Puganesvaran A/L Lachemanan v Lachemanan A/L Sinnasamy (B-02(IM)(NCvC)-1817-11/2023)

PUGANESVARAN A/L LACHEMANAN (No. K/P: 800110-14-5987)

NAGARAJAN A/L S. LACHEMANAN (No. K/P: 820509-14-5397) ... APPELLANTS AND LACHEMANAN A/L SINNASAMY (No. K/P: 540723-14-5017) ... RESPONDENT [In the matter of the High Court of Malaya at Shah Alam Writ of Summons No. BA-22NCvC-544-12/2020 Between Lachemanan A/L Sinnasamy (No. K/P: 540723-14-5017) ... Plaintiff

Puganesvaran A/L Lachemanan (No. K/P 800110-14-5987)

Nagarajan A/L S. Lachemanan (No. K/P 820509-14-5397)

Syarikat Bintang Cable Technology Sdn Bhd (No. Syarikat 517707-X) ... Defendants] 21/11/2025 10:05:26 B-02(IM)(NCvC)-1817-11/2023 Kand. 62 S/N TaQrr1/U/kKiaLQhinh/vA CORAM MOHAMED ZAINI BIN MAZLAN, JCA FAIZAH BINTI JAMALUDIN, JCA MOHD RADZI BIN ABDUL HAMID, JCA GROUNDS OF JUDGMENT

When a respondent is ordered to do an act under a mandatory injunction by a certain time and there is non-compliance of that order leading to a committal proceedings in which the respondent was fined, can the plaintiff then apply pursuant to Order 45 Rule 6 of the Rules of Court 2012 to set a new time for the respondent to comply with that mandatory injunction and does the Court have the power under that provision to set a new time for compliance when the respondent has already been found guilty and fined. If the Court does not have the power to do so under Order 45 Rule 6, can the Court still set a new time for compliance under its inherent power?

Those were the main issues that were presented for decision by this Court. After hearing arguments of parties, this Court found in the negative to the first and second questions and in the affirmative to S/N TaQrr1/U/kKiaLQhinh/vA the third question. This Grounds of Judgment set out this Court’s decision.

The parties will be referred to as they were at the High Court.

The background facts are that the Plaintiff and the 1st and 2nd Defendants had entered into a settlement agreement to resolve certain disputes between them. All parties are related being family members. Under the Settlement Agreement dated 2.2.2020, the 1st and 2nd Defendants undertook to pay to the Plaintiff an amount of RM5,500,000.00 from the proceeds of the sale of a piece of property owned by the 3rd Defendant. The Defendants sold that property for RM8,000,000.00 but failed to pay the Plaintiff what was promised and that led to a claim filed by the Plaintiff in the Shah Alam High Court vide action No. BA-22NCvC-544-12/2020 for the recovery of that sum.

To secure the Plaintiff’s interest in the litigation, the Plaintiff then applied for a mandatory injunction against the 1st and 2nd Defendants requiring them to pay a sum of RM5,500,000.00 into a fixed deposit account of the Defendants’ solicitor’s Client’s Account of Messrs Ram Mo Associates as stakeholders until the disposal of the suit. The High Court granted the Injunction Order against all the Defendants on 21.06.2021 (“Injunction Order”). Pursuant to that S/N TaQrr1/U/kKiaLQhinh/vA Injunction Order, the Defendants were to deposit those monies either jointly or severally, by or before 28.6.2021 (“Initial Date”).

The Injunction Order did not provide that in the event of non-compliance on the Initial Date, the Plaintiff may apply for or the Court may fix any additional date for performance of the Injunction Order by the Defendants.

The Defendants had appealed to the Court of Appeal against the High Court’s decision to grant the Injunction Order. That appeal was not successful.

The Defendants failed to comply with that Injunction Order on grounds of impecuniosity and a committal proceeding was taken by the Plaintiff against the 1st and 2nd Defendants for breach of the Injunction Order. On 21.3.2023, the High Court found against the Defendants and they were fined in the amount of RM200,000.00. That fine was paid.

The matter did not end there. The Plaintiff then applied under enclosure 210 to the High Court for a new date to be fixed for the Defendants to comply with the Injunction Order (“Application’). That Application was granted on 25.10.2023 (“Consequential Order”) and a new date of 25.11.2023 was fixed for performance of the Injunction Order (“New Date”). Thus, on or before that New Date, S/N TaQrr1/U/kKiaLQhinh/vA the Defendants must, jointly or severally, deposit the monies as per the Injunction Order.

The Defendants are dissatisfied with the decision of the High Court in granting the Consequential Order and in fixing the New Date. In the Defendants’ view, since they had paid the fine under the committal proceedings and in the absence of any express provision in the Injunction Order giving the Plaintiff or the Court the liberty to fix any additional dates for compliance after the event of breach, then such an Order cannot be made and is therefore invalid. Thus, the Appeal.

It is not in dispute that as at the date of hearing of this Appeal, the Injunction Order remains unperformed.

In arriving at his decision to grant the Consequential Order and fix the New Date, the Learned High Court Judge held that: (i) the Injunction Order is neither a final Judgment nor Order to pay a monetary sum to the Plaintiff as the very purpose of the Injunction Order was merely for preservation of the subject matter of the suit;

(ii) the Court has a duty to ensure the effectiveness the Injunction Order in order to preserve the subject matter of the suit; (iii) Order 45 Rule 5 and 6 of the Rules of Court 2012 (“ROC”) do not in any way restrict the powers of the Court to set a fresh timeline for the S/N TaQrr1/U/kKiaLQhinh/vA Defendants to comply with the Injunction Order; and (iv) despite payment of the fine, the Defendants are in continuous breach of the Injunction Order and the Court has inherent powers to make consequential orders to give effect to the Injunction Order dated 21.06.2021 and to do justice to the Plaintiff.

Reference was made to the decisions in Z Ltd. v A. [1982] 1 ALL ER 556 and Stone World Sdn Bhd v Engareh (M) Sdn Bhd [2022] 2 MLJ 208.

The Defendants contend that: (i) since the Injunction Order did not provide for the fixing of any additional time for compliance with the Order in the event of any non-compliance, then by fixing only 1 date for compliance with no possibility of new dates to be fixed, the Defendants cannot be said to be in continuous breach after the fine is paid pursuant to the committal proccedings; (ii) a proper construction of Order 45 Rules 5 and 6 of the ROC does not grant the Court with the powers to set a fresh timeline for compliance with the terms of an injunction after the breach been dealt by way of contempt proceedings; (iii) the fixing of new time for compliance under Order 45 Rules 5 and 6 of the ROC only applies to obligations that remain executory and not yet performed; (iv) Order 45 Rule 6 S/N TaQrr1/U/kKiaLQhinh/vA of the ROC cannot be construed to enable a plaintiff to get an extension of time against a defendant, who has already been punished for contempt, so that the defendant can be punished for contempt again and again for the same act which would result in an absurdity and injustice; (v) the Learned High Court Judge is functus officio after the earlier committal proceedings and cannot make further orders on the Injunction Order; (vi) that the Defendants can be subject to a continuous breach of the Injunction Order after the first committal proceedings offends the rule against double jeopardy under Article 7(2) of the Federal Constitution; (vii) the Learned Judge’s further exercise of inherent jurisdiction in granting the Order is an error in the face of an expressed provision of Order 45(6) of the ROC that does not give the power to the Court to set a new time for performance after breach is found under the first committal proceedings; and (viii) the Learned High Court Judge failed to consider the Defendants’ impecuniosity and erred in stating that the Defendants did not rely on their inability to pay in opposing the Plaintiff’s application for the fresh timeline.

Reference was made to the decisions in, inter-alia: Government of Malaysia v Dato Chong Kok Lim [1973] 2 MLJ 74; Hartecon JV Sdn Bhd & Anor v Hartela Contractors Ltd [1996] 2 MLJ 57; Palm Oil Research and Development Board Malaysia & Anor v Premium Vegetable Oils Sdn Bhd & another appeal [2005] 3 MLJ 97; Orchard Circle Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat & Ors [2021] 1 MLJ 180; Messrs Shahinuddin & S/N TaQrr1/U/kKiaLQhinh/vA Ranjit v Ravichantiran Ganesan [2020] MLRHU 385; R Rama Chandran v The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145; and Stone World Sdn Bhd v Engareh (M) Sdn Bhd [2020] 2 MLJ 208.

The Plaintiff argues on the other hand that: (i) the Injunction Order is a continuing Order and therefore the Plaintiff can be in continuous breach if they remain in non-compliance with the directions under that Order notwithstanding that they have been found in breach and fined under a previous committal proceeding; (ii) Order 45 Rule 6 of the ROC does not prohibit the Court from setting a new time for performance after committal has been enforced following initial breach of the Order; (iii) the Order setting a new timeline for performance is a consequential order giving effect to the original Order; (iv) the Learned High Court Judge was correct in applying the inherent powers of the Court to set a new date for performance of the Injunction Order that remains valid and enforceable; (v) the Court was not functus officio after granting the Injunction Order as the Order to set a new date for performance did not amount to varying, altering or amending the original Injunction Order but merely to ensure compliance of that Order; and (vi) impecuniosity is not a ground excusing compliance with an order of Court which must be obeyed in accordance with its terms.

In support of his case the Plaintiff referred to the decisions in Tengku Dato’ Kamal ibni Sir Sultan Abu Bakar & Ors v Bursa Malaysian Securities Bhd & Ors [2020] 5 CLJ 751; Stone World Sdn Bhd v Engareh (M) Sdn Bhd [2022] 2 MLJ 208; Golden Star & Ors v Ling Peek Hoe& Ors [2021] 3 CLJ 443; Kanawagi a/l Seperumaniam v Penang Port Commission [2202] 8 CLJ 503; Md Amin Md Yusof & Ors v City Villa Sdn Bhd [2004] 3 CLJ 94; Samuels v Linzi Dress Ltd [1980] All ER 803; Tam Lye Chian v Seah heng Lye [1999] 8 CLJ 614; Ezzen Heights Sdn Bhd v Ikhlas Abadi Sdn Bhd (Soh Yu Mian, intervener) [2011] 4 MLJ 173; Datuk Beh Kim Ling & Anor v NEP Holdings (Malaysia) [2024] 1 CLJ 517; and MBf Holdings Bhd & Anor v Houng Hai Kong & Ors [1993] 2 MLJ 516.

After hearing parties and considering all arguments, this Court finds that the main issues to be decided are: (i) whether the Court has the power under Order 42 Rule 6 (1) of the ROC to fix of a new and additional time requiring an act to be done after the original time has lasped due to non-performance; (ii) if there is no such power under Order 45 Rule 6(1) of the ROC then whether the Court can make such Order under its inherent power; (iii) was the High Court functus officio after granting the Injunction Order; and (iv) whether the High S/N TaQrr1/U/kKiaLQhinh/vA Court failed to give sufficient weight to the Defendants’ impecuniosity in granting the consequential order. DELIBERATIONS AND FINDINGS Can the Court fix a new time for doing an act under Order 45 Rule 6(1) when the original time for doing that act has passed due to non-performance?

The Injunction Order states clearly and definitively that the Defendants are to deposit a sum of RM5,500,000.00 into the Defendants’ Solicitors’ Fixed Deposit Clients’ Account on or before 28.6.2021. The Injunction Order did not however anticipate that there could possibly be a non-compliance of that Order by the date fixed and to provide for terms that would allow for the Plaintiff to apply for further orders to fix a new date for performance. Since the Defendants failed in their appeal against the granting of that Injunction Order, then that Order remains valid and enforceable according to its terms. That Order complies with Order 42 Rule 6 of the ROC that requires an order, which requires a person to do an act, shall specify the time within which the act is to be done.

In deliberating on this issue, the provisions of Orders 42 Rule 6 and Order 45 Rule 5 and 6 will be considered. The commentators to the Malaysian Civil Procedure 2021, Volume 1, expressed the view that Order 42 Rule 6 should be read together with Order 45 Rule 6.

Order 42 Rule 6 (1) requires that where an order requires a person to do some act then the Court must specify time for that act to be done. The time to be specified is after the service of judgment or some other time. That will be the first timeline to be specified and fixed by the Court. However where the order is to pay money to some other person (Order 42 Rule 6(2)), then time need not be specified. Although the order remains enforceable, a timeframe must be specified before any judgment or enforcement can be taken for non-compliance with the order. If no time is specified and is required to be specified then the absence can be cured by way of a supplemental order (see Loh Eng Leong v Lo Mu Sen & Sons Sdn Bhd & Anor [2003] 4 MLJ 284 and Grenek Sdn Bhd v Lew Wa Chow [1991] 1 MLJ 125).

Order 45 Rule 6(1) provides: “Judgment or order requiring act to be done: Order fixing time for doing it (O. 45, r. 6)

(1) Notwithstanding that a judgment or order requiring a person to do an act specifies a time within which the act is to be done, the Court shall, without prejudice to Order 3, rule 5, have power to make an order requiring the act to be done within another time, being such time after service of that order, or such other time as may be specified therein.”

Reading Order 45 Rule 6(1), it is this Court’s impression that the words: ‘Notwithstanding that a judgment or order requiring a person to do an act specifies a time within which the act is to be done, the Court shall, without prejudice to Order 3 Rule 5, have power to make an order requiring the act to be done within another time, being such time after service of that order, or such other time as may be specified there’ refer only to the act to be done within the original time specified in the original order and not in a consequential order.

The words “...requiring the act to be done within another time, being such time after service of that order, or such other time as may be specified there…” indicate that the time fixed specifically refers to the time stated in the original order and not a consequential order.

Additionally, we look at Order 45 Rule 5 which states: “Enforcement of judgment to do or abstain from doing an act (O. 45, r. 5)

(1) Where— (a) a person required by a judgment or order to do an act within a time specified in the judgment or order refuses or neglects to do it within that time or, as the case may be, within that time as extended or abridged under Order 3, rule 5; or…”

Order 45 Rule 5(1) refers to a situation where the person required to do an act refuses or neglects to do that act within the original time or within that original time that has been extended or abridged. The explicit words “extended or abridged” can only refer to the original date under the original judgment or order. This Court does not find those words refer to a fresh or new date for performance in addition to the original date.

If the legislators had intended for Order 45 Rule 6(1) to provide the Court with the the power to fix any additional date for doing the act after an event of non-compliance has occurred then that provision should have gone further than just mirroring Order 42 Rule 5(1). It should have stated something to the effect that notwithstanding any time fixed for doing an act that has passed or expired due to non-compliance, the Court shall have the power to fix any additional time for that act to be done.

Thus, having read Order 42 Rule 6 and Order 45 Rules 5 and 6 collectively, it is this Court’s view that the proper construction of Order 45 Rule 6(1) is that the fixing of another time for the doing of an act relates only to the performance of the original time in the original order which is still executory. Thus, Order 3 Rule 5 is confined only to the extension or abridgement of the original time which remains to be fulfilled. It does not extend to the fixing of a further and additional time for doing the act in addition to the original time which has since passed or expired.

It follows therefore that the Learned Judge fell into error when he held the view that Order 45 Rule 6(1) gave the Court the power to fix a further and additional date for the performance of the Injunction Order after the original date had passed due to non-compliance.

Since this Court finds that the Court is not vested with such power, then the fixing of the New Date pursuant to that provision is therefore irregular and invalid. Can a new date for the performance of the Injunction be ordered by invoking the inherent powers of the Court pursuant to Order 92 Rule 4 ROC ?

The Defendants contend with reference to the decision in Rama Chandran [supra] that the exercise of inherent jurisdiction is subject to there not being an express provision in the Rules relating to the matter in issue and that the exercise of that jurisdiction will not conflict with the intention of the legislature to be found in the rules. Wan Yahya FCJ (as his Lordship then was) stated the following: “In my opinion, the inherent powers of the court as provided under O 92 r 4 of the Rules of the High Court 1980 must not only be exercised subject to other express provision of the Rules but it must also not be in conflict with the intention of the legislature to be found within the Rules or other substantive legislation. … S/N TaQrr1/U/kKiaLQhinh/vA I would readily agree that inherent powers as contained in O 92 r 4 are indispensible implements for use of the courts to prevent injustice or any abuse of the process of the court. But the powers themselves stand to be abused if they were to be exercised without circumspection by the courts. For myself, I would undoubtedly use them in cases where Parliament has omitted to provide in the Act something so glaring which obviously ought to have been there. But on no account should these powers be used to defeat the intention of the legislature, especially so when it has deliberately excluded the use of such particular remedy from any legislation.”

The Defendants further argue that since Order 45 Rule 6(1) does not grant the powers to the Court to set an additional time for performance of the Injunction Order, the Court cannot rely on its inherent jurisdiction to make that order. It was also argued that since the decision of the High Court in granting the order for the New Date is primarily premised on the application of that provision, the High Court cannot in the same breath rely on its inherent jurisdiction to grant the Order.

Before dealing with that issue, it would be necessary first to state some basic and general matters relevant to the nature of a Court order. Firstly, an order of the Court must be obeyed and construed in accordance with its terms (see Tam Lye Chuian [supra] and MBf Holdings Bhd [supra]). Secondly, unless and until it is set aside every order or judgment of the Court remains valid and enforceable S/N TaQrr1/U/kKiaLQhinh/vA in accordance with its terms (see Lee Tain Tshung v Hong Leong Finance Bhd [2000] 3 MLJ 364). Thirdly, where an order has been perfected and no mention is made in it on the liberty to apply for further orders on the workings of the order then such liberty is to be implied (see Sungai Biak Tin Mines Ltd v Saw Choo Teng (No 2) [1970] 2 MLJ 226 and Credit Corp (M) Sdn Bhd v National Insurance Co Ltd [1975] 2 MLJ 104).

Thus the Injunction Order in this present Application is an Order that must be obeyed especially when the Order remains valid and enforceable. It behoves therefore upon the Defendants to obey it unless it has been set aside. In T.O. Thomas v. Asia Fishing Industry (Pte) Ltd [1977] 1 MLJ 152 the Federal Court held: “When an injunction has been made against a person appellant cannot aid and abet that person to flout it for that will be contempt. That person can appear in court and contest the injunction by asking the court to vacate it. Contempt of court arises on the wilful disobedience of the injunction whether it is made with or without jurisdiction. The question whether “the court order” has been suspended or modified is a matter for the court to decide when it is properly before the court. This is not a matter for appellant to arbitrarily so construe. Where a plaintiff has proved his right to an injunction against a nuisance or other injury, it is no part of the duty of the court to inquire in what way the defendant can best remove it. See Attorney-General v Colney Hatch Lunatic Asylum (1869) 4 S/N TaQrr1/U/kKiaLQhinh/vA Ch app 146. “The court order” has never been discharged. There is no question of the undertaking suspending “the court order”. An order even irregularly obtained cannot be treated as a nullity, but must be implicitly obeyed, until by proper application it is discharged. This view is supported by authority. In dealing with the contention that the original order had been erroneously granted in Fennings v Humphrey (1841) 4 Beav 1; 49 ER 237 Lord Langdale M.R. said:— “It is clear, that a party who is served with an order may be guilty of contempt for disobedience, in a case in which the order ought not to have been made. He is not to determine for himself, but ought to come to the court for relief, if advised that the order is invalid.” Nothing is more incumbent upon the courts than to preserve their proceedings from being misrepresented, nor is there anything of more pernicious consequence than to prejudice the minds of the public against the courts.”

Now, since the Defendants have committed an earlier breach and consequently fined pursuant to a committal proceeding, are they now released from further complying with the Injunction Order? In this Court’s view, they are not.

Since the Injunction Order remains to be performed, they cannot be released from the obligations therein until they are fully and completely performed. It is clear from the decisions in T.O. Thomas [supra], Golden Star [supra], Thiruchelvasegaram A/L Manickavasegar v. Mahadevi A/P Nadchatiram [1998] 4 CLJ 883 and Hup Soon Omnibus Co Sdn Bhd & Anor v. Lim Chee @ Lam Kum Chee [2018] 1 CLJ 641 that a party is not excused from complying with a Court order for as long as it remains valid, enforceable and unperformed. That means a finding of guilt and payment of fine in a prior committal proceeding does not serve to release the Defendants from performing the Injunction Order. The prior committal order should serve to remind and hasten them to comply with the Order instead of finding ways to avoid it.

For those reasons, this Court does not agree with the Defendants that the Injunction Order in this Application is a one-off Order that expires with the lapse of time and payment of a fine. The terms of the Order are not couched in that fashion. It states that the monies must be paid to the Solicitors’ Fixed Deposit Client’s Account by 28.6.2021 but did not state that the Order will expire and become unenforceable once the time expires due to non-compliance, whether or not committal proceedings will follow. To construe the Order in that manner is to provide an escape route for the Defendants to deliberately and indefinitely neglect to perform the Order. That could not have been the underlying tone and intention of the Injunction Order.

As stated earlier, an Order remains valid and enforceable until set aside but it cannot be enforced if there is no time fixed for doing the act. Since the Injunction Order here only stated one date for performance, then the Order ends only as far as the date for performance is concerned without affecting the substratum of the Injunction Order, which is to deposit the monies. Therefore, to enable the Plaintiff to continually enforce the Order, he must apply to fix another date for performance.

The Order is therefore not rendered spent merely by the fact that the Order does not expressly provide for the liberty to apply for further orders or by the fact of the Defendants’ committal from continue pursuing performance of the Order. To hold otherwise is to frustrate the administration of justice and due process of law.

This brings us back to the issue of inherent powers of the Court. In Permodalan MBF Sdn Bhd v. Tan Sri Datuk Seri Hamzah Abu Samah & Ors [1988] 1 CLJ 331 the Supreme Court speaking through Lee Hun Hoe CJ (Borneo) expressed: “Order 92 r. 4 RHC provides:

For the removal of doubts it is hereby declared that nothing in these rules shall be deemed to limit or affect the inherent powers of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court. S/N TaQrr1/U/kKiaLQhinh/vA We read this to mean that the rules cannot interfere with the exercise of the inherent powers by the Court so long as it deems it necessary to prevent any injustice or any abuse of its own process. It follows that where the rules contain provision making available sufficient remedies, the Court will not invoke its inherent powers.”

That view was later endorsed by the Federal Court in Majlis Agama Islam Selangor v. Bong Boon Chuen & Ors [2009] 6 CLJ 405; [2009] 6 MLJ 307: “[26] On the appellant's contention that this court can invoke its inherent jurisdiction to allow the applicant to come in as a party to the judicial proceedings in the event that the court finds O. 15 r. 6(2)(b) of the RHC to be inapplicable, I am of the view that such a contention is untenable in the circumstances of this case. There is a specific provision in O. 53 r. 8(1) of the RHC. The inherent jurisdiction of this court cannot be invoked to override the application of a specific rule. On this point in the case of Permodalan MBf Sdn Bhd v. Tan Sri Dato' Seri Hamzah bin Abu Samah & Ors [1988] 1 CLJ 31; [1988] 1 CLJ (Rep) 244 the Supreme Court had this to say: “It follows that where the rules contain provisions making available sufficient remedies, the Court will not invoke its inherent powers.”

Based on those decisions, it would be clear that where the Rules do provide for the power or reliefs in a specific matter, then the Court cannot invoke its inherent jurisdiction to determine otherwise. An express provision of the Rules binds the Court.

Now, since this Court holds the view that a new time for the performance of the Injunction Order cannot be fixed under Order 45 Rule 6(1) after the original time has passed or lapsed, then in the interest of justice, the exercise of inherent power of the Court becomes available and necessary to give effect to the Injunction Order and not to render it ineffective. The Federal Court had decided in Stone World [supra] that: “[19] Where is this jurisdiction to amend or supplement the original sealed order found? It is found in the inherent jurisdiction of the courts. The superior courts possess a residual inherent jurisdiction to, inter alia, clarify the terms of an order and to make ancillary orders primarily to give effect to the decision or judgment handed down. It is a necessary jurisdiction to enable a court to ensure that substantive justice between the parties is served, so as to give effect to its primary decision, through the dispensing of procedural justice. [20] That the court has the jurisdiction to dispense ancillary or supplemental orders to augment or substitute the original relief or remedy so as to give effect to the intent and purpose of its original S/N TaQrr1/U/kKiaLQhinh/vA decision is not in doubt. The doctrine of functus officio does not encroach upon that jurisdiction. Liberty to Apply [21] And the form in which the exercise of such inherent jurisdiction is effected is via the ‘liberty to apply’ rule. The general principle is that all court orders carry with them the inherent liberty to apply, although this right is often expressly reserved in relation to final orders. The existence of such an inherent right has been expressly recognised in two Malaysian cases. [22] In Sungai Biak Tin Mines Ltd v Saw Choo Theng & Anor (No 2) [1970] 2 MLJ 226 a decision of the Federal Court, the practical application of the liberty to apply rule is clearly demonstrated. The facts, in summary, are that judgment had been given in favour of the defendant, the appellant in the case, to the effect that the defendant had not been guilty of a breach of a mining sub-lease. … [36] From our case-law it is evident that liberty to apply for consequential orders in order to work out or give effect to the final judgment or order of the court is well within the inherent jurisdiction of the Court. To this extent the rule of functus officio is not transgressed. And in the instant appeal both the High Court and the Court of Appeal concluded on well-articulated grounds that the Consequential Order was required to give effect to the original S/N TaQrr1/U/kKiaLQhinh/vA judgment against Stone World for liability in detinue. There would be no reason to disagree with the courts below, with great respect.”

Following Stone World [supra], this Court declines to agree with the Defendants that the Learned High Court Judge was wrong in invoking the inherent power of the Court to grant the Order as an alternative to the granting of the Consequential Order pursuant to Order 45 Rule 6(1). Although the Injunction Order did not expressly provide liberty to the Plaintiff to apply for further orders, that liberty is implied and inherent in the Court’s powers. Was the Learned High Court Judge functus officio

It is our view that the Consequential Order was not a matter touching on the merits of the committal proceedings or the order which had already been decided and passed but on the need to ensure compliance with the Order by the Defendants. There was no revision, alteration or modification to the crux of the Order, that is to transfer monies into the Defendants’ Solicitors’ Fixed Deposit Clients’ Account. This Court agrees with the Plaintiff that the Consequential Order is consequential to an Order that was still alive and unperformed. The consequential order is necessary to preserve the subject matter of the Injunction Order and its performance. Referring again to the decision in Stone World [supra]: S/N TaQrr1/U/kKiaLQhinh/vA “[63] It will be recalled that the effect of the Consequential Order was to substitute the delivery up portion of prayer (a) with damages to be assessed equivalent to the value of the marble stone. This is a recognised and accepted relief for a finding of detinue. It was not granted cumulatively with prayer (a) but in substitution of the same. The substitution in itself cannot amount to a variation calculated to infringe the functus officio rule. [64] Added to this is the irrefutable fact that the original judgment and the findings there are in no way impaired, reopened, varied or altered by the grant of the Consequential Order. The finding of liability for detinue against Stone World is intact, meaning that the essence of the finding and judgment of the trial court remains intact. [65] Therefore the argument that the reliefs are mutually exclusive and the Consequential Order is a variation of the original judgment and order is without merit. [66] The High Court was fully entitled to make the Consequential Order as the doctrine of functus officio does not take away the inherent power of court to make consequential orders. We are fortified in o ur conclusion by inter alia, the cases ofYap Kian @ Yap Sin Tian v Poh Chin Chuan @ Ors [2016] 7 MLJ 805 and CCI Technology Sdn Bhd & Ors v. Pernec Ebiz Sdn Bhd [2016] 2 CLJ

S/N TaQrr1/U/kKiaLQhinh/vA [67] The High Court was entitled to make such further order as was necessary to give effect to its judgment, and exercised its inherent jurisdiction to do so under Order 92 Rule 4. The liberty to apply rule is an exception to the functus officio doctrine allowing the Court to give effect to its final judgment or order by making consequential orders.” Whether the Learned High Court should have given the Defendants the benefit of their impecuniosity

The Defendants argue that the Learned High Court Judge should have given greater weight to their impecuniosity before arriving at his decision to grant the Consequential Order. They further claim that they had in their affidavits show that they were unable to comply with the Injunction Order simply because they did not have the funds. By making the Consequential Order, the Defendants are put at risk of committing a continuous breach of the Order and a further committal proceedings against them. For that reason, the Defendants argue that the Consequential Order leads to injustice.

As discussed earlier, the order of a Court must be obeyed unless and until it is declared invalid and set aside. Even if the Defendants are indeed in dire financial condition, putting them in a position not able to deposit the monies, they ought to then apply to vary the Injunction Order in respect of the amount to be deposited and how S/N TaQrr1/U/kKiaLQhinh/vA it can be made. But instead of doing so, they chose to appeal against the Injunction Order and the Consequential Order.

We do observe that the Defendants’ conduct has not been entirely noble. They failed to win over this Court in the appeal against the Injunction Order and we do not find that the Defendants’ condition any more different than when this Court heard the earlier appeal where impecuniosity was also argued. As far as this Appeal is concerned, we do not find sufficient reason to set aside the Consequential Order.

To add, we do not find any merit in the argument that the Consequential Order infringes the rule against double jeopardy under Article 7(2) of the Federal Constitution. The Consequential Order fixes a new date for performance of the Injunction Order and any failure to perform the Order by the New Date will be a distinct and separate breach of the Order. Thus, any subsequent proceedings following that breach will be premised on a distinct and fresh breach and not based on the first breach.

In conclusion, this Court does not find any merit to reverse the decision of the High Court in granting the Consequential Order. Even if the Consequential Order could not be granted under Order