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Practice and procedure — special plea — lis pendens — not an absolute bar — court may disregard defence when it is just and equitable to do so — delay affecting deceased estate and prejudicing beneficiaries — plea dismissed
The applicant was the executor of a deceased estate. The respondent was tenant of premises owned by the estate. The applicant sought the eviction of the respondent for failure to pay rent. The respondent raised the defence of lis pendens, on the grounds that the applicant had brought similar proceedings already, which had not been finalised. Held, that the principle of lis pendens is not an absolute bar. It is discretionary upon the court to decide whether it is just and equitable that it must be allowed to proceed. This matter involved a deceased estate, which should receive the court's sympathetic hearing and urgent attention, for failure to do so will result in beneficiaries suffering. It would be unjust and inequitable that the finalisation of this matter be suspended by a defence of lis alibi pendens.
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