Bihari Lal & Sons Ltd v Patel Pharmacy Ltd [2011] FJHC 178; HBC181.2010 (21 March 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 181 of 2010L

BETWEEN

BIHARI LAL & SONS LIMITED
Plaintiff

AND

PATEL PHARMACY LIMITED
Defendant

INTERLOCUTORY JUDGMENT

Judgment of: Inoke J.

Counsel Appearing: Mr. Hari Ram for the Plaintiff.
Mr. S. Sharma for the Defendant.

Solicitors: Rams Law for the Plaintiff.
Samusamuvodre Sharma Law for the Defendant.

Date of Hearing: 17 March 2011
Date of Judgment: 21 March 2011

INTRODUCTION

[1] This is an application by the Plaintiff for leave to issue a Writ of Possession against the Defendant. The application was filed ex-parte but proceeded by way of an inter-partes hearing.

CASE HISTORY

[2] On 20 September 2010, the Plaintiff filed a Summons for Ejectment pursuant to s 169 of the Land Transfer Act requiring the Defendant to show cause why it should not give up immediate vacant possession of Shop 1 of the Plaintiff's building in Sigatoka. On 12 November 2010, Master Tuilevuka heard the parties and gave his judgment on 19 November 2010 giving the Defendant 21 days to vacate the shop. That order was not taken out until 15 February 2011. That should have been the end of the matter. However, on 25 November 2010, the Defendant filed a Notice of Appeal with a Motion for stay of the Master's order of 19 November 2010. The Motion was filed ex-parte which should have been inter-partes as required by O 59 r 16(2) of the High Court Rules 1988 (HCR). The matter came before Wickramasinghe J on 1 December 2010. It appears from the Court file notes that only counsel for the Defendant appeared and asked for a stay of the Master's orders. Her Ladyship granted a stay until 8 December 2010 and gave directions for the filing of Court documents. On 8 December 2010 both counsels appeared before Wickramasinghe J who transferred the matter to me for mention later that morning. Both counsels appeared on that morning and handed up a handwritten draft of the orders to be made:

By consent of both parties that the following orders be made:

1. That the Execution of Masters Orders of the 19th day of November 2010 be stayed till the 24th day of January 2011.
   
2. That the Appellant to pay a sum of $5,000.00 by 13th December 2010 as mesne profit for the month of December 2010 into Trust Account of Messrs Rams Law for payment to Respondent.
   
3. That the Appellant to pay $5,000.00 as mesne profit for January 2011 by 10th January 2011 unless the Appellant gives vacant possession by the 31st day of December 2010. This payment shall also be made to Trust Account of Messrs Rams Law.
   

[3] The next application that followed was a Motion filed by the Defendant on 1 February 2011 for the appeal to be listed. It is said to be made pursuant to O 59 of the High Court Rules 1988. The Motion was issued returnable on 16 February 2011. But for some reason the Motion did not appear to be called on that day. Then followed the Plaintiff's application for leave to issue a Writ of Possession against the Defendant which was filed on 28 February 2011 ex-parte. The application came before the Master on 2 February 2011 who transferred it to me, quite properly, because it was for execution of the consent orders that I made on 8 December 2011. The application was called on 7 March 2011 as an inter-partes application. I gave directions for the filing of affidavits and set the application down for hearing on 17 March 2011. This is my judgment after that hearing.

HEARING OF APPLICATION FOR LEAVE TO ISSUE WRIT OF POSSESSION

[4] Several affidavits were filed by both parties but I think I need not consider them other than to note that the Defendant had made payments of $5,000 per month up to the end of March 2011.

[5] The main point raised by the Plaintiff was that since the stay granted by consent of the parties on 8 December 2011 ended on 24 January 2011, there is no longer any restriction on the Plaintiff proceeding with execution despite the pending appeal and application for stay. That is clear, Mr Ram submits, from O 59 r 16(1) HCR.

[6] The handwritten draft of the Consent Order of 8 December 2010 leaves a lot to be desired. There were several errors in the dates for paragraphs 2 and 3 but I think the clear intention of the parties is as set out above. The Appellant was the Defendant and the Respondent was the Plaintiff.

[7] Mr Sharma submitted that the matter was to be mentioned in Court on 24 January 2011 even though it was not put in the Order. I do not accept his submission. He was counsel appearing on the date the Consent Order was made. I am satisfied that the extra time given was for the Defendant to vacate by no later than 24 January 2011. It was not intended to enable the Defendant to file its appeal and apply for a stay of the Master's Order for vacant possession. I think the Defendant has taken advantage of the Plaintiff's generosity and the filing of its application for stay is an abuse of process and I dismiss it accordingly.

[8] I therefore grant the Plaintiff's application for leave to issue a Writ of Possession but stay it until the end of March 2011 because the Defendant has paid $5,000 up to then, and if not paid, such payment is to be made within 7 days.

COSTS

[9] The Plaintiff is entitled to its costs which I summarily assess at $800 to be paid within 21 days.

ORDERS

[10] The Orders are therefore as follows:

1. Leave is granted to the Plaintiff to issue a Writ of Possession against the Defendant but stayed until 31 March 2011.
   
2. The Defendant shall pay $5,000 into the Plaintiff's solicitor's trust account within 7 days if not already paid.
   
3. The Defendant's application for stay pending appeal is dismissed and struck out for being an abuse of process.
   
4. The Defendant shall pay the Plaintiff's costs of $800 within 21 days.
   

............................................................
Sosefo Inoke
Judge