Pillay v Kumar [2013] FJHC 495; Civil Action 13.13 (20 September 2013)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

Civil Action No: 13/13

IN THE MATTER of an application
by the Plaintiff under section 169 of
the Land Transfer Act.

BETWEEN:

AVIKASH PILLAY of Savusavu
PLAINTIFF

AND:

VISHAL KUMAR of Savusavu.

Appearances: Mr. Sen of Maqbool & Co for the Plaintiff
: Mr. Ratule of Gibson & Co for the Defendant.

RULING

Background

By summons dated 1st May 2013 the Plaintiff as proprietor of a portion of land more particularly described in Certificate of Title No. 16093 as Naveria being part of Lot 8 on Plan No. 3189 containing an area of 1 rood situated in the district of Savusavu in Vanua Levu, made an application to this Court for the Defendant to show cause why he should not give up possession of the said land.

The application was supported by an affidavit which shows that the Plaintiff is the registered proprietor of the said land and that such registration was affected on the 1st March 2012 and the only other encumbrances noted on the title was a mortgage to the Westpac Bank which was also registered on the same date. It appears from the information contained in the affidavits that the defendant had resided on and rented the property prior to the Plaintiff acquiring it and he continued to rent the premises from the Plaintiff. The Plaintiff however wishes to renovate the premises and wishes the Defendant to vacate. The Defendant has also accrued some rental arrears which needed to be paid. As a result the Plaintiff through his solicitors sent a "Notice to Vacate" to the Defendant dated the 27 February 2013 requiring the Defendant to vacate the premises thirty days from the date of the notice. There was no tenancy agreement entered into between the parties and it appears that the Defendant was residing on the premises on a monthly basis.

The Defendant filed an affidavit in opposition in which he states that he was not served with a notice to vacate dated the 27 February and that he was unable to find alternative accommodation since receipt of the writ. He admits that he was paying rent to the Plaintiff and that he was levied distress on the unpaid rental.

The Hearing

At the hearing on the 2 September the Defendant acknowledged the matters raised by the Plaintiff but insisted that the notice to vacate was not properly served nor does it show when it was served. It was therefore invalid. He referred mostly to the decision in Rao –v – Sanday (1977) FJSC 20 as supporting this position. The case also shows that the acceptance of rent acted as a waiver of the notice if the notice was taken to be valid. In this instance the Plaintiff had accepted the rental paid after the notice was given. The only difference between the case referred to and the present case is that in the present case the rental paid was for outstanding rent not for future rent as is the case in Rao -v-Sanday. The Defendant further depended on the decision in Kumar –v- Prasad (2004) FJHC 219 as further basis upon which the acceptance of rental payment by the Plaintiff acted as a waiver of the notice to vacate. The arguments put forth by the Defendant was valid argument given the uncertainty in the mode of service of the notice and the acceptance of rent by the Plaintiff except for one little matter and that is in the latter case the parties had a valid tenancy agreement even at the time at which the notice was given. The rent received was for future rental not outstanding rental. Indeed it could not be expected that the payment of outstanding rental and its acceptance by the Plaintiff as indicating that he will accept future tenancy from the date of the termination.

At the end of his submission the Counsel for the Defendant eventually admitted that his client needs time to vacate the premises and is having difficulty in finding suitable accommodation.

In reply the Counsel for the Plaintiff submitted that the matters raised by the Defendant about the notice to vacate was on the presumption that there was a tenancy agreement between the parties and that the receipt of rental did not act as a waiver as it was for outstanding rent.

Conclusion

I agree with the submission of the Plaintiff that the acceptance of rent was not a waiver as it was for outstanding rent. Given the concession given by the Defendant I find that he does not have any cause to remain on the premises and that all he needs is time to vacate the premises.

I therefore make the following orders:-

1. That the Plaintiffs application for vacant possession is granted;

2. That the Defendant is given six weeks to vacate the premises; and

3. Each party to bear their own costs.

20 September 2013.

H A ROBINSON
MASTER, HIGH COURT, LABASA