KL CITY GATEWAY SDN. BHD. (Dikenali sebelum ini sebagai Ritzy Gloss Sdn. Bhd.) v Afnisar Bin Gustar (WA-24NCvC-3610-09/2024)

AFNISAR BIN GUSTAR

GUSNIWATI BINTI GUSTAR AL-HADJ

CHE JAH BINTI ABU BAKAR

4.

AZIAH BINTI OMAR

MOHD SUFFIAN BIN IBRAHIM

SYAZRIN DINIE BIN IBRAHIM @ ABD RAHMAN

ROSMINAH BINTI OSMAN @ MARZUKI

ABDUL RANI BIN AMAN

SHAFFIE BIN OSMAN

FAZIAH BINTI ISMAIL BASHA

HAJAH HALIJAH BINTI HAJI MUSTAFFA

T.J. ISKANDAR BIN ABD AZIZ

NOORWALIS BINTI MOHD ZEN

ATIKAH BINTI MOHAMA ALI @ MOHAMAD ALI

HASSIM BIN LONG

ERNI FIRDAUZ BIN ZAINAL (NO. K/P; 680605-10-5801)

18.

19.

HASHIM BIN HJ. MOHD SOM

JAMAL BIN HASHIM

SHARIFAH MAZNAH BINTI OMAR

SITI ZARIDAH BINTI HALIM

SYED FADILLAH BIN SYED ABDULLAH

SYED OSMAN BIN SYED YUSOFF

ISKANDAR SHAH BIN ABDULLAH

HALIMAH BINTI BASIRON

NOR IZA BINTI ABD JALIL

SYED MOHAMMAD RAMZULNIZAN BIN SYD ZULKIFLI

FATIMAH BINTI MOHD ARIFF

OTHMAN BIN MOHD TAIB

AZIZAH BINTI AHMAD

SITI ZAHARIYAH BINTI JAMALUDDIN

MAZNAN BIN TAMAH

DZURAIDAH BINTI KUDUT

MALINDO RAHMAT BIN EMSUKUR

NORHANAH BINTI IDRIS

KHALIL BIN SAID

SHAMSHUL ARIFFIN BIN SHAFIE

DOLAH SANAI BIN SEKAK

HASANUDDIN BIN ALIAS

ZAINAB BINTI ABU BAKAR

NORAINI BINTI SULAIMAN

MOHD JAFRI BIN SULAIMAN

MARLINA BINTI MUHAMAD

MOHD HAFIZ BIN OTHMAN

MUHIDDIN BIN ABDULLAH

MURSHIDI BIN MUHIDDIN

MOHD RIZAL BIN HUSSIN

ANUAR BIN AHMAD

JAMILAH BINTI AHMAD

BUYUNG BIN TANJUNG

JULYA SAHFITRI BINTI BUYUNG

RASHID BIN MAT SAAD

HASHIM @ALI AHMAD BIN A HAMID

AZLAN BIN HASHIM

NORHASHIMAH BINTI HASHIM

AZMI BIN HASHIM

NORAINI BINTI HASHIM

NORMA BINTI HASHIM

MOHD LIZAM BIN ZABRI

HASHIM BIN MOHD SALLEH

SARINA BINTI MARION

MOHD HASLAN BIN ABDUL ABBAS

RAJA ZALINAH BINTI RAJA SULEIMAN

ZAINAL BIN HAMZAH

HAJI TAHIR BIN HAMID

ZAKARIA BIN YUSOF

HASHIM BIN MOHD SALLEH

SARINA BINTI MARION

MOHAMAD AUFFA BIN HASHIM

IBRAHIM BIN SAMAT

SALMI BINTI IBRAHIM

YUSOF BIN HASSAN

ZALAHA BINTI YUSOF

ROSNA BINTI IBRAHIM

MUHAMMAD ALI BIN IBRAHIM

AHMAD BIN IBRAHIM

KINTAN BINTI IBRAHIM

YUSOFF BIN IBRAHIM

MUHAMMAD SHAHRUL BIN MOHD NOOR

NORAINI BINTI ZAINAL ABIDIN

MOHD ISA BIN MOHAMMAD

ERMA BINTI ABDUL AZIZ

MOHD NOR BIN ALI @ MAT ALI

SURIANI BINTI MOHD NOR

MOHD RAMLI BIN KLP MD THAIB

MAT KHAIR BIN MOHD RAMLI

NUR SYAFIQAH BINTI HASHIM

SURIATI BINTI MOHD RAMLI

WAN NGAH BIN ABDUL RAUF

ZULKIFLI BIN RAMLI

HASNEETA BINTI MOHD HASHIM

HASLINA BINTI MOHD KAFIAH

OMAR BIN BAKAR

OTHMAN BIN OMAR

MOHAMAD SHAHMIR BIN AH SHA’ARI

FATIMAH BINTI HASSAN

HAIRUL BIN HADEZAN

SUZILIANA BINTI MOHAMAD JAI

TIAP-TIAP ORANG LAIN YANG MENDUDUKI HARTANAH-HARTANAH TERSEBUT ...RESPONDAN

This is an application by 4 of the 109 Defendants to set aside the Court’s order allowing the Plaintiff’s Originating Summons for a writ of possession against all the Defendants under Order 89 Rule 8 of the Rules of Court 2012 (“the Rules”). Brief facts

The Plaintiff as the registered owner of 4 pieces of land situated at Section 41, Bandar Kuala Lumpur, Daerah Kuala Lumpur applied by way of Originating Summons to evict all the Defendants who were trespassers at the said lands.

The Originating Summons was served by Muhammad Imran bin Borhan who affirmed an affidavit of service, showing that he had served all the Defendants with the sealed copy of the Originating Summons together with the supporting affidavits (“the documents”).

The said process server had by way of service left the documents at all the 4 plots of land as well as stuck the documents on the main doors of the houses where it was easily noticeable. Photographs showing the service of the documents were attached to the affidavit of service.

On the return date fixed by the Court none of the Defendants appeared whereby the Court allowed the Plaintiff’s Originating Summons after considering the application as well as the affidavit in support.

The Court ruled that the Originating Summons had complied with Order 89 of the Rules which stipulates as follows:

Proceedings to be brought by originating summons (O. 89 r. 1) 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.

Forms of originating summons (O. 89 r. 2)

The originating summons shall be in Form 8A and an acknowledgement of service is not required. An originating summons filed under this Order shall include the following note at the end thereof: "Note: Any person occupying the premises who is not named as a defendant by this originating summons may apply to the Court personally or by solicitor to be joined as a defendant. If a person occupying the premises does not attend personally or by solicitor at the time and place abovementioned, such order will be made as the Court may think just and expedient.".

Affidavit in support (O. 89 r. 3)

The plaintiff shall file in support of the originating summons an affidavit stating-

his interest in the land;

the circumstances in which the land has been occupied without licence or consent and in which his claim to possession arises; and

that he does not know the name of any person occupying the land who is not named in the summons.

Where the plaintiff is unable, after taking reasonable steps, to identify every person occupying the land for the purpose of making him a defendant, the plaintiff shall state in his affidavit that he has taken reasonable steps (describing them) to identify the persons occupying the land who are not named in the summons.

Service of originating summons (O. 89 r. 4)

Where any person in occupation of the land is named in the originating summons, the summons together with a copy of the affidavit in support shall be served on him-

personally or in accordance with Order 10, rule 5;

by leaving a copy of the summons and of the affidavit or sending them to him, at the premises; or

in such other manner as the Court may direct.

The originating summons shall, in addition to being served on the named defendants, if any, in accordance with paragraph (1) be served, unless the Court otherwise directs, by-

affixing a copy of the summons and a copy of the affidavit to the main door or other conspicuous part of the premises; and

if practicable, inserting through the letter-box at the premises a copy of the summons and a copy of the affidavit enclosed in a sealed envelope addressed to "the occupiers".

Every copy of an originating summons for service under paragraph (1) or (2) shall be sealed with the seal of the Court out of which the summons was issued.

Application by occupier to be made a party (O. 89 r. 5) Without prejudice to Order 15, rules 6 and 10, any person not named as a defendant who is in occupation of the land and wishes to be heard on the question whether an order for possession should be made may apply at any stage of the proceedings to be joined as a defendant.

Order for possession (O. 89 r. 6)

A final order shall not be made on the originating summons except by a Judge in person and shall, except in case of urgency and by leave of the Court, not be made less than five clear days after the date of service.

An order for possession in proceedings under this Order shall be in Form 195.

Nothing in this Order shall prevent the Court from ordering possession to be given on a specified date, in the exercise of any power, which could have been exercised if possession had been claimed in an action begun by writ.

Writ of possession (O. 89 r. 7) Order 45, rule 3(2) shall not apply in relation to an order for possession under this Order but a writ of possession to enforce such an order shall not be issued after the expiry of three months from the date of the order without the leave of the Court.

Setting aside order (O. 89 r. 8) The Court may, on such terms as he thinks just, set aside or vary any order made in proceedings under this Order. Grounds for application to set aside the Court order

The first ground by all the 4 Defendant in applying to set aside the Court order is that they were not served the documents as claimed by the Plaintiff and had no knowledge of the same.

The other ground is that all the 4 Defendants had filed a civil suit challenging the ownership of the said plot of lands. In the writ filed the Defendant s has sought declaration that the lands belonging to the Plaintiff be designated as a Malay Agricultural Settlement Kuala Lumpur.

The writ further sought a declaration that alleged that the acquisition of the said lands by the Plaintiff was illegal and invalid as the there was a restriction of transfer of the lands to a non-Malay.

The Court rules that the issue of non-service by the 4 Defendants is unsustainable in the face of clear service of the document as affirmed in the affidavit of service. It is clear the service of the documents were in compliance of Order 89 Rule 4 of the Rules.

An important condition for a summary possession of the lands is for the Plaintiff to show an interest in the land. This is clear from the land titles which show the Plaintiff as the registered owners of the land. In fact, the Plaintiff being registered owner is admitted to by the Defendants themselves.

It is also clear that the Defendants challenge to the ownership of the land by the Plaintiff has not been adjudicated. The Defendants have not shown that they are in occupation of the lands with the consent or licence of the Plaintiff who is the registered owner. The Defendants are therefore clearly trespassers.

In the upshot the Court dismissed the Defendant’s application with a cost of RM3, 000. Dated: 4.2.2025 sgd DATO’ HAJI AKHTAR BIN TAHIR Judge High Court of Malaya, Kuala Lumpur PARTIES For the Plaintiff: Nama Peguamcara: Bushro Bin Mohamad Anuar / Ashmadi Othman / Nabilah Tetuan Zulpadli & Edham No. 24, Jalan Perumahan Gurney, Kampung Datuk Keramat, 54000 Kuala Lumpur, Wilayah Persekutuan Kuala Lumpur. For the Defendant: Nama Peguamcara: Norazura Binti Mohamed Mokhtar Tetuan Azura Mokhtar & Low No. 58, Medan Istana 1, Bandar Ipoh Raya, 30000 Ipoh, Perak Darul Ridzuan.