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Deo v Wati [2005] FJHC 734; HBC413J.2004S (5 May 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION


CIVIL ACTION NO. HBC 413J OF 2004S


BETWEEN


INDAR DEO (F/N Ram Narayan) of Lot 86, Stage 4, Narere, 8 Miles. Businessman
PLAINTIFF


AND


URMILA WATI (f/n Narayan) of Nasinu, Hairdresser.
DEFENDANT


Counsel for the Plaintiff: Ms S.S. Devan: G.P. Lala & Assoc.
Counsel for the Defendant: In Person


Date of Judgment: 5 May, 2005
Time of Judgment: 9.30 a.m.


JUDGMENT


This is a S.169 Application.


The plaintiff is the registered owner of Native Lease No. 18336 situate at Narere outside of Suva, being Lot 86, Stage 4 shown as Lot 40 on S.0417 Narere Subdivision. A commercial building occupies the said property.


The defendant is a monthly tenant of Shop No. 2 of the property, where she operates a hair salon business.


On 7 August, 2004 the plaintiff gave one month’s notice to the defendant to vacate the premises. The defendant has failed to vacate. In her affidavit in reply she stated that, while there has never been any written tenancy agreement between the parties, there was clearly a verbal agreement between them for her "to stay and enjoy an open tenancy, of no fixed duration." This the plaintiff has denied. Instead, according to the plaintiff a tenancy agreement was prepared but the defendant had refused to sign.


The law is clear. Where there merely exists a tenancy of no fixed duration and there are no tenancy agreement the presumption is that, it is only for a period of the length of the rent that is paid. In this Case, the tenancy is clearly on a month to month basis.


The plaintiff, as the landlord, has the right to demand vacant possession upon giving 1 month’s notice. This he has done.


The defendant has not advance any defence that would merit this Court granting relief which she seeks. She has not shown any cause within the meaning of section 172 of the Land Transfer Act, why this Court should allow her to continue and remain in possession of the land.


Under the circumstances I will make an Order for immediate vacant possession. The execution to be stayed for a period of 4 weeks to allow the defendant time to move out.


I make no order as to costs.


J. Jitoko
JUDGE


At Suva
5 May 2005


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