Kumar v Ram [1979] FJSC 27; Civil Action No. 115 OF 1979 (6 July 1979)

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

Civil Jurisdiction
Action No. 115 of 1979

Between:

NAREND KUMAR
s/o Babu Ram
Plaintiff

AND

BABU RAM
s/o Balihari
Defendant

Mr.S.Koya, Counsel for the Plaintiff

RULING

In this application the plaintiff seeks a temporary extension of caveat No. 164441 over Native Lease No. 9543 pending determination of the action he bring against the defendant, his father.

The caveat was lodged by the plaintiff to protect his alleged interest in land of which the defendant and another hold an undivided interest in a Native Lease. The history of the caveat is purportedly set out in paragraph 9 of the defendant’s affidavit opposing this application. Although the plaintiff has said that the allegation in the said paragraph 9 are unknown to him, it is clear that he is not being entirely frank. He must know, or certainly ought to know what the position is, and the court should be told exactly what the position is. It is not sufficient for the plaintiff to say that the allegations are unknown to him, he must deny that paragraph 9 of the defendant’s affidavit gives the correct history of the caveat and if possible give the true history.

In the circumstances I must accept what the defendant has said, i.e. that he lodged an objection to the caveat and there was no order by any court to extend the caveat within 21 days. The result should then be as is stated in section 110(1) of the Land Transfer Act 1971, namely “the Registrar shall remove the caveat from the register” with effect from 10/5/79.

Once the caveat has been removed there seems to be no power to reinstate it and extend it. The plaintiff purports to make his application under section 110(3) of the Act, but this provision only appears to apply before the Registrar has removed the caveat from the register. Thereafter it would appear that the only recourse would be to ask the court under section 112 of the Act to order the Registrar to receive a second caveat.

When this matter came before the court on 18/5/79 in the absence of any affidavit from the defendant, the judge who then dealt with the matter made a temporary order to extend the caveat, but giving the defendant leave to file an affidavit in reply. Since the caveat had been, or should have been already removed from the register it is at least doubtful whether the order extending the caveat could have any effect, but in any case there is no doubt that had the court then been aware of the situations revealed in para.9 of the defendant’s affidavit it would not have made the order it did make.

The plaintiff, after hearing argument for the defendant, asked me treat this application under section 112 of the Act for an order that the registrar receive a second caveat, but this I decline do to at this stage. The plaintiff has only himself to blame for not setting the true position of the caveat in the first place and being less/than frank in his affidavit in reply to the defendant’s affidavit.

I therefore do not grant the plaintiff’s application for an extension of the caveat, and the previous order of this court extending it shall lapse.

(Sgd.) G.O.L. Dyke
JUDGE.

LAUTOKA,
6th July, 1979.

Messrs Koya & Co., for the Plaintiff.