Keah Kean Tong v Rathidevi a/p Nadarajan (BA-24NCVC-486-03/2023)

RATHIDEVI A/P NADARAJAN [IDENTITY CARD NO. : 790705-08-5892]

PENGHUNI-PENGHUNI SEBUAH RUMAH SEMI-D TIGA TINGKAT DI BAWAH PEGANGAN BEBAS HSD 94894, PT 28820, MUKIM SUNGAI BULOH, DAERAH PETALING, NEGERI SELANGOR YANG BERALAMAT DI NO. 5, JALAN BRP 5/5A, BUKIT RAHMAN PUTRA, 47000 SUNGAI BULOH, SELANGOR ….. DEFENDANTS

In this Originating Summons for summary possession under O.89, the Plaintiff sues the Defendants, the previous registered owners of the house, for summary possession of the house.

At the application of the Defendants, this Court struck out the Plaintiff’s suit on the ground that it is clear and obvious that the Defendants, being the previous owners of the house, are not trespassers ab initio. In striking out the suit under O.89, this Court also gave liberty for the Plaintiff to file afresh as an ordinary suit other than under O.89.

Dissatisfied, the Plaintiff has appealed to the Court of Appeal against the said decision instead of availing himself of the liberty to file afresh. 3 Law of striking out under O.18 r.19

O.18 r. 19 striking out of a plaintiff’s suit is only to be resorted to in clear and obvious case where the plaintiff’s action is frivolous, vexatious, or an abuse of the process.

Where the plaintiff’s action is obviously unsustainable or has no chance of success, the plaintiff’s action is frivolous, vexatious, or an abuse of the process and can be summarily struck out. As long as the Plaintiff has at least one (1) triable issue that is relevant to his pleaded cause of action, the Court will not summarily strike out his claim under O.18 r.19. Where the Plaintiff has a triable issue relevant to its claim, its claim cannot be summarily struck merely because it has a weak case. Analysis and decision of this Court

In the pleadings the Plaintiff has pleaded his case in this Originating Summons (“this OS”) under O.89 for summary possession against the Defendants, occupiers of a 3-storey semi-detached house at Bukit Rahman Putra (”the said House”).

The 1st Defendant vide Enclosure 5 has filed this application under O.18 r.19 to strike out the Plaintiff’s OS. The grounds relied upon by the 1st Defendants are duplicity of proceedings and/or estoppel in that the summary possession sought in this OS in also the subject matter of a consent judgment in a previous suit, namely Shah Alam High Court Writ No. BA-22NCVC-295-05/2017 (“the Previous Suit”) 4 filed by the Plaintiff against the 1st Defendant and two other persons.

From the copies of cause papers in the Previous Writ which have been exhibited to the 1st Defendant’s Affidavit in Support (Enclosure 6), it is clear and obvious that the subject matter of this OS is also one of the subject matters in the Previous Writ which culminated in a consent judgment dated 18.02.2019 [see Exhibit R1 at pdf pages 10 to 252 including the Consent Judgment at pdf pages 250 – 252].

It is also clear and obvious that the 1st Defendant and her husband were the previous owners of the said House who transferred the title of the said House to the Plaintiff pursuant to some arrangement between them: see pdf pages 142 and 205. Law on summary possession under O.

O.89 of ROC 2012 provides as follows: “Where a person claims possession of land which he alleges is occupied solely by a person or persons (not being a tenant or tenants holding over after the termination of the tenancy) who entered into or remained in occupation without his licence or consent or that of any predecessor in title of his, the proceedings may be brought by originating summons in accordance with the provisions of this Order”

It is settled law that O.89 summary process is only meant for proceedings against occupiers who are trespassers ab initio. Where the defendants are not trespassers ab initio, O.89 summary procedure is not applicable at all to such defendants: see Supreme 5 Court’s decisions in Chiu Wing Wa & Ors v. Ong Beng Cheng [1993] 1 MLRA 625; [1994] 1 CLJ 313; [1994] 1 MLJ 89 and in Bohari Taib & Ors v. Pengarah Tanah & Galian Selangor [1990] 2 MLRA 107; [1991] 1 MLJ 343; [1991] 1 CLJ (Rep) 48.

Here, it is clear that the Defendants, who were previous owners of the said House, are not trespassers ab initio. As the 1st Defendant was the predecessor in title of the said House, it cannot be said that the 1st Defendant entered or remains in occupation of the said House without the licence or consent of any of the Plaintiff’s predecessor in title.

In the premises, the Plaintiff’s purported O.89 proceeding here is fatally defective in procedure. As such, this OS (Enclosure 1) is struck out with liberty to file afresh as ordinary proceeding other than summary procedure under O.89.

In light of the Defendant’s solicitor’s application in Enclosure 10 to withdraw as solicitor on record, this Court does not make any finding or decision on the question of duplicity or estoppel. These questions are left to be dealt with in the fresh suit, if any, which is to be filed pursuant to the liberty to file afresh.

This Court also does not see any useful or meaningful purpose to continue with this OS to hear the application to withdraw as solicitor, to go through the procedural rigmarole of re-fixing subsequent hearing dates for Enclosure 10 or Enclosure 1 (OS) and then make the same conclusion that O.89 summary procedure in Enclosure 1 (OS) here is fatally defective because the Defendants are not 6 trespassers ab initio.

In view of this Court’s decision to strike out this OS with liberty to file afresh as ordinary suit, it is not necessary for this Court to issue any further case management directions for Enclosure 1 or Enclosure 10.

There should be no order as to costs here. Dated this 13th October 2023 Signed ….….............................................................. TEE GEOK HOCK JUDGE HIGH COURT OF MALAYA AT SHAH ALAM (NCVC 10) To the parties’ solicitors:

For the Plaintiff : Arun Ganesh Boopalan Messrs Kamil Hashim Raj & Lim (Petaling Jaya)

For the Respondent : Sheelan a/l Arjunan Messrs Sheelan Arjunan (Kuala Lumpur)