Kejendran A/L Nadarajan v Kavitah A/P Vathumalai (BA-24NCvC-735-04/2024)

In this Originating Summons, the Plaintiff seeks the removal of a private caveat lodged by the Defendant. During the proceedings, a separate application was filed under Enclosure 7 by a Proposed Intervener, requesting leave to intervene and be added as a Co-Defendant in this suit.

This decision addresses the application set out in Enclosure 7.

The central question in this case is whether this Court should exercise its discretion to grant the application in Enclosure 7. Consequently, the pertinent issue for this Court to consider is whether the Proposed Intervener has established a sufficient legal basis or interest to justify his intervention, as outlined by the Federal Court in Chong Fook Sin v Amanah Raya Bhd (as the administrator for the estate of Raja Nong Chik bin Raja Ishak, deceased) & Ors [2011] 1 AMR 325; [2010] 7 CLJ 917; [2011] 1 MLJ 721; [2010] 1 MLRA 222 ('Chong Fook Sin').

To address the issue outlined in the preceding paragraph, it is essential that we are apprised of the background facts and claims made by the respective parties.

The Plaintiff is Kejendran a/l Nadarajan (“Kejendran”).

The Defendant is Kavitah a/p Vathumalai (“Kavitah”), while the Proposed Intervener is Paul Monash a/l Narayanasamy (“Paul”).

In the main Originating Summons, Kejendran seeks the removal of a private caveat lodged by the Kavitah.

The land in question is registered in the names of Kejendran, his late brother, and his mother, Mardai @ Ratha a/p Ponusamy (“Mardai”), each holding an equal share. Mardai passed away on 14 October, 2023.

Kejendran and Mardai entered into a Sale and Purchase Agreement on 11 April, 2023 to sell the said land to Vimala a/p Maruthamuthoo (“Vimala”).

However, the transfer of the land could not be completed, as Kejendran later discovered that Kavitah had lodged a private caveat against the land on 10 July, 2023.

This prompted Kejendran to file the present Originating Summons on 15 April, 2024 against Kavitah, seeking an order for the removal of the private caveat.

Interestingly, Paul had also lodged a private caveat against the same land on 3 April, 2024. This led to the filing of a separate Suit BA-24 NCvC-1007-05/2024 (“Suit 1007”) - in another court, for the removal of Paul’s caveat, with Vimala as the Plaintiff.

In Suit 1007, Paul was the Defendant in the main application for the removal of the caveat, and Kavitah had applied to intervene. The High Court at Shah Alam in Suit 1007 disallowed Kavitah’s application to intervene and granted Vimala’s Originating Summons to remove Paul’s caveat.

The Plaintiff, Kejendran, vigorously opposed Enclosure 7, arguing that Paul lacks the requisite legal interest under the law to intervene in the present proceedings.

Kejendran maintained that the basis for Kavitah’s caveat registration was an alleged 'agreement' between Kejendran and Kavitah. Consequently, Kejendran contended that Paul has no legal standing or interest to intervene in this matter.

In fact, Kavitah had lodged the caveat on the grounds that Kejendran had entered into a Sale and Purchase Agreement with her in 2012.

However, Paul, in support of his application, made the following averments:

That Kejendran and Mardai had entered into a Sale and Purchase Agreement with him on 25 January 2012;

That he had lodged a private caveat on 3 April 2024;

That he, together with Kavitah, had been settling the monthly instalments to Citibank from 2013 to 2023;

That Kejendran had fraudulently sold the said property to

That, had it not been for the caveat lodged by Kavitah, it would have been impossible to recover the balance of the purchase price paid to Vimala. [18] Kejendran vehemently denied having entered into any Sale and Purchase Agreement with Paul in 2012. The Applicable Law and Principles [19] The law in respect of evaluating intervener applications is found in Order 15 rule 6(2)(b) of the Rules of Court 2012. The said provision reads as follows:

Subject to this rule, at any stage of the proceedings in any cause or matter, the Court may on such terms as it thinks just and either of its own motion or on application —

…

order any of the following persons to be added as a party, namely –

any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon or

(ii) any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which, in the opinion of the Court, would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter. [20] The legal position regarding the requirements and tests outlined in the aforementioned provision has been extensively clarified in a long line of cases. For brevity, it is sufficient to refer to the observations made by the Federal Court in Chong Fook Sin, as follows [23] The law in respect of evaluating intervener applications at first instance had been laid down by the Privy Council in Pegang Mining Co Ltd v Choong Sam & Ors [1969] 2 MLJ 52 (PC). [24] The decision in Pegang Mining was adopted by the then Supreme Court in Tohtonku Sdn Bhd v Superace (M) Sdn Bhd [1992] 2 MLJ 63; [1992] 2 CLJ 1153; [1992] 1 CLJ 344 (Rep). [25] In Tohtonku Sdn Bhd the then Supreme Court had this to say: It is settled law, on the authorities, that a party may be added if his ‘legal interests’ will be affected by the judgment in the action but not if his commercial interests alone would be affected: per Lord Diplock in Pegang Mining Co Ltd v Choong Sam & Ors at pp 55–

[26] This is reflected by O 15 r 6(2)(b) of the RHC … The Decision of this Court [21] It bears emphasis that the Originating Summons in Enclosure 1 seeks the removal of a private caveat lodged by Kavitah. [22] In determining Enclosure 1, the central issue is whether Kavitah, as the caveator, possesses a caveatable interest. The Defendant, Kavitah, is fully capable of opposing the relief sought in Enclosure 1 without the need for Paul to intervene or be added as a co-defendant. [23] This Court is of the considered view that Paul has failed to demonstrate a legal basis or sufficient interest to justify his intervention in these proceedings. [24] While Paul has every right to protect his own interests — and has done so by lodging a private caveat — it should be noted that Vimala has already succeeded in Suit 1007 in having Paul’s private caveat removed. As such, Paul’s interests have already been addressed, and he should not be permitted to intervene in the present matter. [25] During the hearing of this application, counsel for Paul referred this Court to a recent decision of the Court of Appeal in Tenaga Nasional Bhd v Sime Darby Plantation Bhd & Anor (Petronas Gas Bhd, proposed intervener) [2024] 10 CLJ 963; [2024] 6 MLJ 460; [2024] MLRAU 247, contending that this case supports Paul’s application. The Court of Appeal made the following observations: Law on Application to Intervene by a Non-Party [37] The Federal Court in Hong Leong Bank Berhad v Staghorn Sdn Bhd & Other Appeals [2008] 2 MLJ 622; [2008] 2 CLJ 121 (“Staghorn”) held where a non-party tries to intervene in a proceedings, he must do so under Order 15 rule 6 of the Rules of the High Court 1980 (“RHC 1980”). [38] The application to intervene under Order 15 rule 6(2) must be made before judgment: “at any stage of the proceedings” means before judgment, otherwise the proceedings have concluded and there is no longer a proceeding for the party to intervene in. Abdul Hamid Mohamad CJ delivering the judgment of the Federal Court said: [43] Considering all these authorities, my conclusion is that an application to intervene under O. 15 r. 6(2) of the RHC 1980 must be before judgment. ……… [46] Before going any further, it must be remembered that where a non-party tries to intervene in the proceedings, he must necessarily do so under O. 15 r. 6 of the RHC 1980. There is no other provision under the National Land Code (“NLC”) or any other law or rule for him to rely on. So, like interveners in other civil proceedings, he too must comply with the provisions of O. 15 r. of the RHC 1980. [39] The application for leave to intervene must be supported by an affidavit. The Federal Court held a judge merely decides, based on the affidavit, whether to grant leave to intervene to the non-party. The judge should not make any definite findings on facts. It held: [60] Thirdly, an application for leave to intervene is supported by an affidavit. In other words, in such an application, the judge merely decides on affidavit evidence, whether or not leave should be granted. At that stage, the judge should not make a definite finding of facts which, as envisaged by O. 15 r. 6 of the RHC 1980, will and can only be made after all evidence has been adduced in the trial which will follow subsequently. [40] The Federal Court further held that in an application to intervene, the principles laid down in Pegang Mining Co Ltd v Choong Sam & Ors [1969] 2 MLJ 52; [1968] 1 LNS 96 (“Pegang Mining”) are applicable and all the requirements of Order 15 rule 6(2) of the RHC 1980 must be satisfied, provided there was an existing proceeding for the applicant to intervene. [41] In Pegang Mining, the Privy Council held that one of the principal objects of the rule that gives Courts jurisdiction to add a party to an action is to prevent injustice being done to that person by not giving him the right to be heard. Lord Diplock delivering the judgment of the Board said at p. 55 G and p. 56 A of [1969] 2 MLJ 52: The cases illustrate the great variety of circumstances in which it may be sought to join an additional party to an existing action. In their Lordships’ view one of the principal objects of the rule is to enable the Court to prevent injustice being done to a person whose rights will be affected by its judgment by proceeding to adjudicate upon the matter in dispute in the action without his being given an opportunity of being heard. To achieve this object calls for a flexibility of approach which makes it undesirable in the present case, in which the facts are unique, to attempt to lay down any general proposition which could be applicable to all cases. ……………… While their Lordships agree that the mere fact that a person is likely to be better off financially if a case is decided one way rather than another is not a sufficient ground to entitle him to be added as a party, they do not find the dichotomy between “legal” and “commercial” interests helpful. A better way of expressing the test is: will his rights against or liabilities to any party to the action in respect of the subject matter of the action be directly affected by any order which may be made in the action? [Emphasis added] [26] This decision by the Court of Appeal simply reaffirms the established principles governing this aspect of law and procedure. [27] This Court is well aware that one of the primary purposes of the rule granting Courts the jurisdiction to add a party to an action is to prevent injustice by ensuring that the individual in question is given the opportunity to be heard. In this case, it cannot be said that Paul has been denied that right. [28] Similarly, while there are numerous circumstances under which an additional party may be joined to an ongoing action, this instance does not align with those conditions. [29] In view of the above findings, Enclosure 7 is dismissed with costs. [30] The Proposed Intervener is to pay costs of RM5,000 to the Plaintiff. Dated: 1 April, 2025 sgd [CHOONG YEOW CHOY] Judicial Commissioner High Court of Malaya Shah Alam Counsel: Muhamad Saifullah bin Muhamad Azmi with Jayamurugan a/l Vadivelu for the Plaintiff (Messrs. Jayamurugan Vadivelu & Partners) J. J. Naidu a/l R. J. Naidu for the Defendant (Messrs. J J Naidu & Rakan-Rakan)