Singh v Kuar [2009] FJHC 261; HBC281.1996L (30 October 2009)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 281 of 1996L

BETWEEN:

SHITAL SINGH
Plaintiff

AND:

MAHENDRA KUAR
Defendant

FINAL JUDGMENT

Of: Inoke J.

Counsel Appearing: Dr M Sahu Khan for the Plaintiff
Mr V Mishra for the Defendant

Solicitors: Sahu Khan & Sahu Khan for the Plaintiff
Mishra Prakash & Associates for the Defendant

Date of Hearing: 30 October 2009
Date of Judgment: 30 October 2009

INTRODUCTION

[1] This ex-parte application for leave to issue a Writ of Possession was heard inter-parte on the instigation of Mr Mishra, Counsel for the Plaintiff. After hearing Counsel I granted leave to issue the Writ stayed for 4 months. I now publish my reasons.

REASONS

[2] The Plaintiff filed his Motion on 10 September 2009 supported by his affidavit which stated that this Court made an order for vacant possession of CT No 55/5434 on 25 July 2005. However, execution was suspended pending final determination of the Defendant’s compensation claim in the Agricultural Tribunal if the Defendant made her application within 30 days from 24 August 2005.

[3] The Defendant did file her application in the Tribunal which was eventually set down for hearing on 4 August 2009. On the day of the hearing Counsel then appearing for the Defendant sought an adjournment which the Tribunal refused and struck out the compensation claim. The Defendant has filed an application in the Agricultural Tribunal for re-instatement of her compensation claim.

[4] The 50 year old Defendant filed an affidavit in reply in this application in which she admits that an order for vacant possession has been made. She further says that she has liver problems and had to go urgently overseas for medical treatment which was the reason for seeking an adjournment of the Tribunal hearing. Her medical advice was that such treatment is not available in Fiji.

[5] The 84 year old Plaintiff however complains that the Defendant is not paying him anything at all for the land and is simply unjustly depriving him of the use of his property. The Plaintiff is the trustee of his father’s estate and is eager to finalise the administration of the estate.

[6] At the hearing I pointed out to Dr Sahu Khan, Counsel for the Defendant, that his client’s claim in the Tribunal is not barred or in any way affected by her having to move out of the land. She has had ample time since August 2005, over 4 years now, to pursue and finalise her compensation claim.

[7] Dr Sahu Khan however, argued that this court could not hear this application until the Tribunal had made its decision. He relied on the English Court of Appeal decision in Shocked v Goldschmidt [1998] 1 All E R 372. That is a decision on the principles of setting aside judgments in default of pleadings and judgments in default of appearance. I do not think it assists the Defendant’s case.

[8] He also argued that O 3 r 5 of the High Court Rules 1988 did not permit the Plaintiff to bring this action because he has not given the one month notice required under that rule. Mr Mishra’s response was that the rule only applied to interlocutory proceedings. Here, final judgment has been delivered and the Plaintiff is only seeking enforcement so the rule had no application. He cited Paviter’s Departmental Store v Lodhias Limited [1978] 24 FLR 70 as authority for his proposition. In that case, judgment in default of defence was entered more than 12 months after the last proceeding, the time limited under the rule at the time. The Court[1] held that the entry of judgment was a proceeding in the action and must be the subject of one month’s notice to the Defendant. Williams J referred to Deighton v Cookle [1911] UKLawRpKQB 182; [1912] 1 KB 206, 209 and Webster v Myer [1884] UKLawRpKQB 221; 14 (1884-1885) QBD 231 wherein it was said that the rule only applied to proceedings towards judgment and did not apply to proceedings after judgment.

[9] Mr Mishra also cited the Privy Council[2] decision in Ram Shankar v Parekh Holdings Ltd on appeal from the Court of Appeal delivered on 24 May 1976. That case involved summary eviction under the provisions of the Land Transfer Act, in particular s 172. The defendant argued that he had a right to occupy the land as a tenant under the Agricultural Landlord and Tenant Ordinance. Tuivaga J, as he then was, ordered vacant possession. The order was upheld on appeal. The Court of Appeal found that a prima facie case for the existence of such a tenancy at any time had not been shown by any evidence worthy of credence and ordered vacant possession. Lord Diplock, in delivering the judgment, said:

Under (s 172), it is mandatory upon the judge to dismiss the summons if it is proved to his satisfaction that the person summoned has a right to the possession of the land, but it lies within his discretion whether or not to make an order for possession in any other circumstances. The proviso makes it clear that the dismissal of the summons does not deprive the plaintiff of his remedy by ordinary action; and the established practice of the Court under the corresponding provisions in previous laws has been for the judge to decline to make an order for possession under the summary procedure where the evidence which is given upon affidavit discloses a serious dispute on relevant facts or where difficult questions of law are involved.

...

In referring to the reason for the Court of Appeal upholding the order for vacant possession, Lord Diplock quoted:

"It is enough for present purposes to say that (the defendant) clearly has to show himself to have any claim as a common law tenant; nor has he, by the manner in which he has chosen to put forward a case which at best can only be described as shadowy and suspect, shown sufficient cause to be permitted to remain in possession while he pursues his application to the Agricultural Tenancy Tribunal."

The Court of Appeal clearly thought that the opposition to the claim for possession and the appeal by Ram Shankar was a "try-on"; their Lordships see no reason to differ from that view."

[10] I think the present case is not far off from Shankar’s case.

[11] It was for these reasons, especially the fact that the Defendant is not prevented from pursuing her compensation claim if she lived somewhere else, that I granted the order for vacant possession. However, her Counsel asked that vacant possession be stayed for 4 months to allow her to find alternative accommodation. So I ordered accordingly with no order as to costs.

Sosefo Inoke
Judge

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^[1] The then Supreme Court, now the High Court.
^[2] Lord Diplock, Lord Salmon and Lord Fraser of Tullybelton.