

1st Defendant

AND:

THE REGISTRAR OF TITLES

2nd Defendant

Counsel: Mr R. Singh for Plaintiff

Mr R. Prakash st Defendant

Mr A. Rokotinaviti for 2nd Defendant

Hearing: 8th May 2000

Judgment: 9th May 2000

JUDGMENT

On 20^th December 1999, the Plaintiff filed a writ of summons against the 1^st Defendant as Adminstratrix in the estate of Vijay Kumar, claiming an equitable interest in Housing Authority Sub-lease 42369, and seeking orders transferring the lease to the Plaintiff. On the same day, the Plaintiff made an application for extension of a caveat over the sub-lease, preventing any dealings with the property until final determination of the action.

That motion was granted on an interim basis on 15^th February 2000 with an order that the matter should be called on 4 April 2000.

On that day the Defendant sought time to make an applicato dissolve the injunction. The Defendant also, on 5^th May 2000 filed an applicaplication to strike out the statement of claim on the ground that it discloses no reasonable cause of action, it is scandalous, frivolous and vexatious, and that it is an abuse of the process of the Court.

That application will be heard on 9^th June 2000.

On a perusal of the papers on the court file, it appears there is, in fact no injunction left to dissolve. Although an interim injunction was in forceforce until 4^th April 2000, no application was made to extend the caveat on that day. Indeed, counsel told the court that an application would be made to dissolve the injunction. Everyone (including the court) appears to have been under a misapprehension that the order of 2^nd March, continued to have effect.

This application is therefore misconceiveofar as it is an application to dissolve an injunction. Counsel for the Plaintiff neverthelrtheless asks for an extension of the order to retain the Plaintiff’s caveat, although no fresh motion was filed by the Plaintiff, to this effect.

I note that the affidavit of Ramesh Chandra, sworn on 14^th December 1999, claims that tceased Vijay Kumar, who was a relative of his wife, had agrd agreed to pay the deposit on the sub-lease, and to apply for a loan from the Housing Authority under his own name, in August 1991. The Plaintiff says that he paid Vijay Kumar instalments on the loan, from time to time. Vijay Kumar died in 1997. His daughter Anjila Devi, the Defendant became the adminstratrix of his estate. The Plaintiff lodged a caveat in 1997 in respect of the property in which he now claims an equitable interest.

What was not disclosed in the affidavit of Ramesh Chandra was a full, up-to-date copy of the leThe copy annexed to his affidavit shows only the Housing Aung Authority mortgage and the caveat, lodged by the Plaintiff on 12^th August 1997.

The copy of the lease tendered by the Defendant (annexethe affidavit of Saadvi Sen, sworn on 5^th May 2000 in support of the applicationation to strike out the pleadings) contains all pages of the sub-lease, and shows registration of an application for removal of caveat (dated 3^rd November 1999), cancellation of the Plaintiff’s caveat, dated 29^th November 1999, transmission by death to the Defendant as Adminstratrix of Vijay Kumar’s estate dated 15^th December 1999, and finally a transfer to Anjila Devi in her personal capacity dated the same day.

ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Counsel for the Plaintiff submitted that these mattere registered after the affidavit of Ramesh Chandra was sworn on 14^th December mber 1999.

However, the application was heard on 15^th December 1999. The Plaintiff did not disclose the ch to the title on that day. day. The Order was sealed on 2^nd March 2000. The injunction was valid until 4^th April 2000 and the matter called for mention. Still there was no disclosure from the Plaintiff. The order which was directed to the Defendant in her capacity as adminstratrix of an estate, clearly would be ineffective in respect of Anjila Devi in her personal capacity.

In any event, material non-disclosure, whether it is negligent orberate, is sufficient ground not to continue with an injunction granted on the basis of thef the Plaintiff’s papers alone. On this ground alone, any extension to the injunction granted on 15^th February 2000, is refused.

The Plaintiff must pay the Defendant costs of this application, which I set at $100.

Nazhat Shameem

b>JUDGE

9^th May 2000

At Suva

HBC0597J.99S