Komala Naidu a/p Purushothaman v KANAGARAJ NAIDU A/L PURUSHOTHAMAN (WA-12ANCvC-163-11/2025)

(NO. K/P: 480501-01-5194) …RESPONDEN PERTAMA

…RESPONDEN KEDUA

KANAGARAJ NAIDU A/L PURUSHOTHAMAN (NO. K/P: 740611-14-5115) …RESPONDEN KETIGA DALAM MAHKAMAH SESYEN DI KUALA LUMPUR DALAM WILAYAH PERSEKUTUAN KUALA LUMPUR MALAYSIA

(NO. K/P: 480501-01-5194) 18/06/2026 08:38:14

…PLAINTIF-PLAINTIF …DEFENDAN (DALAM TUNTUTAN BALAS) …PLAINTIF

(NO. K/P: 480501-01-5194) …DEFENDAN PERTAMA

…DEFENDAN KEDUA

KANAGARAJ NAIDU A/L PURUSHOTHAMAN (NO. K/P: 740611-14-5115) …DEFENDAN KETIGA GROUNDS OF JUDGMENT

This is an appeal by the Appellant (Plaintiff in the counterclaim/Defendant in the original claim) against the decision of the learned Sessions Court Judge dated 14.11.2025 allowing the 3rd Respondent’s (3rd Defendant in the counterclaim) application under Order 18 rule 19(1)(b) and/or (d) of the Rules of Court 2012 (“ROC 2012”) to strike out the Appellant’s counterclaim against the 3rd Respondent.

Having heard learned counsel for the parties and having considered the Record of Appeal, the written submissions and the authorities filed by both parties, this Court dismissed the appeal with costs.

The original action in the Sessions Court was commenced by the 1st and 2nd Respondents against the Appellant for, inter alia:

vacant possession of the property situated at Palm Court Condominium, Kuala Lumpur; and

alleged outstanding rental collection and related reliefs.

The Appellant subsequently filed a Defence and Counterclaim dated 31.12.2024 and joined the present 3rd Respondent as the 3rd Defendant in the counterclaim proceedings.

The counterclaim broadly alleged fraudulent dealings relating to the estate and transfer of the property and sought various reliefs including injunctions, caveat, damages and accounts.

The 3rd Respondent thereafter filed an application to strike out the counterclaim on the basis that:

the allegations of fraud were not properly pleaded with particulars;

no sustainable cause of action was disclosed against the 3rd Respondent;

the counterclaim was frivolous, vexatious and an abuse of process; and

the claims appeared time-barred.

The learned Sessions Court allowed the striking out application, leading to the present appeal.

It is well settled that an appellate court will not interfere with findings of fact made after a full trial unless such findings are shown to be plainly wrong, against the weight of the evidence, or unsupported by the evidence on record.

Appellate intervention is warranted only where there is a misdirection in law, a failure to consider material evidence, consideration of irrelevant matters, or a conclusion that no reasonable court could have reached.

The central issue before this Court is whether the learned Sessions Court Judge erred in striking out the Appellant’s counterclaim against the 3rd Respondent under Order 18 rule 19 ROC 2012.

The applicable principles governing striking out under Order 18 rule 19 ROC 2012 are well settled.

The jurisdiction to strike out is draconian and must be exercised sparingly. Nevertheless, the Court retains the power to strike out pleadings which are plainly unsustainable, frivolous, vexatious or constitute an abuse of the process of the Court.

In Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36, the Supreme Court emphasised that the Court may strike out a pleading where it is obviously unsustainable. The same principle was relied upon in the Respondent’s submissions and authorities.

Further, where fraud is alleged, Order 18 rules 7 and 8 ROC 2012 require material facts and particulars of fraud to be specifically pleaded.

The authorities cited by the Respondent, including Wong Yew Kwan v Wong Yu Ke & Anor [2009] 2 MLJ 672 and Rokiah bt Suhaili v Emly Batu ak Bagang & Ors [2014] 7 MLJ 452, reiterate the mandatory requirement that allegations of fraud must be pleaded with utmost particularity. F.

(A) Failure to Particularise Fraud

The procedural foundation is found in Order 18, Rule 12(1)(a), which mandates that every pleading must contain the necessary particulars of any claim or defence, explicitly specifying that full particulars of the alleged fraud must be given.

“Particulars of pleading (O. 18, r. 12)

Subject to paragraph (2), every pleading shall contain the necessary particulars of any claim, defence or other matter pleaded including, without prejudice to the generality of the foregoing words—

particulars of any misrepresentation, fraud, breach of trust, wilful default or undue influence on which the party pleading relies; and

where a party pleading alleges any condition of the mind of any person, whether any disorder or disability of mind or any malice, fraudulent intention or other condition of mind except knowledge, particulars of the facts on which the party relies.”

Upon examining the Defence and Counterclaim as a whole, this Court finds that the allegations of fraud against the 3rd Respondent were pleaded in broad and generalised terms.

While the counterclaim repeatedly used expressions such as “fraud”, “fraudulent dealings” and allegations relating to concealment and impropriety, the pleading failed to clearly identify:

the precise representation allegedly made;

the date and circumstances of such representation;

the specific conduct attributable to the 3rd Respondent personally;

how the Appellant relied on such representation; and

the precise loss directly occasioned by the alleged acts of the 3rd Respondent.

The Appellant's counterclaim against the 3rd Respondent (Kanagaraj Naidu a/l Purushothaman) is founded upon the following allegations: “16.7 Plaintif merujuk kepada Defendan Ketiga bernama Kanagaraj Naidu a/l Purushothaman yang berlamat No. 12A, Jalan Mutiara Tropicana 2, Mutiara Tropicana PJU 3, 47410 Petaling Jaya, Selangor.

16.7 i. Kanagaraj Naidu a/l Purushothaman adalah adik lelaki kepada Plaintif dan Defendan Kedua.

16.7 ii. Defendan Ketiga mempunyai pengetahuan penuh atas hartanah tersebut dan bahawa Defendan Kedua secara Fraud telah memindahmilik atas namanya pada 27.06.2024.

16.7 iii Defendan Ketiga dan Defendan Kedua telah menjual hartanah mendiang Purushthaman a/l Narasimalu Naidu atas Geran Mukim 1566 Lot No. 1443 Mukim Bagan Serai pada tahun 2009 tanpa izin daripada mendiang Purushothaman a/l Narasimalu dan dengan harga paling rendah. Salinan-salinan email mengenai hartanah tersebut dilampirkan di sini sebagai Lampiran “B”.

16.7 iv. Defendan Ketiga dan Defendan Kedua telah mengurus dalam satu Public Mutual pada 07.03.2023. Sesalinan Keratan Public Mutual dilampirkan di sini sebagai Lampiran “C”

16.7 v. Mendiang Purushothaman a/l Narasimalu Naidu juga menolong Defendan Ketiga dari segi kewangan apabila Defendan Ketiga membeli rumahnya yang beralamat No. 12A Jalan Mutiara Tropicana 2, Mutiara Tropicana PJU 3, 47410 Petaling jaya, Selangor pada tahun 2008 dan rumah yang beralamat B-05-05 Palm Court Condominium, Brickfields Kuala Lumpur pada tahun 2003 yang Defendan Ketiga tanpa memberi apa-apa maklumat kepada mendiang Purushothaman a/l Narasimalu Naidu telah meminda rumah yang beralamat B-05-05 Palm Court Condominium, Brickfields Kuala Lumpur kepada isterinya bernama Sasikala a/p Vijaykumar pada tahun 2005.”

The allegations, in substance, were largely narrative and inferential in nature.

Several landmark cases reinforce that a court will disregard general allegations of fraud if they lack specific identifiers and supporting facts.

In Malayan Banking Bhd v Lim Tee Yong [1994] 4 CLJ 558, the High Court held that it is established law that the expression "fraud" cannot be generally or vaguely pleaded. The specific fraudulent acts, who committed them, and how they were carried out must be clearly identified.

In Wallingford v Mutual Society (1880) 5 App Cas 685 (Applied in Malaysia), it established that "the mere allegation of fraud without showing facts to support it is not a matter to which the court will pay serious attention". A party must outline the exact facts demonstrating the dishonest intent.

The case of KPF Quality Foods Sdn Bhd v Stanson Marketing Sdn Bhd & Ors. [2016] MLJU 537 reiterated that the reason fraud must be strictly and specifically identified is to prevent taking the opposing party by surprise. It ensures the defendant knows exactly what case they have to meet at trial. In this case, the Court stated: “[24] It is obvious that both paragraphs 11 and 31 do not make any reference to the 4th Defendant and neither are any particulars of fraud pleaded against the 4th Defendant in the said paragraphs. In these paragraphs read together the narrative concerns D1, D2 and D3 only without any reference made to any involvement or participation by D4. [25] In the above premises, it was correctly contended by D4 that the Plaintiff’s allegation pertaining to the fraud purportedly committed by the D4 is obviously unsustainable and bound to fail. In support of this argument, reference was made to the trite law principle that particulars of fraud must be pleaded failing which the claim would fail as was held by the Court of Appeal in Wong Yew Kwan v. Wong Yu Ke & Anor [2009] 2 MLJ 672 as follows: “...The defendant alleged that the transfer to the plaintiffs by their father was by way of fraud, but no particulars were pleaded in the statement of defence or the counterclaim, it is trite law that particulars of fraud must not only be pleaded, but must be specifically pleaded. In the High Court case of Malayan Banking Bhd v Lim Tee Yong [1994] 4 CLJ 558 it was held by the High Court that it is established law that the expression fraud cannot be generally or vaguely pleaded. In Lee Kim Luang v Lee Shiah Yee [1988] 1 CLJ 619;; [1988] 1 CLJ (Rep) 717 the High Court held that a general allegation of fraud is insufficient event to amount to averment of fraud. There is good reason why fraud must be specifically pleaded and required in O 18 r 8(1) of the RHC. It is not to take the other party by surprise. In fact Lord Dening MR in Associated Leisure Ltd & Ors v Associated Newspapers Ltd [1970] 2 QB 450 said that ’it is the duty of the counsel not to put a plea of fraud on the record unless he has clear and sufficient evidence to support it...”

Further, Khalek Awang & Anor v Koperasi Perumahan Kluang Bhd. & Another Appeal [2021] 10 CLJ 238 heavily focuses on how fraud is established and proven in civil litigation. In this case, The Court of Appeal set out the procedural requirements that must be observed when pleading and pursuing a cause of action based on fraud, conspiracy to defraud, and/or misrepresentation.

This Court agrees with the Respondent’s submission that the particulars pleaded were insufficient to satisfy the mandatory requirements governing allegations of fraud.

Mere invocation of the word “fraud” does not immunise a pleading from scrutiny under Order 18 rule 19 ROC 2012.

Fraud is a serious allegation carrying serious legal consequences. The law therefore, requires such allegations to be distinctly and specifically pleaded so as to avoid surprise and unfair prejudice to the opposing party.

In the present case, the material particulars necessary to sustain such allegations were absent.

(B) No Sustainable Cause of Action Against the 3rd

This Court further finds that the pleaded facts did not sufficiently disclose a sustainable cause of action against the 3rd Respondent personally.

The pleadings appeared to proceed substantially on suspicion, association and broad assertions arising from dealings concerning the estate and property.

However, no sufficient material facts were pleaded to demonstrate how the 3rd Respondent himself committed actionable wrongdoing giving rise to the reliefs claimed.

Although the Court must avoid conducting a mini-trial at the striking out stage, the Court is nevertheless entitled to examine whether the pleaded facts, even if accepted at face value, disclose a legally recognisable claim.

In the present case, this Court is unable to identify a properly pleaded and sustainable cause of action against the 3rd Respondent.

(C) Limitation Issue

The Respondent also raised limitation as one of the grounds supporting the striking out application.

The alleged impugned dealings and transfer appeared to have occurred many years prior to the filing of the counterclaim.

Significantly, the Appellant did not clearly plead:

when the alleged fraud was discovered;

the circumstances of concealment; or

facts sufficient to invoke any postponement of limitation period.

While limitation involving fraud may in certain circumstances require evidence at trial, the deficiencies in the present pleadings further reinforce the conclusion that the counterclaim was unsustainable against the 3rd Respondent.

(D) Effect of Related Appeal Against 1st and 2nd

The Appellant repeatedly referred to another High Court appeal said to have reinstated the counterclaim against the 1st and 2nd Respondents.

In this Court’s view, that fact does not automatically determine the outcome of the present appeal.

The sustainability of a cause of action must be assessed against each defendant individually and based on the specific pleadings directed against that defendant.

A pleading which may arguably survive against one party does not necessarily survive against another where the pleaded material facts materially differ.

Upon considering the totality of the circumstances, this Court finds no appealable error in the decision of the learned Sessions Court Judge.

The learned Sessions Court Judge correctly exercised her discretion in striking out the counterclaim against the 3rd Respondent pursuant to Order 18 rule 19 ROC 2012.

The counterclaim, insofar as it concerned the 3rd Respondent, failed to disclose a properly pleaded and sustainable cause of action and was liable to be struck out.

Accordingly, the appeal is dismissed with costs of RM5,000. Dated: 17th June 2026 ……………………………………………… (YA PUAN MAHAZAN BINTI MAT TAIB) JUDGE HIGH COURT OF MALAYA KUALA LUMPUR Counsel for The Appellant : S. Santhi Messrs. S. San & Co. Advocates & Solicitors Counsel for The Respondent :