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Singh v Kumar [2004] FJHC 170; HBC0524.2004 (26 November 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC0524 OF 2004

BETWEEN:

ABHAY KUMAR SINGH
Plaintiff

AND:

KISHORE KUMAR
Defendant

Hearing & Judgment: 26th November, 2004

Counsel: Plaintiff – in person
Defendant – no appearance

EX TEMPORE JUDGMENT

I am making this minute and judgment to record my decision in this matter. The judgment is made on a temporary ex-parte and extempore basis. I accordingly reserve the right to correct or amend the judgment.

The applicant is a Barrister and Solicitor practicing from Suite 3, 2nd Floor Savilla House, Valelevu. The respondent is his landlord one Dr. Kishore Kumar.

The landlord for reasons that at present remain obscure as he has not made an appearance this morning has moved to lock the tenant out of the premises.

The applicant filed an ex-parte notice of motion seeking to restrain the landlord’s action and effectively grant him a right of access to his premises until such time as the substantive dispute with the landlord can be resolved. I directed the application come inter-parties but on a “pickwick” basis. The application was served yesterday. There is no appearance by the defendant.

I am advised by affidavit and the plaintiff that he has a lease of the said premises to use as legal offices for 8 years from March 2004 at $400.00 a month less the cost of any legal work he does for the landlord.

I am advised that as at today’s date the landlord in fact owes the tenant some $6,243.75 (see AS 1 plaintiff’s affidavit).

The legal offices contain the usual things associated with the practice of law such as client files, computers with internet access, telephones, faxes and library. The applicant contends that without access to these materials he simply cannot work. The landlord’s lock out actions are preventing his access to office.

The Law

I have borne in mind the legal requirements relating to the Cyanamid principles and also those principles relating to the granting of an ex-parte interim order.

I find that there is a serious issue to be tried as the tenant is being denied excess to his leased premises and effectively locked out of his legal practice.

I find at this time the balance of convenience favours the tenant.

I find that the overall justice of the situation requires me to make some temporary interim orders to grant the tenant access to the premises and temporarily restrain further lock out action by the landlord. Accordingly on an ex-parte temporary and interim basis I make the following orders of injunction. Until the next call of this matter on Tuesday the 30th of November, 2004 at 9.00am:

1. The defendant by his servants and/or his agents is immediately restrained from interfering, stopping, obstructing or in any way restricting the tenants access to the subject premises being his office at Suite 3, 2nd Floor, Savilla House, Valelevu.
   
2. The defendant by his servants and/or agents is immediately ordered to remove any padlock placed on the front entrance step or door or entrance to the plaintiff’s office and is ordered to provide clear access for the plaintiff to his legal premises.
   
3. The defendant by his servants and/or agents is ordered to immediately provide clear access for the plaintiff and his clients to any toilet and ablution facilities associated with the subject premises.
   
4. The defendant by his servants and/or his agents is restrained from interfering with/or obstructing the access of the plaintiff’s clients, agents or servants to the subject premises at Suite 3, 2nd Floor Savilla House, Valelevu.
   
5. The defendant by his servants and/or agents is further restrained from interfering with the plaintiff and/or his staff from using their designated parking space granted as part of the lease.
   

Each of these orders is temporary. I reserve leave to the defendant to move on 24 hours notice to have the order reviewed.

I direct this matter come back before me at 9.00am on the 30th of November, 2004.

I direct that the costs of this application be reserved and considered in the cause of the substantive matter.

I direct that this minute is to be typed up immediately and presented to me for signature and orders may issue immediately once the judgment has been transcribed.

Gerard Winter
JUDGE

At Suva
26th November, 2004