Singh v. Patel [1977] FJSC 144; Civ. Action No. 93 of 1977 (30 June 1977)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA

Civil. Jurisdiction
Civil Action No. 93 of 1977

BETWEEN

PROBHAT SINGH f/n Bhim Singh
GAMHIR SINGH f/n Bhim Singh
JASWANT SINGH f/n Gambhir Singh
RAJENDRA SINGH f/n Gambhir Singh
KARAN SINGH f/n Gambhir Singh
SURENDRA SINGH f/n Gambhir Singh
(Plaintiffs)

AND

KANTILAL PATEL f/n Shankar Bhai
RAMNIK LALf/n Mulji Bhai
(Defendants)

Mr. G.P. Shankar for the Plaintiffs
Mr. S. Anand for the Defendants

JUDGMENT

This is a summons for possession issued under S. 169 of The Land Transfer Act 1971 and the plaintiffs seek possession of certain premises in Sigatoka Town occupied by the defendant as tenants. It is conceded by the defendants that the Fair Rents Act Cap 241 does not apply to Sigatoka town. The plaintiffs have proved that they are the registered proprietors of a block of land comprising 12 perches more or less situated in Sigatoka Town being lot 53 D. P. 2456 on which a building is erected containing shops and living accommodation, part of which is let to the defendants. The plaintiffs have proved that they gave to the defendants a notice terminating the tenancy which was a. monthly tenancy and the defendants do not dispute having received that notice and that it is a valid notice. The defendants have filed an affidavit sworn by one of them, Kantilal Patel, in which the deponent says that he tendered cheques to the plaintiffs for rent for January February March and April 1977, but although a letter from the plaintiffs which he exhibits accounts for rent to September 1976, the deponent does not state, which is the material matter, that he had already paid rent for October and November 1976. Mr. Anand concedes, very properly, if I may say so, that in fact rent for October and November 1976 has not been said, so that the argument on this issue is whether plaintiff is entitled to apply the rent which he received in January and February towards arrears of rent due in October and November which admittedly had not been paid. I think that it is pertinent to observe that although defendant Katinal in his affidavit says that the cheques he sent in January and February were meant to be for rent for January and February 1977, he does not say that he made any stipulation to that effect, and his counsel admitted that cheques for March and April were in fact returned. Indeed the affidavit may be criticised as misleading in that by not setting forth the whole truth it conceals the truth. In my view the plaintiff was entitled to apply the cheques for rent which the defendant forwarded to arrears of rent and Nasiban v Totaram (1962) 9 F.L.R. 1 would appear to support that view by holding that in default of any agreement to the contrary a creditor is obliged to appropriate payments received to the debtor’s earliest liability.

Then the defendant says that an intention to create a new tenancy is to be inferred first from the delay in bringing the proceedings and secondly from the contents of the plaintiffs’ letter of 6th May 1976 exhibited to the defendant Kantilal’s affidavit, and he argues that because the plaintiffs had not returned defendant’s cheques they held defendants out to be tenants. I am against Mr. Anand on both these points. I do not think that there is anything on the point of delay, particularly since the cheques forwarded by the defendant had not been presented, as the defendant ought to have known, since he is a business man, and secondly Clarke v Grant (1949) 1 A.E.R. 768 to which Mr. Shankar refers me shows that when a tenancy is brought to an end after a notice to quit, and the notice to quit here is not disputed, a payment of rent after the termination of the tenancy would only operate in favour of the tenant if it could be shown that the parties intended that there should be a new tenancy. There is nothing here to show that the plaintiffs intended that there should be a new tenancy, and accordingly that point also fails.

Then Mr. Anand submits that the Counter Inflation Act 1973 serves to protect his tenancy. He equates the Counter Inflation Act with the Fair Rents Act Cap. 241, and although he acknowledges that there is nothing in the Counter Inflation Act to protect a tenancy, he invites the Court to read into it a restraint on a landlord from obtaining possession. I am not prepared to do so. The purposes of the two acts entirely different. The Fair Rents Act is to protect tenants from being put out. The purpose of the Counter Inflation Act so far as it affects tenancies is to prevent landlords from charging exorbitant rents. He also refers to the decision of Kermode J. in Ambika Prasad Sharma v. Prices & Incomes Board and I find at p. 6 of the judgment that the learned judge considered that the object of the Counter-Inflation Act is control rents so as to counter inflation. Nothing is said however about the protection of tenants.

In my view the defendant has shown no entitlement to possession, and an order will be made for immediate possession.

(Sdg.) K.A. Stuart
JUDGE

LAUTOKA
30th June, 1977.

Messers Munro, Leys & Co., Solicitors, Suva:
Solicitors for the Plaintiffs.

Messrs Anand, Tappoo & Co., Solicitors, Nandi:
Solicitors for the Defendants.