Dayanthra Rao A/L Sannasy v Ramaa Shri A/P Suberamaniam (BA-22NCvC-175-04/2024)

RAMAA SHRI A/P SUBERAMANIAM (No. K/P: 820216-08-5618)

DEV ANAND A/L SANNASY (No. K/P: 800428-08-5531) … DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT Introduction [1] Enclosure 69 is the Notice of Application dated 17.11.2025 by the 1st Defendant for the following orders: -

That the Originating Summons No. BA-24NCvC-2244- 09/2025 (“OS 2244”) be heard separately and disposed 25/05/2026 09:11:57 BA-22NCvC-175-04/2024 Kand. 127 S/N gkOwrZvakihSTrqgaS9Wg first before the trial of Civil Suit No. BA-22NCvC-175- 04/2024 (“Suit 175”);

In the alternative, Suit 175 be stayed until the disposal of OS 2244. [2] After perusal of the cause papers and upon hearing submissions by the counsels, I have dismissed Enclosure 69 based on the reasons which I shall explain hereafter. Background facts [3] The 1st Defendant is the registered owner of A39, Bukit Ruil Bungalow, Jalan Pekeliling, 39000 Tanah Rata, Cameron Highlands (“the Property”). [4] The 1st Defendant is married to the 2nd Defendant. The 2nd Defendant and the Plaintiff are brothers. [5] In 2022, Shell Malaysia Limited (“Shell”) wanted to auction off the Property. However, Shell wanted to sell the Property only to their employees. The 1st Defendant is an employee of Shell and qualifies to bid for the Property. [6] The 1st Defendant made a bid for the Property and won. The purchase price was RM2,310,000.00 (“the Purchase Price”). On 28.10.2022, a sale and purchase agreement was executed by the 1st Defendant. S/N gkOwrZvakihSTrqgaS9Wg [7] The Plaintiff says that the Purchase Price was not paid by the 1st Defendant solely. Instead, the Purchase Price has been contributed by the Plaintiff, the 1st Defendant and the 2nd Defendant in the following proportions: - Contributors Amount Plaintiff RM1,193,200.00 1st Defendant RM325,000.00 2nd Defendant RM791,800.00 [8] The Plaintiff has taken possession of the Property and has converted the Property into a homestay. However, the 1st Defendant is now trying to sell the Property to third parties. [9] The Plaintiff has commenced Suit 175 for a declaration that he is the half-share beneficial owner of the Property and that the 1st Defendant is holding the Property on trust for the Plaintiff. [10] The 1st Defendant denies the Plaintiff’s allegations and contends that the Plaintiff and the 2nd Defendant took possession of the Property without her knowledge and approval. S/N gkOwrZvakihSTrqgaS9Wg [11] The 1st Defendant then commenced OS 2244 in the Kuantan High Court pursuant to Order 89 of the Rules of Court 2012 for summary proceedings for possession of land. [12] However, the Plaintiff and the 2nd Defendant filed an application to consolidate OS 2244 with Suit 175. The Kuantan High Court allowed the consolidation of OS 2244 and Suit 175 on 18.9.2025 (“the Consolidation Order”) [13] Upon OS 2244 and Suit 175 being consolidated in the Shah Alam High Court, the 1st Defendant proceeded to file Enclosure 69 for OS 2244 to be heard separately and disposed before Suit 175. Issues to be determined [14] The issues to be determined by this Court are: -

Whether the Consolidation Order make directions as to how OS 2244 and Suit 175 are to be disposed;

Whether the Consolidation Order directs for the automatic conversion of the originating summons to a writ;

Whether OS 2244 and Suit 175 should be heard together or separately. S/N gkOwrZvakihSTrqgaS9Wg Summary of the 1st Defendant’s case (in supporting Enclosure 69) [15] The 1st Defendant submits that Consolidation Order only allows both suits to be heard by the same judge. However, the Consolidation Order do not go on to specify for proceedings to be heard concurrently or simultaneously. [16] The 1st Defendant argues that the court still retains the power and discretion to control how the suits are to be disposed pursuant to Order 34 rule 2 of the Rules of Court 2012. [17] The 1st Defendant also contends that OS 2244 and Suit 175 have different modes of hearing. The Consolidation Order does not automatically convert the originating summons in OS 2244 into a writ action. [18] The 1st Defendant also points out that OS 2244 is made pursuant to Order 89 of the Rules of Court 2012 for summary proceedings for possession of land. Therefore, the 1st Defendant argues that although OS 2244 and Suit 175 share the same facts, they have different legal issues and nature of claim. [19] OS 2244 and Suit 175 also continue to retain their identity as originating summons and writ despite being consolidated. Therefore, it is inconvenient, confusing and procedurally unsound to hear and dispose both matters in a single trial. S/N gkOwrZvakihSTrqgaS9Wg [20] The 1st Defendant also did not appeal against the Consolidation Order. However, this does not mean that the 1st Defendant had also agreed to the method of disposal and sequencing. The issue of sequenced hearing and modes were never litigated in the hearing of the Consolidation Order. Therefore, the issue of res judicata does not arise. Summary of the Plaintiff and 2nd Defendant’s case (in opposing Enclosure 69) [21] Both the Plaintiff and the 2nd Defendant had opposed to Enclosure 69 and had filed their respective affidavits and written submissions. However, as their submissions and arguments are similar, a summary of both the Plaintiff and the 2nd Defendant’s case are considered collectively here. [22] The Plaintiff and the 2nd Defendant submit that Enclosure 69 is an abuse of process. This is because similar submissions and arguments have already been raised by the 1st Defendant in the Kuantan High Court but was ultimately rejected. [23] There was also no appeal lodged by the 1st Defendant in respect of the Consolidation Order. As such, res judicata would apply. [24] The Plaintiff and the 2nd Defendant also pointed out that Suit 175 was instituted much earlier than OS 2244. The reliefs S/N gkOwrZvakihSTrqgaS9Wg sought in OS 2244 constitute the very substratum of the dispute ventilated in Suit 175. Findings by the Court [25] Generally, when suits are consolidated, they are heard together. However, I agree that the Consolidation Order does not specifically order or make direction as to how both the suits are to be disposed. I also agree that the Consolidation Order does not order for the automatic conversion of the originating summons to the writ. [26] I agree that this court now retains the control over how both the suits are to be disposed. [27] I do not accept the Plaintiff and the 2nd Defendant’s arguments of res judicata. The issue of res judicata does not arise as the issue of sequenced hearing and modes were never litigated in the hearing of the Consolidation Order. [28] However, having read both the originating summons in OS 2244 and the statement of claim in Suit 175, I find it difficult to order for both the matter to be heard separately. This is because the facts and the parties are the same. The subject matter in dispute is also similar. [29] The 1st Defendant had relied on the case of MTD Capital Bhd v Tan Sri Dr. Azmil Khalili bin Khalid [2020] 8 MLJ 252, where S/N gkOwrZvakihSTrqgaS9Wg the court has recognised the fundamental procedural difference between an originating summons and a writ action and held that consolidating them would not save time and costs. [30] However, I disagree that the principles in MTD Capital Bhd v Tan Sri Dr. Azmil Khalili bin Khalid would apply to the facts here. The facts in both OS 2244 and Suit 175 are identical. [31] The nature of the claim in OS 2244 and Suit 175 is different because of the conflicting claims by the Plaintiff and the 1st Defendant. The 1st Defendant is claiming for the recovery of the Property; whereas the Plaintiff is asserting that the 1st Defendant is holding the Property on trust for the Plaintiff. However, ultimately the dispute is about the Property. [32] Although I agree that the originating summons can be disposed faster, I foresee the potential difficulties in doing so. If OS 2244 is to be heard first, and to be followed by Suit 175, any decision made by this court in respect of OS 2244 may be appealed against by the losing party and a stay may be granted. This would complicate the proceedings for Suit 175, which is slated to be heard later. [33] The 1st Defendant had argued that hearing both suits will render OS 2244 irrelevant. However, I think the same argument would also apply the other way around. Ordering the hearing of the originating summons would also render the writ action irrelevant. S/N gkOwrZvakihSTrqgaS9Wg [34] Finally, in reaching this decision, I had also taken into account that Suit 175 was instituted earlier than OS 2244. Conclusion [35] Accordingly, for the reasons above, Enclosure 69 is dismissed with costs at RM3,000.00 to the Plaintiff and RM3,000.00 to the 2nd Defendant. Dated the 25th May 2026. (SEOW HOCK PENG) JUDICIAL COMMISSIONER HIGH COURT OF MALAYA SHAH ALAM, SELANGOR Counsel: For the Plaintiff : Manian K. Marappan Ishvinderjeet Singh a/l Ranjit Singh (Messrs Manian K. Marappan & Co.) For the 1st Defendant : Hang Qiu Min Richard Tie Sing Wan (Messrs Josephine, L K Chow & Co.) S/N gkOwrZvakihSTrqgaS9Wg For the 2nd Defendant: Cindy Chow (Messrs R K Menon & Co.)

MTD Capital Bhd v Tan Sri Dr. Azmil Khalili bin Khalid [2020] 8 MLJ 252. S/N gkOwrZvakihSTrqgaS9Wg