Abdul Kader Bin Abdul Razak v 1. ) Pathmanathan A/L Muniandy @Krishnan (WA-22NCvC-656-11/2022)

PATHMANATHAN A/L MUNIANDY @ KRISHNAN

(No. Syarikat: 201901027496)

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PENGARAH TANAH DAN GALIAN NEGERI SELANGOR ... DEFENDANTS (In the Original Action) AND BETWEEN (No. Syarikat: 201901027496) … PLAINTIFF 14/04/2025 10:46:28 WA-22NCvC-656-11/2022 Kand. 127 S/N /xYySduIy0iiK2GJwdsPJg

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SALINAH BINTI ABDUL KADER … DEFENDANTS (In the Counterclaim)

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SALINAH BINTI ABDUL KADER … PLAINTIFFS

PATHMANATHAN A/L MUNIANDY @ KRISHNAN

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(No. Syarikat: 201901027496) … DEFENDANTS (In the Counterclaim to the Counterclaim) S/N /xYySduIy0iiK2GJwdsPJg GROUNDS OF JUDGMENT Introduction [1] This was an application by Abdul Kader Bin Abdul Razak (encl. 97), the Plaintiff in the original action pursuant to O. 34, r. 2(4) of the Rules of Court 2012 (‘RC 2012’) or the inherent jurisdiction of the court to set aside the Order of the Court dated 5.11.2024 where the Plaintiff’s claim and the counterclaim were struck out with liberty to file afresh (‘Striking Out Order’). The Plaintiff also prayed for this suit to be reinstated and the trial dates which were fixed on 6 and 7 January 2025 and 3, 4, 10 and 11 March 2025 to remain. [2] The application was heard on 25.2.2025 and after having considered the affidavit evidence and written submissions by the Plaintiff and the 1st Defendant (‘D1’) and 2nd Defendant (‘D2’) in the original action (even though at the case management (‘CM’) on 27.11.2024, the counsel for the 3rd and 4th Defendants (‘D3 and D4’) in the original action informed the court that D3 and D4 were contesting encl. 97, no Affidavit In Reply (‘AIR’)and written submission were filed by them), the Plaintiff’s application was dismissed. [3] These are my full grounds of judgment for purposes of the Plaintiff’s appeal against my decision. The Cause Papers [4] The cause papers are as follows: S/N /xYySduIy0iiK2GJwdsPJg

Notice of Application dated 25.11.2024 (encl. 97);

the Plaintiff’s Affidavit In Support (‘AIS’) affirmed on 25.11.2024 (encl. 98);

the Certificate of Urgency dated 25.11.2024 (encl. 99);

D1’s AIR affirmed on 5.12.2024 (encl. 100);

D2’s AIR affirmed by its Director, Christopher Elvin Joseph on 13.12.2024 (encl. 104);

the Plaintiff’s AIR to D2’s AIR affirmed on 6.1.2025 (encls. 105); and

the Plaintiff’s AIR to D1’s AIR affirmed on 6.1.2025 (encl. 106). Brief Background Facts [5] Abdul Kader is the purchaser and registered owner of a semi-detached bungalow located at No. 26, Jalan SS20/21, 47400 Petaling Jaya, Selangor held under No. Hakmilik HSD 164174, No. PT 6978, Bandar Petaling Jaya, Daerah Petaling Negeri Selangor (‘Property’). [6] Salinah is Abdul Kader’s daughter and resides with him at the Property. [7] Abdul Kader’s and Salinah’s claims against Crest Properties Sdn Bhd. (‘Crest Properties’) and Murali and the other Defendants in the Original Suit and the Counterclaim to the Counterclaim involve causes S/N /xYySduIy0iiK2GJwdsPJg of action for fraud and forgery; wrongful entry of a Lien Holder's Caveat (‘LHC’); and conspiracy to injure Abdul Kader and Salinah in relation to the Property whereby a Sale and Purchase Agreement dated 26.11.2020 (‘SPA’) was entered into by Abdul Kader with Crest Properties for the purchase of the Property by Crest Properties at the price of RM500,000.00. [8] Among the material clauses of the SPA is Clause 3.03(b) which stipulates that the seller, Abdul Kader, would hand over the original title deed of the Property to the buyer, Crest Properties. Abdul Kader had complied with this contractual provision. [9] Crest Properties and Abdul Kader also signed an agreement allowing Abdul Kader to repurchase the Property (‘Repurchase Agreement’). Hence, in accordance with Clause 6 of the Repurchase Agreement, Crest Properties lodged the LHC on the Property on 15.2.2021. [10] In May 2022, Abdul Kader, upon attempting to apply for a loan by using the Property as security, discovered about the LHC. Abdul Kader contended that he had never undertaken or authorised any transactions involving the Property with Crest Properties. [11] Crest Properties counterclaimed, among others, that Abdul Kader failed or was negligent in making all payments under Clause 2(i) and

(ii) of the Repurchase Agreement and failed to make full and transparent disclosure of facts and to plead material facts, and had committed fraud or had a modus operandi to wrongfully obtain money. S/N /xYySduIy0iiK2GJwdsPJg [12] Pathmanathan, and Murali, who is a bankrupt, are alleged to have conspired with Crest Properties to influence or force Salinah to hand over the original title deed of the Property to Crest Properties. [13] Harmiza Sary is alleged to have conspired with the other individuals to fraudulently deceive Salinah into believing that she was entering into a moneylending transaction. [14] The Registrar of Titles, Selangor was sued as a nominal Defendant in the event that the court makes orders pertaining to the issuance of a new title for the Property for the benefit of Abdul Kader and his daughter. [15] The Director of Land and Mines, Selangor was also sued as a nominal Defendant in the event the court makes orders pertaining to the removal of the LHC. The Application In Encl. [16] The main provisions of the RC 2012 for consideration are in relation to O. 34, r. 2 RC 2012 as Abdul Kader’s application was made pursuant to O. 34, r. 2(4) RC 2012 and earlier, when the claim and the counterclaim were struck out, it was in the exercise of the Court’s power under O. 34, r. 2(3) RC 2012. [17] The chapeau of O. 34, r. 2(2) and O. 34, rr. 2(3) and (4) RC 2012 is reproduced below for ease of reference: S/N /xYySduIy0iiK2GJwdsPJg “Pre-trial case management when directed by the Court (O. 34, r. 2)

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… …

At a pre-trial case management, the Court may consider any matter including the possibility of settlement of all or any of the issues in the action or proceedings and require the parties to furnish the Court with such information as it thinks fit, and the appropriate orders and directions that should be made to secure the just, expeditious and economical disposal of the action or proceedings, including – …

The Court, having given directions under rule 2(2) or rule 3 may either on its own motion or upon the application of any party, if any party defaults in complying with any such directions, dismiss such action or proceedings or strike out the defence or counterclaim or enter judgment or make such order as it thinks fit.

Any judgment or order made under rule 2(3) may be set aside by the Court, on the application of the party, on such terms, if any, as it thinks just. …”. S/N /xYySduIy0iiK2GJwdsPJg [18] In the AIS and AIRs, Abdul Kader affirmed that he was also authorised by Salinah to depose the affidavits on her behalf. Decision of the Court [19] Firstly, Pathmanathan relied on the Federal Court decision in Stone World Sdn Bhd v Engareh (M) Sdn Bhd [2020] 12 MLJ 237 in submitting that the Striking Out Order is a final order which renders this Court functus officio, and the Court does not have the power to set aside its own final Order. [20] With respect, this submission is misconceived as the RC 2012 expressly provides that any order made under O. 34, r. 2(3) may be set aside by the Court on an application of the party such as the one made by Abdul Kader vide encl. 97. [21] Secondly, in paragraph 25 of the AIS, Abdul Kader averred that he underwent a brain surgery on 20.7.2024 and this, among others, “… telah menjejaskan penglibatan saya dalam persediaan untuk tindakan ini dan kemampuan saya untuk memberikan keterangan berkaitan kes ini semakin merosot dari hari ke hari.”. The neurosurgeon’s letter dated 20.11.2024 and the hospital’s General Discharge Summary, Invoice and Detailed Statement were exhibited in “Exhibit AK-5”. The neurosurgeon informed that Abdul Kader is suffering from Normal Pressure Hydrocephalus, a condition that requires meticulous management and has significantly affected his mobility. S/N /xYySduIy0iiK2GJwdsPJg [22] Although I am sympathetic to Abdul Kader’s current health condition, I am inclined to agree with the submission by Crest Properties that –

there is no medical evidence or opinion in “Exhibit AK-5” that suggests the Plaintiff is unable, due to health reasons, to re-file the suit; and

financial constraints are not a valid justification for reinstatement, especially when there was blatant non-compliance with the directions of the Court. The solicitors representing Abdul Kader and his daughter would be well aware of the former’s medical condition and knowing that I had, at the CM on 24.9.2024, emphasised that this is an old case and the trial must proceed on the dates as fixed by the Court during the CM, and an Unless Order was made, the solicitors should have given serious attention to the directions and ensured full compliance with the same. Allowing financial constraints to excuse non-compliance in the circumstances of this case would set a dangerous precedent, effectively permitting parties to disregard procedural obligations without consequences, thereby undermining the integrity and efficiency of the judicial process. [23] Thirdly, as to the core issue on whether Abdul Kader’s non-compliance with my directions on 24.9.2024 is so grave as to warrant a striking out of his claim, it must first be explained that I was transferred to this Court on 2.9.2024 and I found that in many pre-2024 cases, trial dates have not been fixed and pre-trial documents have not been filed or filed at the directions of the Deputy Registrar (‘DR’) without any subsequent scrutiny by a Judge in a pre-trial CM. S/N /xYySduIy0iiK2GJwdsPJg [24] In this case, out of the many dates that were fixed, the matter was called up before the previous Judge on seven occasions (see the

Notes of Proceedings (‘NoP’) on 24.2.2023, 9.8.2023, 21.3.2023,

3.2023, 17.4.2023, 22.5.2023 and 26.2.2024). However, as at 2.9.2024, no trial dates have been fixed and the pre-trial documents had been filed following the directions given by the DR on 3.1.2024 but have not been approved by a Judge. The NoP on 26.2.2024 shows that only the Bundle of Pleadings (‘BoP’) had been filed while the rest of the pre-trial documents remain pending despite the DR’s directions on 3.1.2024. [25] Therefore, when this case first came up for CM before me on 24.9.2024, I was at liberty to review the entire pre-trial documents to ensure that they have been properly prepared for the trial which I had fixed to begin on 6.1.2025. Ms. Sheena Stephanie Sebastian appeared for the Plaintiff on 24.9.2024 and my directions were as follows:

at the next CM, Ms. Sheena is to –

inform about the clients’ instructions as to the case against Harmiza Sary as the cause papers were served on her by substituted service on 24.10.2023 and no further application was made by Abdul Kader and Salinah against

(ii) submit a table of the cause papers and a chart showing the relationship between all the parties; and

(iii) re-file the BoP in the national language and in English in three volumes according to Abdul Kader’s claim and Crest S/N /xYySduIy0iiK2GJwdsPJg Properties’ counterclaim; Abdul Kader’s and Salinah’s counterclaim against Crest Properties; and Abdul Kader’s and Salinah’s claim against Murali and Harmiza Sary as co-conspirators. This is because the headings for some of Abdul Kader’s pleadings in the BoP which was filed on 14.2.2024 (encl. 75) are wrong;

English translations to be prepared for all pleadings and Case Summary (‘CS’), Agreed Facts (‘AF’), Common Chronology of

the CS are to be re-filed by each party before the next CM date as the earlier CS was filed jointly by all the parties;

each party’s List of Witnesses (‘LW’) is to be filed or re-filed in the national language before the next CM with the particulars as directed, namely full name, IC No., current residential address, current designation and a brief description of the evidence that will be given by the witness; and

to revise the AF, CoE and ITBT in English and the drafts will be discussed at the next CM. After the Court approves the drafts, the AF, CoE and ITBT in the national language and English must be signed by all solicitors before they are filed. [26] Contrary to the submission by Mr. David Samuel for the application in encl. 97, an Unless Order was made on 24.9.2024 i.e. failure to comply with the directions of the Court will result in the claim and counterclaims to be struck out as the trial was due to start on 6.1.2025. S/N /xYySduIy0iiK2GJwdsPJg [27] Ms Sheena had informed the Court that they are still liaising with the Chemistry Department on the handwriting expert and that no report has been prepared. To me, this was not a satisfactory state of affairs considering that the Writ and Statement of Claim were filed on 26.11.2022. Thus, I directed that if Abdul Kader intends to produce a report by the handwriting expert for the trial, the report must be ready by the next CM date. [28] I believe that the directions I gave on 24.9.2024 were clear and unambiguous. None of the counsels who appeared on that date had sought any clarification regarding the directions. Abdul Kader’s solicitors did not later write to the Court to request for clarification or utilise any other available channels of communication with the Court. Any alleged “confusion” was solely due to the solicitors’ lack of diligence. [29] On 5.11.2024, Mr. David Samuel appeared for Abdul Kader and Salinah and the learned counsel informed that Ms. Sheena has left the firm. Based on Mr. David Samuel's answers to my questions (see the NoP for that date), it is obvious that the learned counsel was not aware of the directions given on 24.9.2024 because Ms. Sheena did not inform anyone in the law firm of the same. It was submitted that whatever issues the firm had with Ms. Sheena are internal matters and are irrelevant. However, the solicitors appear oblivious to the fact that it was the communication issues within the Plaintiff’s legal team that led to there being non-compliance with the directions of the Court. [30] It was additionally argued for Abdul Kader that non-compliance with the directions of the Court was merely minor procedural non-compliance. I have previously set out the directions given on 24.9.2024 S/N /xYySduIy0iiK2GJwdsPJg and these included for the AF and ITBT to be revised so that these important pre-trial documents can be discussed at the CM on 5.11.2024 with a view of approving the same in time for the trial. The non-compliance in this case is not, by any measure, minor in nature. [31] As regards Mr. David Samuel’s submission that the striking out of the action was not solely the result of Abdul Kader’s non-compliance with my directions on 24.9.2024, but was also significantly contributed by the Defendants’ failures to comply with the same directions, this is indeed the case and that was why Crest Properties’ counterclaim was also struck out. In paragraph 16 of the AIR, Crest Properties averred that it suffers no prejudice from the Striking Out Order because it can still file a new or separate action based on the counterclaim which had been struck out. By the date of its Written Submission on 12.2.2025, Crest Properties had already filed a new action. Conclusion [32] Based on the foregoing reasons, I am of the considered view that, in the circumstances of this case, the Unless Order made was correctly enforced and the suit was rightfully struck out under O. 34, r. 2(3) RC

Furthermore, I was not persuaded to set aside the Striking Out Order on the grounds as put forth by Abdul Kader. Compliance with pre-trial CM directions is essential for the just, expeditious and economical disposal of proceedings, especially in a case like this which has been ageing in the court since November 2022. S/N /xYySduIy0iiK2GJwdsPJg [33] Abdul Kader was given liberty to file the suit afresh and this gives him and his solicitors the chance to review the pleadings and the ITBT as raised by the Court at the CM on 24.9.2024. [34] The application in encl. 97 was thus dismissed with no order as to costs. Dated: 28 March 2025 (ALIZA SULAIMAN) Judge High Court in Malaya (NCvC2) Kuala Lumpur Counsels/ Solicitors (in the original action): For the Plaintiff: David Samuel Messrs. Chambers of Firdaus Advocates & Solicitors Unit J-5-1, 5th Floor Parklane Commercial Hub Jalan SS 7/26 47301 Petaling Jaya Selangor For the 1st Defendant: Tersaim Lall a/l Sadhu Ram Messrs. Mann & Associates Advocates & Solicitors 14, Jalan PJS 9/3A Bandar Sunway 46150 Petaling Jaya Selangor S/N /xYySduIy0iiK2GJwdsPJg For the 2nd Defendant: Mior Nor Haidir b. Suhaimi Messrs. Haidir & Co Advocates & Solicitors Unit 12-02 & 12-03, Plaza Azalea Persiaran Bandaraya, Seksyen 14 40000 Shah Alam Selangor For the 3rd and 4th Defendants: Muhammad Shah Faris Bin Kamarulzaman Pejabat Kamar Penasihat Undang-Undang Negeri Selangor Tingkat 4, Podium Utara Bangunan Sultan Salahuddin Abdul Aziz Shah 40576 Shah Alam Selangor S/N /xYySduIy0iiK2GJwdsPJg