Raju v Housing Authority [2007] FJHC 85; HBC 411.2007 (30 November 2007)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No : HBC 411 of 2007

BETWEEN

DEO RAJ RAJU
Plaintiff

AND:

1. HOUSING AUTHORITY
2. KANTA MANI a.k.a.
KANTA ARGOGRAM RAJU
3. FIJI NATIONAL PROVIDENT FUND
Defendants

No appearance for Plaintiff
Ms A. Maharaj for the First Defendant
No appearance for Second & Third Defendants

RULING ON STRIKING OUT

The Housing Authority holds a mortgage over plaintiff’s land. The plaintiff has only one half undivided shares in ‘lease number 396904’. He says he is trying to organize a transfer of his wife’s share to himself and arrange for refinance. He has not told the court what is the amount of debt. He wants the court to grant him an injunction restraining the first defendant from proceeding with mortgagee’s sale or to ask for vacant possession. He had previously filed HBC 604 of 2005 seeking similar orders. The history of that case is set out in the affidavit of Ajay Singh sworn on 19/9/07. That matter was struck out.

The plaintiff there sought an extension of time to appeal but he failed to appear on the hearing date the application was struck out.

This is clear abuse of process in filing cases and not prosecuting them on merits and allowing them to be struck out and than filing a fresh action.

Further this is an attempt to injunct a mortgagee from exercising its power of sale which courts rarely do and only upon very strong grounds or if the mortgagor pays the money into court.

This is proper case for striking out the claim against the first defendant. I also order the plaintiff to pay costs summarily fixed in the sum of $1,200.00.

The plaintiff is not seeking any orders against the second and third defendants. Accordingly the entire action is struck out. The plaintiff is to pay the first defendants costs summarily assessed in the sum of $1,000.00 to be paid in fourteen (14) days.

[Jiten Singh]
JUDGE

At Suva
30th November 2007