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Singh v Lal [2005] FJHC 438; HBC0162j.2004s (25 November 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0162 OF 2004

Between:

CHATTAR SINGH
f/n Sarup Singh
Plaintiff

and

PRAVINA LATA LAL
d/o Sohan Singh
Defendant

Mr. G. P. Shankar for the Plaintiff
Mr. M.K. Sahu Khan for the Defendant

Date of Judgment: 25 November 2005

JUDGMENT

By originating summons dated 7 September 2004 Pravina Lata Lal (the ‘defendant) seeks orders as follows:

(a) That the Plaintiff shows cause why the instrument of Caveat Number 528265 lodged against the Housing Sub-Lease Number 335780 should not be removed under section 109(2) of the Land Transfer Act.

(b) That the Caveat Number 528265 lodged against the Housing Sub-Lease Number 335780 be removed under section 109(2) of the Land Transfer Act

(c) That the action of the Plaintiff against the Defendant be struck out and dismissed with costs on the grounds:-

• (i) it discloses no reasonable cause of action
  
• (ii) It is scandalous, frivolous and/or vexatious.
  
• (iii) It may prejudice, embarrass or delay the fair trial of the action.
  
• (iv) It is otherwise an abuse of the process of the Court.
  

The application is made under s109 of the Land Transfer Act, order 18 of the High Court Rules and the inherent jurisdiction of this Court.

Background

On 6 May 2004 the plaintiff issued Writ of Summons against the defendant who is his step-daughter. The writ was amended on 30 September 2004.

The facts surrounding the circumstances under which the land in dispute has been registered in the name of the defendant are as follows (as stated in the Plaintiff’s claim):

The Defendant is the registered owner of Housing Sub-Lease Number 335780 Lot 28 on DP 6927 with Reference Number IS/6927/28/NDW since 1992 when the Plaintiff bought the property from Housing Authority (hereinafter referred to as the ‘said property’).

The Plaintiff bought two blocks on the said property. Block 25 and 28. Block 25 was on his name and block 28 was on the Defendant’s name as the Housing Authority did not allow the Plaintiff to own two properties.

The Plaintiff was advised by one of the Officers at Housing namely Mr. John Murell that he should allow the Defendant to take the property on trust and at that time she was about 17 years of age and he said later upon the change of Policy the Plaintiff can transfer the property on his name.

The Plaintiff paid for all the documentation work done by them and also paid $12,300.00 being the consideration sum for the property

The Defendant never contributed any single cent towards the contribution sum. The Plaintiff was also under an honest belief that the property would be transferred to him later as he was advised by the Officer of the same.

In the year 2003 the Plaintiff went to Housing and told them that he wanted the property transferred in his name because the Defendant got married but they advised him that it will only be transferred if his step daughter consents.

When the defendant refused to consent to transfer the property the plaintiff lodged a caveat No. 528265 and issued this Writ of Summons along with Motion to extend the caveat supported by an affidavit until further order of this Court or until the determination of this action.

On 19 May 2004 order was made extending the caveat with liberty to apply.

On 7 September 2004 the defendant filed Originating Summons mentioned hereabove and on the same day filed a Statement of Defence and amended on 3 December 2004.

Affidavits from the plaintiff in reply to defendant’s motion to remove caveat have been filed.

As ordered both counsel filed written submissions with the last of the submissions filed on 27 October 2005.

Consideration of reliefs sought under the originating summons

The reliefs sought by the defendant are as stated in the originating summons.

Because the Court gave the defendant ‘liberty to apply’ when it extended the caveat, the defendant is applying, inter alia, for the removal of the caveat.

It is not proper for the defendant to adopt the procedure of originating summons to seek the said reliefs as, there is already a Writ of Summons in place on the issues raised in the Originating Summons.

The application is therefore misconceived and I agree with counsel’s submission in this regard.

As far as the removal of caveat is concerned, I find on the affidavit evidence before me that the plaintiff has a caveatable interest in the property. There are also triable issues.

The defendant’s counsel has made very useful legal submissions and has referred to a number of authorities in support of his argument.

On this application I cannot delve into the merits or demerits of the defendant’s submissions as they are more for the trial of the action. Without a hearing it will not be possible to determine the issues.

Therefore, the defendant’s application to strike out and dismiss the action cannot be acceded to on the facts.

To sum up, I refuse the application for removal of caveat as the caveator’s claim has substance, the claim raises serious questions to be tried and the balance of convenience favours retention of the caveat.

It is ordered that the caveat remains until further order of this Court And it is further ordered that the parties proceed with due diligence with the prosecution of the action.

The originating summons is dismissed with costs against the defendant in the sum of $300.00 to be paid within 14 days.

D. Pathik
Judge

At Suva
25 November 2005