Expro Group Malaysia Sdn Bhd v Lembaga Kemajuan Tanah Persekutuan (Felda) (WA-24NCvC-1770-04/2026)

This is my judgment on the Plaintiff's Originating Summons ("OS") seeking declaratory relief under Sections 41, 50, 51 and 52 of the Specific Relief Act 1950 ("SRA 1950") , arising from a tenancy dispute concerning Level 23, Menara FELDA, Kuala Lumpur.

The Plaintiff seeks declarations relating to the validity, effect, and enforcement of the Tenancy Agreement dated 26.1.2022, including issues of alleged repudiation, wrongful termination, and the legal status of certain notices issued by the Defendant.

The Defendant resists the OS, contending that: o the OS procedure is inappropriate; o the declarations sought are hypothetical, academic, or lacking a proper contradictor; o the Plaintiff has alternative remedies in law; o the OS constitutes an abuse of process.

Having considered the affidavits, submissions, and the authorities cited by both parties, I now deliver my decision.

The Plaintiff, Expro Group Malaysia Sdn Bhd, is the tenant of the premises located at Level 23, Menara FELDA, Platinum Park, Kuala Lumpur, pursuant to a Tenancy Agreement dated 26.1.2022 ("the Tenancy Agreement"). The Defendant, Federal Land Development Authority (FELDA), is the landlord and owner of the said premises.

Under the Tenancy Agreement, the tenancy was structured into fixed terms. Term 1 ran from 1.7.2022 to 30.6.2025, and the Agreement expressly provided for an automatic renewal for Term 2, running from 1.7.2025 to 30.6.2028, on the same rental rate of RM3.50 per sq ft per month (RM53,077.50). The Agreement further stipulates that rental for Term 3 and Term 4 shall be mutually agreed, subject to a maximum increase of 10%.

Prior to the commencement of Term 2, the Plaintiff issued a renewal notice dated 15.4.2025, confirming continuation of the tenancy in accordance with the Agreement. Despite this, FELDA issued a letter dated 22.7.2025 proposing a substantial unilateral rental increase to RM5.00 psf (2025) and RM6.50 psf (2026), representing a 42% 80% increase.

The Plaintiff rejected the proposed increase on 11.9.2025, insisting on adherence to the contractual rental.

On 26.2.2026, FELDA issued a Notice of Termination, expressly invoking Section 9.03 of the Tenancy Agreement, and requiring the Plaintiff to vacate the premises by 25.5.2026. The Plaintiff disputed the validity of the Notice, contending that Section 9.03 confers a right of termination solely upon the Tenant, not the Landlord.

The parties met on 12.3.2026, but FELDA refused to withdraw the Notice, stating that the existing rental was commercially unfavourable based on an independent valuation obtained from the Jabatan Penilaian dan Perkhidmatan Harta. Negotiations failed, and FELDA maintained its position.

Throughout the disputed period, FELDA continued issuing rental invoices at the contractual rate of RM53,077.50, and the Plaintiff continued paying them. It is common ground that the Plaintiff is fully up to date with rental payments.

The Plaintiff thereafter filed Originating Summons (Enclosure 1) seeking declaratory and injunctive reliefs, including declarations that the Tenancy Agreement remains valid, that the rental cannot be unilaterally increased, and that the Notice of Termination is invalid. Enclosure 4 (injunction) was subsequently resolved by consent, leaving only Enclosure 1 for determination.

The OS raises three principal issues:

Whether the Plaintiff has satisfied the statutory and procedural requirements for declaratory relief under s.41 SRA 1950 and O.15 r.16 ROC 2012.

(ii) Whether the declarations sought are justiciable, real, and not hypothetical or academic.

(iii) Whether the OS procedure is appropriate given the nature of the dispute and the availability of alternative remedies. Applicable Legal Principles Section 41 Specific Relief Act 1950

S.41 SRA 1950 allows "any person entitled to any legal character, or to any right as to any property" to sue for a declaration against "any person denying, or interested to deny" that title or right, and expressly provides that the plaintiff "need not in that suit ask for any further relief".

However, the proviso bars the court from granting such declaration "where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so." This creates a two-stage threshold: o Substantive entitlement: the plaintiff must show a legal character or proprietary right being denied or threatened. o Procedural restraint: if more appropriate, concrete relief (e.g. specific performance, injunction, damages) is available and deliberately omitted, the court must refuse a bare declaration. Order 15 rule 16 Rules of Court 2012

O.15 r.16 ROC (successor to O.25 r.5 RHC 1957/O.15 r.16 RHC 1980) provides that no proceeding is objectionable merely because "a merely declaratory judgment or order is sought", and empowers the court to make "binding declarations of right whether or not consequential relief is or could be claimed."

The rule opens the door procedurally but does not compel the court to grant declarations. The jurisdiction remains discretionary, to be exercised consistently with s.41 SRA 1950 and with established principles on justiciability, utility and abuse of process. Case authorities and their implications

Sabu Development Sdn Bhd v Kelik Bayel [2007] 9 CLJ 475

In Sabu Development (supra), the developer sought a declaration that the Consumer Claims Tribunal (TCC) would act ultra vires if it heard certain "real property" disputes. The High Court dismissed the originating summons, emphasising that all necessary and interested parties must be before the court: "The necessary and interested parties were not named herein. The TCC must be made a party and/or be represented in these proceedings. Any decision given without the hearing of the tribunal would be in breach of the rules of natural justice."

Key points: - Proper parties: Where the declaration affects a statutory body's jurisdiction, that body (or the Government/AG) is a necessary party. - Natural justice: A declaration that constrains a tribunal's powers cannot be made behind its back. - Interaction with s.41 SRA: The court held that a literal reading of O.15 r.16 cannot override s.41 SRA 1950; the statutory requirements for declaratory relief must be satisfied first.

Applied to our instant case, any declaration touching third-party rights (e.g. building owner, regulators, or other occupiers) would require their presence or representation. A tenant-landlord dispute is more contained, but if the Plaintiff's relief indirectly affects other entities, non-joinder may be fatal.

Karpal Singh v Sultan of Selangor [1987] 2 CLJ 342; [1987] CLJ (Rep) 686

In Karpal Singh (supra), the plaintiff sought a declaration that a public statement by the Sultan on pardons for drug traffickers violated Article 42 of the Federal Constitution. The originating summons was struck out as frivolous, vexatious and an abuse of process. The court distilled core principles of declaratory relief: "It is fundamental principle that declaration will not be made if the application for it is embarrassing or the declarations can serve no useful purpose."

And, adopting a textbook on Declaratory Orders, 2nd Edn., by P.W. Young, on the conditions for declaratory orders and has submitted that one of the conditions to be satisfied is that (a) there must exist a controversy between the parties; (b) the proceedings must involve a 'right'; (c) the proceedings must be brought by a person who has a proper or tangible interest in obtaining the order; (d) the controversy must be subject to the Court's jurisdiction; and (e) it must not be merely of academic interest, hypothetical or one whose resolution would be of no practical utility. "The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, someone presently existing who has a true interest to oppose the declaration sought." (The Russian Commercial & Industrial Bank v. British Bank for Foreign Trade [1921] 2 AC 438 at 448 per Lord Dunedin).

The court further held that the issue clemency was non-justiciable, hypothetical and barred by Article 181(2), and that the plaintiff lacked locus standi.

For our instant case, Karpal Singh's case underscores: - The court will refuse declarations where: o The dispute is hypothetical (e.g. future events that may never occur). o The declaration would be academic or of no practical utility. o The plaintiff lacks a real, personal legal right at stake. - The court's power is confined to legal or equitable rights, not political or moral questions.

Thus, the Plaintiff must show a concrete, present controversy under the Tenancy Agreement e.g. validity of termination, rent obligations, or rights of occupation not merely a theoretical or strategic question.

Cheah Theam Kheng v City Centre Sdn Bhd (in liquidation) & other appeals [2012] 1 MLJ 761

In Cheah Theam Kheng (supra), the Federal Court revisited declaratory relief in the context of liquidation and competing claims. While the enclosure only gives the index, the case is widely cited for the proposition that declaratory relief is discretionary and must be grounded in a real controversy affecting legal rights, not used as a device to bypass proper remedial routes. The Federal Court emphasised: - Real controversy: There must be a genuine dispute over legal rights or status. - Appropriate forum and procedure: Declaratory proceedings cannot be used to circumvent insolvency or statutory regimes. - Judicial restraint: Courts should avoid declarations that cut across complex factual or statutory frameworks without full ventilation.

In the said case the court held: [105] We categorically say that the liquidator cannot blow hot and cold to suit him whenever he feels like it. He cannot approbate and reprobate in the same breath. On the one hand, he claims that the High Court order dated 26 July 2001 overrides or displaces a statute which render the said order invalid and yet he has the audacity to continue to act as a liquidator by virtue of the said order. In the words of Sir Nicolas Browne-Wilkinson VC in Express Newspapers plc v News (UK) Ltd and others [1990] 3 All ER 376, at pp 383-384: There is a principle of law of general application that it is not possible to approbate and reprobate. That means you are not allowed to blow hot and cold in the attitude that you adopt. A man cannot adopt two inconsistent attitudes towards another: he must elect between them and, having elected to adopt one stance, cannot thereafter be permitted to go back and adopt an inconsistent stance

For our instant case, Cheah Theam Kheng (supra) supports the view that declaratory relief is not automatic even where s.41 and O.15 r.16 are satisfied; the court must be satisfied that a declaration is the appropriate and proportionate remedy in the tenancy context.

Maybank Islamic Berhad v Golden Base Construction Sdn Bhd & Ors [2019] MLJU 1159, the High Court refused summary judgment and declined to strike out a counterclaim in a complex Islamic financing dispute. The judgment records that the court was dealing with factual disputes requiring oral evidence: "This judgement provides reasons for the dismissal of both the applications to enter summary judgment and to strike out the defendants' counterclaim."

While the case is not purely about declaratory relief, it illustrates a crucial point: where material facts are disputed, and credibility or detailed evidence is required, the court will be slow to dispose of matters on paper or to grant bare declarations.

Transposed to our instant case: - If the Plaintiff's declaratory relief depends on contested factual matrices—e.g. whether FELDA breached covenants, whether notices were properly served, whether there were agreed variations—the court may insist on oral evidence and may decline to grant declarations at the interlocutory stage. - Declaratory proceedings are best suited to questions of construction or jurisdiction, not heavily fact-laden disputes.

Whether the dispute is real and justiciable

The Plaintiff characterises FELDA's conduct as a repudiatory attempt to escape a commercially unfavourable bargain and seeks declaratory reliefs to "clarify" the legal position. That framing suggests a pure question of contractual interpretation.

However, the evidential record in the affidavits demonstrates that the controversy is not confined to construction of the Tenancy Agreement; it is intertwined with contested facts, disputed motivations, and competing narratives.

The affidavits disclose substantial factual disputes, including: - whether the Notice of Termination dated 26-2-2026 was validly issued pursuant to any contractual provision; - whether the Plaintiff had breached any term of the tenancy, including FELDA's allegation of outstanding gymnasium charges; - whether FELDA's conduct in issuing invoices at RM53,077.50 amounts to affirmation, waiver, or election; - whether the tenancy was lawfully terminated or whether FELDA acted in bad faith in attempting to revise the rental based on the valuation report.

These are not peripheral matters. They go to the core of the parties' rights, obligations, and conduct. Such disputes are not pure questions of law suitable for determination on affidavit. They require: - cross-examination of witnesses on the chronology of negotiations, the alleged valuation, and the parties' intentions; - credibility assessment, particularly where the Plaintiff alleges bad faith and FELDA denies it; - factual findings on whether the Plaintiff was in breach, whether FELDA's invoicing conduct is approbatory-reprobatory, and whether the Notice of Termination was a pretext.

These are precisely the types of issues that cannot be resolved on paper without viva voce evidence. The principle is well-established.

In Maybank Islamic Berhad (supra), the High Court held that declaratory proceedings are inappropriate where the dispute is fact-laden and credibility-dependent. Where material facts are contested, the OS procedure is unsuitable because the Court cannot fairly determine the controversy without oral evidence.

Applying that principle, the present Originating Summons is procedurally unsuitable. The dispute is real, but it is not purely legal. It is a mixed question of fact and law requiring a writ action, pleadings, discovery, and cross-examination. The OS mechanism under O.15 r.16 is not designed to adjudicate contested factual matrices of this nature.

Whether the declarations are hypothetical or academic

The Plaintiff characterises FELDA's conduct as a repudiation of the tenancy and frames the OS as a vehicle to "clarify" the parties' legal position. Stripped of rhetoric, however, the relief sought is not confined to an abstract construction of the Tenancy Agreement; it is inextricably bound up with whether FELDA was entitled, on the facts, to issue the impugned notices, to treat the tenancy as at an end, and to demand vacant possession. That is a merits-laden dispute about what actually happened between landlord and tenant, not a sterile question of law.

The competing affidavits lay bare a matrix of contested facts: whether FELDA's notices complied with the contractual and statutory regime; whether the Plaintiff was itself in breach (and, if so, in what respects and to what extent); whether there were rent arrears and how they should properly be computed; and whether, in consequence, FELDA's termination was lawful or itself a wrongful repudiation. Each of these issues turns on evidence, context and commercial practice, not on a simple reading of a clause in isolation.

Those matters cannot be fairly resolved on affidavit alone. They call for the forensic tools of a writ action-cross-examination of witnesses, testing of credibility, and a structured evaluation of contemporaneous documents before the court can safely make primary findings of fact. To attempt to short-circuit that process through an originating summons for declaratory relief would be to invite the court to pronounce on disputed facts without the benefit of a proper evidential platform.

This is precisely the mischief identified in Maybank Islamic Berhad (supra), where the High Court declined to entertain summary and striking-out applications in the face of substantial factual controversy.

The court recognised that declaratory or summary processes are ill-suited where the real battleground lies in contested facts requiring oral evidence and credibility assessments. The present OS suffers from the same structural defect: it seeks declarations in a factual vacuum.

In these circumstances, the dispute is not a "pure" question of law amenable to determination on affidavit. It is a live, fact-sensitive controversy which must be tried in the ordinary way.

The originating summons procedure is therefore unsuitable, and the attempt to shoehorn a fact-heavy tenancy dispute into a declaratory OS is, in substance, a misuse of the Court's declaratory jurisdiction akin to forcing a complex factual controversy into a procedural framework designed only for clear, uncontested questions of law; the OS simply lacks the structural capacity to accommodate the evidential burdens this dispute demands.

Several of the declarations pleaded are not directed at crystallised rights or existing wrongs, but at future conduct and prospective consequences for example, how FELDA may or may not exercise its rights going forward, or what legal consequences should attach to hypothetical scenarios of non-performance. They invite the court to speak in the abstract, untethered from concrete facts that have actually occurred.

In Karpal Singh (supra), Abdul Hamid Omar CJ (Malaya) underscored that declaratory relief will not be granted where the facts are hypothetical, speculative or merely of academic interest. The court stressed that there must be a real controversy, involving a real right, between parties with a genuine and present interest in the outcome; the question must be "real and not theoretical", and there must be a "proper contradictor" with a true interest to oppose the declaration.

Viewed through that lens, the Plaintiff's prayers do not seek to resolve a present legal impasse such as whether a specific termination already effected is valid but rather to secure advance judicial endorsement of how the tenancy should be understood in future and what consequences should follow from possible future acts. That is to ask the court to advise, not to adjudicate; to pronounce on hypothetical states of affairs, not to determine existing rights on established facts.

Such use of s.41 SRA 1950 and O.15 r.16 ROC 2012 is impermissible. Declaratory jurisdiction is not a licence for parties to obtain advisory opinions or to litigate theoretical positions divorced from concrete disputes.

Where, as here, the declarations are framed in prospective, contingent terms and do not resolve a present, justiciable controversy, the court's discretion is engaged against granting them, and the OS, to that extent, is properly characterised as academic and an abuse of the declaratory process.

Whether all necessary parties are before the Court

The scope of the declarations sought also exposes a structural defect in the OS. The Plaintiff seeks pronouncements that will directly affect: - FELDA as landlord: its rights of enforcement, termination, and control over the premises. - The building manager's obligations: including access, services, and operational control within Menara FELDA. - Third-party contractors and service providers: whose performance and rights may be impacted by any declaration on access, fit-out, or operations. - Regulatory compliance: including fire, safety, and other statutory requirements that hinge on how the premises are managed and occupied.

Yet, none of these actors—building manager, contractors, or relevant regulatory bodies are before the court. The OS is framed solely between the Plaintiff and FELDA, while seeking relief that would, in practical terms, bind or affect parties who have had no opportunity to be heard and who may hold independent rights and obligations under separate contracts or statutory regimes.

In Sabu Development (supra), Hamid Sultan JC dismissed an originating summons where the statutory tribunal whose jurisdiction was impugned was not joined, holding that "the necessary and interested parties were not named" and that any decision without hearing the tribunal would breach natural justice. The court emphasised that declaratory relief is discretionary and that the sine qua non for its exercise is the presence of all necessary and interested parties, as contemplated by O.15 r.16.

The same structural flaw is present here. The Plaintiff seeks to reshape a complex tenancy ecosystem—landlord, tenant, building manager, contractors, regulators through declarations obtained in proceedings where only one counterpart (FELDA) is joined. That omission is not a mere technicality; it goes to fairness, completeness, and the court's ability to grant effective, just relief.

On Sabu Development (supra) principles, the failure to join necessary parties renders the OS procedurally defective and weighs heavily against the grant of any declaratory relief.

Whether alternative remedies exist

The materials before the Court demonstrate that the Plaintiff is not without adequate and efficacious remedies at law. The dispute between the parties centred on the validity of FELDA's Notice of Termination, the proper construction of the Tenancy Agreement, and the parties' respective performance falls squarely within the domain of a conventional writ action.

The Plaintiff could have sought: - damages for alleged wrongful termination; - specific performance compelling FELDA's adherence to the Tenancy Agreement; - injunctive relief to preserve possession pending trial; - or even a full trial on breach, with oral evidence and cross-examination to resolve contested facts.

These remedies are not theoretical. They are directly available and, on the Plaintiff's own case, necessary to resolve the factual controversies it has raised. Section 41 of the Specific Relief Act 1950 expressly prohibits the grant of declaratory relief where the plaintiff, "being able to seek further relief... omits to do so."

The proviso is not a mere procedural caution—it is a substantive bar designed to prevent litigants from circumventing the ordinary trial process by seeking declarations in place of the fuller remedies the law provides.

The Plaintiff's choice to proceed by Originating Summons, while consciously omitting the further relief that is both available and appropriate, places this application squarely within the statutory prohibition.

The OS mechanism is not intended to replace a writ where factual disputes, credibility assessments, and contested breaches lie at the heart of the controversy. As the authorities emphasise, declaratory relief is not a shortcut to avoid the evidential burdens of a full action. The Plaintiff's omission of alternative relief is therefore fatal: the OS is not merely inappropriate—it is statutorily barred under s.41 SRA 1950.

Whether the OS constitutes an abuse of process

The present Originating Summons does not merely seek clarification of a discrete point of contractual construction. Instead, it attempts to pre-empt factual findings, circumvent the ordinary trial process, and secure broad declaratory pronouncements without the Plaintiff first proving the underlying breaches or factual predicates.

The affidavits filed by both parties reveal a contested factual matrix: FELDA asserts a valuation-driven renegotiation process, alleged indebtedness for gymnasium charges, and failed commercial discussions; the Plaintiff asserts unilateral rent escalation, bad faith, and wrongful reliance on Clause 9.03. These are live factual controversies, not matters suitable for summary declaratory disposal.

This is precisely the type of misuse of declaratory proceedings condemned by the Court of Appeal in Cheah Theam Kheng (supra).

In that case, the Court held that declaratory relief cannot be used as a shortcut to avoid proving facts, nor as a mechanism to obtain strategic legal advantage without undergoing the evidential rigour of a full trial. The Court emphasised that declaratory proceedings must not become a vehicle for parties to "blow hot and cold" or to approbate and reprobate, especially where the factual substratum is disputed and requires proper testing through cross-examination.

Thus, as in our instant case, the Plaintiff's attempt to secure declarations that effectively regulate the entire future tenancy while factual disputes remain unresolved is analogous to the abuse identified in Cheah Theam Kheng (supra).

The OS therefore bears the hallmarks of an abuse of process: it seeks to bypass the evidential safeguards of a writ action, obtain dispositive declarations on contested facts, and freeze the Defendant's future contractual rights without the Court first determining the factual foundation of those rights.

In light of the authorities and the factual disputes evident from the enclosures, I find that the Plaintiff's use of the OS procedure is improper and constitutes an abuse of the Court's declaratory jurisdiction.

Having considered the cause papers, the competing affidavits, and the authorities cited by both parties, I make the following findings:

The Originating Summons is structurally unsuited to the dispute before the Court. The affidavits reveal material factual controversies including the validity of the Notice of Termination, alleged breaches, arrears, and the parties' subsequent conduct which cannot be resolved without oral evidence. Declaratory relief cannot be used to bypass those factual determinations.

(ii) Several of the declarations sought are framed in prospective or contingent terms. They do not address a crystallised legal conflict but instead seek judicial endorsement of future conduct and hypothetical consequences. On settled principle, such declarations are academic and lack a proper contradictor.

(iii) The reliefs sought would, in practical effect, bind or constrain actors beyond FELDA, including building management and operational contractors. These parties are not before the Court. Their absence offends the requirement that all necessary and interested parties be present in proceedings seeking declaratory relief.

(iv) The Plaintiff has adequate alternative remedies available through a writ action including damages, specific performance, and injunctive relief which are more appropriate for resolving the factual and contractual issues raised. Section 41 of the Specific Relief Act 1950 prohibits declaratory relief where such further relief is available but omitted.

Taken together, the Plaintiff's use of the OS procedure operates to circumvent the evidential safeguards of a full trial and to obtain dispositive declarations without proving the underlying factual foundation. This is inconsistent with the proper use of declaratory jurisdiction and constitutes an abuse of process.

For the reasons set out in the preceding analysis and findings, and having regard to the factual matrix and authorities cited, I make the following orders:

The Plaintiff's Originating Summons is dismissed in its entirety; the Court having found that the declaratory route is procedurally and substantively inappropriate for the disputes raised.

Costs are awarded to the Defendant in the sum of RM6,000.00, reflecting the nature of the proceedings and the fact that the OS has been found to be an improper vehicle for the relief sought. I hereby order so. Date: 24.7.2026 NIXON ANAK KENNEDY KUMBONG Judicial Commissioner High Court of Malaya Kuala Lumpur PARTIES For the Plaintiff: Solicitor: Ooi Chih-Wen Messrs Wong & Partners Level 21, The Gardens South Tower, Mid Valley City, Lingkaran Syed Putra, 59200 Kuala Lumpur. For the Defendant: Solicitor: Vimalan Ramanathan Messrs Edorra Arfah Khandhar No.13A-10, Duplex Office Plaza Azalea Persiaran Bandaraya, Seksyen 14 40000 Shah Alam, Selangor Darul Ehsan