Restoran Naiz Ali Sdn. Bhd. v House of Pakeeza Sdn. Bhd. (WA-22IP-40-05/2024)

RESTORAN NAIZ ALI SDN. BHD. …PLAINTIFFS (Company No.: 144339-M))

RIZAL ALI BIN NAIZALI (IC No.: 750721-08-6039) Trading as Pakeeza Restaurant & Catering (Business Registration No.: 200003010166/IP0152682-T)

HOUSE OF PAKEEZA SDN BHD …DEFENDANTS (Company No.: 565564-W))

MOHAMED AMIN BIN MOHAMED SHABIR (IC No.: 530817-08-6565)

MOHD FIRDAUS RAMZAN BIN MOHAMED AMIN (IC No.: 820626-08-6189)

[Enclosure 116 - Application to strike out suit under Order 18 rule 19]

In this suit two applications were filed and heard on the same day, i.e., 01-04-2026.

The plaintiffs filed Enclosure 121 for an order for this suit [“Suit 40”] to be tried together with another suit between the parties in Civil Suit No: WA-22IP-41-05/202 [“Suit 41”]. The defendants filed Enclosure 116 pursuant to order 18 rule 19 of the Rules of Court 2012 to strike out the plaintiffs’ suit on the ground of duplicity of proceedings.

I allowed the application for Suit 40 to be tried together with Suit

I dismissed the striking out application.

The plaintiffs’ counsel submits that [Enclosure 151] –

3.The Defendants’ Striking Out Application is wholly misconceived and amounts to yet another attempt to delay the determination of the Plaintiffs’ claims. The application is premised on baseless allegations of duplicity between the present Suit and Suit 41 when both suits arise from distinct acts of trademark infringement committed at different locations, involving different offending premises and factual matrices.

4.Although the same trademark is involved, the causes of action are not identical. …

I am of the view, despite an earlier Court of Appeal consent order dated 28-07-2025 agreed between the parties [See Enclosure 122 supporting affidavit page 132 - 133] [“COA Order”], the defendants’ counsel have taken unreasonable positions in these two applications for reasons best known to him. The facts for my view I shall set out below.

The defendants filed appeals to the Court of Appeal against both my orders.

In respect of the Order 18 rule 19 dismissal, the defendants contend that they are entitled to appeal relying on the recent Federal court decision in MT Ventures Sdn Bhd & Anor v QM Print Sdn Bhd and another appeal [2025] 6 MLJ 471 FC.

As to whether the defendants’ counsel is right in his understanding of the law, i.e. MT Ventures Sdn Bhd & Anor v QM Print Sdn Bhd and another appeal [2025] 6 MLJ 471 FC, I shall leave it to the wisdom of the Court of Appeal judges hearing this appeal.

Meanwhile here are my Grounds of Decision for my dismissal of the Order 18 rule 19 application. My Grounds of Decision for Suit 40 to be tried together with Suit 41 will be in a separate Grounds of Decision. Material facts

The plaintiffs in both Suit 40 and Suit 41 are Restoran Naiz Ali Sdn. Bhd And Rizal Ali Bin Naiz Ali [Berniaga sebagai Pakeeza Restaurant & Catering]. Suit 40

In Suit 40 the plaintiffs sued the following defendants for, inter-alia, breach of trademarks and or passing off at their restaurant in Petaling Jaya. [“Pakeeza PJ”] [See Statement of Claim in Enclosure 104] –

MOHD FIRDAUS RAMZAN BIN MOHAMED AMIN Suit 41

In Suit 41 the plaintiffs sued the following four defendants for, inter-alia, breach of trademarks and or passing off at their restaurant in Chow Kit, Kuala Lumpur. [“Pakeeza Chow Kit”] [See Statement of Claim in Enclosure 109]-

On the 2nd defendant in Suit 40 Mohamed Amin Bin Mohamed Shabir applied to intervene in Suit 41 to be made the 5th defendant in Suit 41. The reason given was that his interest would be affected by the prayers sought by the plaintiffs as he claimed he is the owner of the trademark “House of Pakeeza” [See Enclosure 18 of Suit 41]. On 05-03-2025 I allowed the intervention.

The plaintiffs appealed to the Court of Appeal. On 28-07-2025 a consent order [i.e. the COA Order] was agreed whereby-i. the appeal by the plaintiffs was struck out; ii. the 2nd defendant is allowed to intervene in Suit 41 as the 5th defendant; and iii. the 1st and 3rd defendants in Suit 40 were also added as the 6th and 7th defendants in Suit 41. [for the COA Order See Enclosure 122 supporting affidavit page 132 - 133].

So, ultimately at the end of the day all three defendants in Suit 40 were added as defendants in Suit 41 joining four other defendants in Suit 41 who are not defendants in Suit 40. Abuse of process manoeuvrings by the defendants in Suit 40

The 2nd defendant had earlier filed an application in Suit 41 for Suit 40 and 41 to be heard together [See Enclosure 44]. However, a day after the COA Order the 2nd defendant withdrew the application on 29-07-2025.

The defendants now say Suit 40 is a duplicity. The defendants filed to strike out the plaintiffs’ Suit 40 on the ground of duplicity of proceedings with Suit 41 pursuant to order 18 rule 19 of the Rules of Court 2012. [Enclosure 116]. Plaintiffs filed for an order for this suit to be tried together with Suit 41

As the defendants have withdrawn their application for Suit 40 and 41 to be heard together, the plaintiffs filed for an order for this suit i.e. Suit 40 to be tried together with Suit 41. [Enclosure 121].

As mentioned above, I allowed the application [Enclosure 121] for Suit 40 to be tried together with Suit 41 and dismissed the striking out application [Enclosure 116] to strike out Suit 40. Reasons for dismissal of the defendants’ striking out application to strike out Suit 40 [Enclosure 116]

I begin with the law. Law

In Edward Goh Geok Seng v Dunstan Dumpangol & Ors [1989] 2 MLJ 110 HC the High Court dismissed a striking out of a suit alleged to be similar with another suit. The Judge said - I am satisfied that the same prayers have been asked for and substantially the same issues have been raised in the said suits. This alone will not entitle the defendants to succeed, Other factors will have to be considered as well. Firstly, the suits are all pending before the same High Court though due to administrative arrangement they are to be heard before different judges. Secondly, none of the prayers and issues raised in the suits have been determined on merits. Thirdly, the suits are capable of being consolidated on the grounds that the rights to relief claimed arise out of the same transaction and/or series of transactions and further by reason of the aforesaid two factors it is desirable that an order for consolidation may be made. The suits can be consolidated to the extent that Suit 162 be ordered to stand as a counterclaim. In the final analysis I am satisfied that there is no improper purpose on the part of the plaintiff in filing the present action. Therefore, I cannot see how any question of abuse of the process of the court can be said to arise. [Emphasis added]

In KMS Builders Sdn Bhd v Hazama Corporation [2002] 8 CLJ 553 HC the Court held there is no duplicity of proceedings when the causes of action and reliefs differ even if there is some factual overlap. At page 572 e to d, the Judge said- … although there are some ancillary issues which overlap (ie, the issue on the arbitration clause), this alone will not entitle the defendant to succeed in striking out. Application to Facts

In Suit 40 the plaintiffs sued for trademark infringements at a restaurant operated by the defendants in Pakeeza PJ. In Suit 41 the plaintiffs sued different defendant’s for trademark infringements at a restaurant operated by these different defendants in Pakeeza Chow Kit. There is therefore no duplicity of proceedings.

It is the defendants who wanted to intervene in Suit 41 to be added as defendants. Having obtained that order and having agreed to a consent COA Order, I view this striking out application by counsel for the defendant as an abuse of process purely to delay the plaintiffs’ suit.

For the reasons above, I dismiss the defendants’ application Enclosure 116 to strike out this suit with costs subject to allocatur. Dated: 27th April 2026 …………(signed)………… Leong Wai Hong Judge High Court of Malaya Kuala Lumpur (NCC 6) Counsel for plaintiffs: Ammera Hadi, Izzat Asyraf Zamri, Izzati Syahirah (Pupil in chamber). Azmi & Associates (Kuala Lumpur). Counsel for defendants: S. Surendran, Siti Noorhazerah, Nur Syafiqah and Sri Aisyah (Pupil in Chamber). Suren Subra Law Chambers (Kuala Lumpur). LEGISLATION REFERRED TO: 1) Rules of Court 2012 order 18 rule 19. CASES REFERRED TO: 1) Edward Goh Geok Seng v Dunstan Dumpangol & Ors [1989] 2 MLJ 110 HC. 2) KMS Builders Sdn Bhd v Hazama Corporation [2002] 8 CLJ 553 HC. 3) MT Ventures Sdn Bhd & Anor v QM Print Sdn Bhd and another appeal [2025] 6 MLJ 471 FC.