Raj v Kumar [2011] FJHC 264; HBC 167.2010 (12 May 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 167 of 2010

BETWEEN:

HANS RAJ (f/n Brij Prasad) of Lot 1, Ratu Dovi Road, Nasinu, now of Koronivia, Nausori, Farmer
PLAINTIFF

AND:

AJAY KUMAR (f/n Jai Ram) of Vuci Road, Nausori, Contractor
DEFENDANT

BEFORE: Master Deepthi Amaratunga

COUNSELS: Sunil Kumar Esq for the Plaintiff
O'Driscoll & Co for the Defendant

Date of Hearing: 31st March 2011
Date of Ruling: 12th May 2011

RULING

1. INTRODUCTION
   

1. This is an application for vacant possession in terms of Order 113 of the High Court Rules of 1988. The Plaintiff is not in occupation of the land. His authority for possession was in pursuant to a registered lease which expired on 30th June 2010. Plaintiff doesn't have any authority for possession after the expiration of the lease. A fresh lease was granted to the occupying Defendant from 1st July, 2010 for 30 years.
   

2. THE LAW AND ANALYSIS
   

2. Order 113 of the High Court Rules of 1988 states as follows:
   

"where a person claims possession of land which he or she alleges is occupied solely by a person or persons (not being a tenant or tenants holding over after the termination of the tenancy) who entered into or remained in occupation without his or her licence or consent or that of any predecessor in title of his or her, the proceedings may be brought by originating summons in accordance with the previsions of this order"

3. The Plaintiff was not in occupation of the land in question and he obtained a lease that expired on 30th June 2010. After the expiration of the said lease the Plaintiff does not have any legal right to the possession of the land in dispute.
   
4. Before the expiration of the lease the Plaintiff has consented and also entered in to an agreement to grant possession to the Defendant which is null and void as it had not obtained prior consent of the lessor, but the Defendant had entered to the premises as licensees of the Plaintiff and had remained there and after the expiration of the Plaintiff's lease had obtained a fresh lease on behalf of the Defendant. The said lease was filed marked AK -1 to the supplementary affidavit filed by the Defendant on 4th May, 2011.
   
5. It is clear that the Plaintiff does not have any legal or equitable right over the said land after the expiration of his lease . His lease had expired and he was not in occupation of that land and not even claimed any improvements on the land. It is evident that Plaintiff does not have any legal or equitable right over the said property. The Defendant has obtained the lease for 30 years from 1st July, 2011.
   
6. The only allegation of the Plaintiff is that this lease was granted to the Defendant by fraud. This cannot be substantiated as the lease was granted to the person who was in possession of the land. It is noteworthy that even the Defendants had entered the land with the consent of the Plaintiff and had remained there till the expiration of the lease granted to the Plaintiff. Once the lease granted to the Plaintiff expired, the Plaintiff does not have any legal right to possess the said land. So it is evident that the Plaintiff cannot claim possession to the said land since the fresh lease has been granted to the Defendant.
   
7. The Defendant's possession from 1st July, 2010 is upon his legal right that arose from the lease that was granted to him. So the possession of the Defendant is a legal right to the lessee in pursuant to the lease agreement granted to him for 30 years. The Plaintiff who was granted the lease that expired on 30th June, 2010 cannot claim ejectment of the present lessee who had been granted a lease by the lessor .
   
8. It is clear even before the expiration of the lease to the Plaintiff, he was not in occupation and has also entered into an illegal contract with the Defendant regarding possession of the land to the Defendant. Though the said contract cannot be executed in a court of law that shows the conduct of the Plaintiff prior to the expiration of the lease granted to him. In any event the Defendat had entered and remained in the property till he was granted a lease by the lessor on the invitation of the Plaintiff. So, the Defendant was never a trespasser on the said land. It was contended on behalf of the Defendant that Order 113 of the High Court Rules could not be invoked where a person sought to be ejected is not a trespasser. It was also contended, whether the Plaintiff could bring this action as he was not the owner of the property. For these two arguments the Respondent cited the case of Dutton and others V Manchester Airport plc [1999] EWCA Civ 596; 1999 2 All ER 675.
   
9. In Dutton and others V Manchester Airport plc [1999] EWCA Civ 596; 1999 2 All ER 675 it was held that in order to bring action in terms of Order 113, there is no need to have an absolute ownership of the land and a licesee could equally be entitled to bring an action in terms of Order 113 of the High Court Rules. The reliance on the dissenting judgment of the Chadwick LJ, though persuasive is not warranted in the present instance as it is not needed since the Plaintiff's lease had expired and he does not have any right over the said land.
   
10. The issue of whether a person who had entered with the consent of the Plaintiff can be ejected in terms of Order 113 will also not arise in this instance as the Defendant had obtained a valid lease for 30 years from 1st July, 2010.
    
11. The Plaintiff, who instituted this action in terms of Order 113 of the High Court Rules of 1988, is now claiming fraud, and that cannot be the subject matter of this proceeding. Since the decision to grant the lease was done through an administrative action it cannot be challenged in this proceeding.
    

100. CONCLUSION
     

12. The action is struck out and the Defendant is granted $750 as cost assessed summarily.
    

Dated at Suva this 12th day of May, 2011

Mr Deepthi Amaratunga
Acting Master of the High Court

Suva