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Kumari v Ram [2013] FJHC 269; HBC63.2013 (14 May 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 63 of 2013

IN THE MATTER
of an Application for possession of Land under Section 169 of the Land Transfer Act.

BETWEEN:

SUDHA KUMARI
of Nadawa, Nasinu, Suva, Housewife and SUDHA KUMARI as Administratix in the Estate of Surya Kumar late of Lot 33 Nadawa, Narere, Suva, Forest Ranger, Deceased, Intestate.
PLAINTIFF

AND:

BALWANT RAM
c/- Babasiga Foodmart Shop, Lot 33, Tiri Road, Nadawa.
DEFENDANT

BEFORE : Justice Deepthi Amaratunga
COUNSEL : Mr. Lajendra for the Plaintiff
Mr. O'Driscoll for the Defendant

Date of Hearing : 1st May, 2013
Date of Judgment : 14th May, 2013

JUDGMENT

1. INTRODUCTION
   

1. The Plaintiff rented a commercial–cum residential premised to the Defendant on a five year lease that is renewable for another term of 5 years. After the expiry of the initial term of five years the Plaintiff sought to evict the Defendant, and a notice to quit was issued but due to a technical error of the said eviction notice which did not grant one month time period the action for eviction was not successful. The Plaintiff had instituted this action for eviction on 12th March, 2013 after proper notice of eviction was served on 8th February, 2013 which allowed one month to vacate the premises.
   

2. ANALYSIS
   

2. The Plaintiff for the second time instituted this action to evict the Defendant from the premises described in the summons. The earlier summons was dismissed due to a technical defect, without considering the merits of the summons since the earlier notice to quit did not grant the Defendant the statutorily stipulated time period, one month. On that basis the earlier action for eviction in terms of the Section 169 of the Land Transfer Act was struck off.
   
3. The Plaintiff served another notice to quit on the 8th February, 2013 which granted one month to vacate the premises and after the expiry of one month the present action was instituted on 12th March, 2013. The Defendant does not dispute the proprietary interest of the Plaintiff to the premises. The Plaintiff had annexed a certified copy of the Housing Authority Sub-lease which in its memorial indicate the name of the Plaintiff as the administrix of the one undivided half share of the property which belonged to late Surya Kumar and as the owner of the remaining undivided half share of the property.
   
4. Section 172 of the Land Transfer Act states as follows
   

"If the person summoned appears he may show cause why he refuses to give possession of such land and, if he proves to the satisfaction of the judge a right to the possession of the land, the judge shall dismiss the summons with costs against the proprietor, mortgagee or lessor or he may make any order and impose any terms he may think fit.

Provided that the dismissal of the summons shall not prejudice the right of the plaintiff to take any other proceeding against the person summoned to which he may be otherwise entitled.

Provided also that in the case of a lessor against a lessee, if the lessee, before the hearing, pay or tender all rent due and all costs incurred by the lessor, the judge shall dismiss the summons."

5. The Defendant in his affidavit in opposition stated that on 3rd September, 2007 the Plaintiff had entered in to a tenancy agreement for the premises in issue for 5 years, which was subject to renewal. The opposition to the eviction is based on the said agreement which allowed renewal of the lease for further 5 years starting from September, 2012.
   
6. The burden of proof of such renewed tenancy is with the Defendant. The Plaintiff had not indicated a single communication between the parties relating to renewal. There was neither a request nor any consent at any time for the renewal after the expiration of the initial 5 year period. To the contrary, the Plaintiff soon after the expiration of the initial term of 5 years which ended on 2nd September, 2012 had issued a notice to quit on 6th September, 2012 indicating Plaintiff's clear intension of non-renewal.
   
7. So, the contention of the Defendant that the lease was renewed cannot be accepted. The Defendant also tried to substantiate the said contention on the acceptance of rent, but quite contrary the solicitors of the Plaintiff had indicated that any acceptance of rent is without prejudice to the notice to quit. If rent is not accepted the occupation of the Defendant will unjustly benefit the wrongdoer, who is not only occupying the premises without the consent of the Plaintiff, but also not paying rent for said period of occupation without the consent of the Plaintiff. The payment of rent and the renewal of lease are not one and the same. The renewal of the lease has to be in terms of the lease agreement between the parties and there is no evidence of an offer for extension or discussion of extension on or around the time of expiry of the initial term of 5 years or during the said term of five years submitted by the Defendant. The Plaintiff had issued a notice to quit soon after the expiration of the initial term of 5 years on the 6th September, 2012. In the circumstances there is clear indication of the Plaintiff not to renew the term of lease for another five years from September, 2012. So, by accepting rent after the expiration of the initial term of 5 years the maximum that the Defendant can rely, will be a monthly tenancy, and with one month notice it had come to an end. Even this monthly tenancy cannot be established considering the facts of this case where the acceptance of the rent was done after default of the Defendant for more than three months, and the Defendant had not cleared all the arrears till that date.
   
8. Even assuming a renewal, the Defendant had defaulted for more than 8 months and there is no clearance of all the arrears rentals to the date of hearing and all costs associated as required in the proviso to the Section 172 of the Land Transfer Act which stated that 'Provided also that in the case of a lessor against a lessee, if the lessee, before the hearing, pay or tender all rent due and all costs incurred by the lessor, the judge shall dismiss the summons.' The Defendant can be evicted even assuming renewal of the lease since he had not cleared all the arrears and the costs incurred to the Plaintiff since September 2012. There are more than 8 months arrears of rents and costs. The apparent objection to this summons is to buy time since the premises involved business premises.
   
9. The Defendant also contends that he had instituted an action HBC252 of 2012 in High Court where he had sought injunctive relief. This action was filed on 10th September, 2012 and the hearing was before Justice Mutunayagam and decision regarding the injunction is pending and this was informed to me even in the earlier action for eviction, which I dismissed on a technical point. I do not think that I am in any way constrained by this pending decision of Justice Mutunayagam. It is trite law that mere pending action is not sufficient to thwart the Plaintiff's right to evict in terms of Section 169 of the Land Transfer Act. It will be unfair for the Plaintiff to refuse such application for eviction unless the Defendant can establish a right to possession in terms of Section 172 of the Land Transfer Act. A pending decision or a pending action is not an establishment of right to remain in property in terms of Section 172 of the Land Transfer Act. Considering that the premises involved contained a business premises any further delay in eviction would greatly prejudice the Plaintiff and put the Defendant in an unjustly enriched situation. The pending decision and the pending civil action is not a hindrance to the Plaintiff's application for eviction.
   

100. CONCLUSION
     

10. The Defendant's main objection is based on the renewal of lease. The burden is on the Defendant to prove an extension. There is neither any communication relating to renewal nor even a suggestion to renewal. In contrary 4 days after the expiry the Plaintiff had served a notice to quit on the Defendant. No reasonable person would consider any renewal in such circumstances. This is evident by Defendant filing an action against the Plaintiff seeking injunctive relief in HBC 252 of 2012 on 10th September, 2012. The Defendant had defaulted for more than 8 months and arrears for rents for that period had not been settled fully. The Defendant had paid a month's rent after the expiry of lease and this was done after defaulting for more than 3 months in December, 2012 and now seeks to rely on the said acceptance to establish a renewal. This cannot be accepted. The filing of the action HBC 252 of 2012 clearly demonstrate the non renewal of the lease. The mere pending of an action is not sufficient to establish a right to possession in terms of Section 172 of Land Transfer Act. The behavior of the Defendant indicate an abuse of process of the court to remain in occupation of the business premises even without payment of rent. In the circumstances I grant the Plaintiff immediate possession and also a cost of $1,000 assessed summarily to be paid within in 21 days.
    

4. FINAL ORDERS
   

1. The Plaintiff is granted immediate possession of the premises described in the originating summons.
   
2. The Plaintiff is granted a cost of $ 1,000 assessed summarily.
   

Dated at Suva this 14th day of May, 2013.

.................................................
Justice Deepthi Amaratunga
High Court, Suva