Malairaju a/l Ramasamy Velar v Malayan Saiva Sidthanta Sangam & Anor (12AC-23-09/2016)

MALAYAN SAIVA SIDTHANTA SANGAM

THE BOARD OF TRUSTEES OF THE AHTHI-EESWARAN TEMPLE - RESPONDENTS IN THE SESSION COURT AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF WILAYAH PERSEKUTUAN, MALAYSIA CIVIL SUIT NO: WA-B52C-50-05/2016

MALAYAN SAIVA SIDTHANTA SANGAM

THE BOARD OF TRUSTEES OF THE AHTHI-EESWARAN TEMPLE - PLAINTIFFS 2 And MALAIRAJU A/L RAMASAMY VELAR - DEFENDANT THE JUDGMENT OF Y.A. LEE SWEE SENG [1] On the surface this is an action brought by the 1st and 2nd Plaintiffs in the Sessions Court to restrain the Defendant from carrying on renovation works in a temple. On closer scrutiny of the surrounding circumstances of the case, this is the continuing saga of control over the temple that has been simmering for the past 20 years and the schism driven deeper with the disputes coming before the courts in at least recent 2 cases. [2] There is thus more than meets the eye in this seemingly simple case of a contractor having no authority to carry out renovation works at a temple. It is a collateral attack launched when 2 previous frontal onslaughts have failed in recent times in 2012 and 2015. [3] This Court shall try to set out once again what 2 previous High Courts have unravelled in a dispute that would not go away. 3 Parties [4] The 1st Plaintiff in the Sessions Court is the Malayan Saiva Sidthanta Sangam (“Malayan Sangam”). It is a company limited by guarantee. In Malaysia it is not uncommon for a charitable and religious body to be so registered for a not for profit purpose. [5] The Malayan Sangam was incorporated to manage and control the Ahthi-Eeswaran Temple (“the Temple”) which was erected in Sentul in 1937. [6] The 2nd Plaintiff is the alleged Board of Trustees of the Temple. I had used this term “alleged” because there is the question as to whether the solicitors Messrs Rathi MG Associates has the proper authority to commence this suit in the name of The Board of Trustees of the Temple. [7] The solicitors acting for The Board of Trustees of the Temple has intervened in the proceedings in the Sessions Court to strike out the Plaintiffs’ suit. [8] The Board of Trustees of the Temple was incorporated by a Selangor Enactment pursuant to the resolutions passed by the founders of the Temple at the AGM and EGM of the Malayan Sangam in 1939. The relevant statute is the Selangor State Enactment No.8 of 1941 (“the 4 Enactment”). By the terms of the Enactment the lands belonging to the Malayan Sangam and the management and control of the Temple became vested in The Board of Trustees of the Temple. [9] The Defendant is a contractor appointed by The Board of Trustees of the Temple to carry out certain renovation works of the Temple. Pleadings [10] The Malayan Sangam as the 1st Plaintiff in the Sessions Court below had commenced this action using the name of The Board of Trustees of the Temple as the 2nd Defendant in claiming that they had not appointed the Defendant as contractor and that the Defendant was trespassing on the Temple. [11] The 2nd Plaintiff pleaded that it did not sign the purported Agreement dated 22.1.2016 appointing the Defendant as contractor and that the said Agreement is tainted with fraud and illegality. [12] The Plaintiffs also pleaded that the purported Agreement is in breach of the Building (Federal Territory of Kuala Lumpur) By-Laws 1985 as no approval for the renovation/alteration has been obtained from Dewan Bandaraya Kuala Lumpur (“DBKL”). [13] The Plaintiffs further stated that their actions were constrained by the fact that DBKL had investigated the matter and issued reminders 5 to the Plaintiffs to submit the relevant plans for approval before commencing any renovation works on the Temple. They maintained that only they could sign the plans as they are the registered owners of the Temple land. [14] They argued that there would be the sanction of fines imposed if nothing is done with respect to restraining the Defendant further from trespassing and continuing with the renovation. [15] The Defendant’s stand and Defence is that he was appointed by The Board of Trustees of the Temple to carry our works at the Temple through the Agreement dated 22.1.2016. Prayers [16] The Defendant applied by way of a Notice of Application dated 15.7.2016 for an order that the Writ of Summons and Statement of Claim dated 25.5.2016 be struck out pursuant to Order 18 Rule 19(1) (b), (c) and (d) Rules of Court 2012 (“ROC 2012”) in that:

is scandalous, frivolous or vexatious and/or

it may prejudice, embarrass or delay the fair trial of the action and/or

it is otherwise an abuse of the process of the Court 6 [17] The chief reason is that the 1st Plaintiff has no authority to bring this action on its own behalf or in the name of and on behalf of the 2nd Plaintiff as the land on which the Temple stands and the management and control of the Temple has been vested in the The Board of Trustees by virtue of the Enactment and that the Board of Trustees has not authorized Messrs Rathi MG Associates to commence this action in the name of The Board of Trustees. [18] The learned Sessions Court Judge dismissed the Application with costs in the cause on 2.9.2016. Against that decision the Defendant/Appellant had appealed to this Court. [19] The parties shall be referred to as Plaintiffs and Defendant as they were so referred in the Sessions Court. The 1st and 2nd Plaintiffs shall at times be referred to as the Malayan Sangam and the alleged Board of Trustees of the Temple respectively where appropriate in the context of the judgment below. [20] The Board of Trustees of the Temple, aggrieved by the action of the unauthorized use of its name to commence this action, had also been allowed leave by the Sessions Court to intervene in the proceedings below after the Sessions Court had dismissed the said application to strike out the Writ and Statement of Claim. The Intervener 7 Board of Trustees had also applied to strike out the action in the Sessions Court. [21] I had allowed the Intervener Board of Trustees of the Temple to appear in this hearing of the appeal as a friend of the Court. Principles [22] The law relating to striking out under an O 18 r 19(1) ROC 2012 is summarized succinctly in the case of Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36 by the Supreme Court as follows in the headnotes: “(1) The principles upon which the Court acts in exercising its power under any of the four limbs of O18 r 19 of the Rules of the High Court 1980 are well settled. It is only in plain and obvious cases that recourse should be had to the summary process under this rule and the summary procedure can only be adopted when it can clearly be seen that a claim or answer is on the face of it ‘obviously unsustainable’. It cannot be exercised by a minute examination of the documents and facts of the case in order to see whether the party has a cause of action or a defence.” 8 [23] I bear in mind too the caution issued in Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang Darul Makmur & Anor [2016] 3 MLJ 1, where the Federal Court held: “(3) ... However, whether the said evidence could or could not be obtained with reasonable diligence, whether it would have an important influence on the result of the trial, and whether it was presumably to be believed, were purely questions of facts which could only be determined at full trial where witnesses could be called to testify but not by way of affidavits evidence at the stage of summary proceedings of striking out under O 18 r 19 of the ROC as applied for by the appellant ...” Whether the 1st Plaintiff has no authority to bring this action on its own behalf or on behalf of and in the name of the 2nd Plaintiff as this issue has been decided by 2 previous High Court cases and that res jusdicata applies. [24] Learned counsel for the Malayan Sangam, Miss Rathimalar of Messrs Rathi MG Associates, cannot but be aware of what had already been decided in 2 previous Kuala Lumpur High Courts’ decisions in OS No. 24NCVC-1991-07/2012 (“the 2012 OS”) and in Civil Suit No. 22NCVC-378-07/2015 (“the 2015 Suit”). She, herself appeared as 9 counsel in those 2 cases and the solicitors were also Messrs Rathi MG Associates. The 2012 OS was decided by Justice John O’Hara and the 2015 Suit by Justice Nantha Balan. [25] The Plaintiff in the 2012 OS was The Board of Trustees of the Temple and the Defendants were the Malayan Sangam and 3 individuals including one Rasamalar a/p Gnanasundram who was the 3rd Defendant there and the person who has affirmed all the affidavits in this Sessions Court action and holding herself out as a Board member and chairman of the Malayan Sangam and President of The Board of Trustees of the Temple. [26] The Board of Trustees of the Temple as the Plaintiff there had sought the determination of the High Court in the 2012 OS on the following question:

Whether the Plaintiff, pursuant to the State of Selangor Enactment No. 8 of 1941 is entitled to the ownership and management of the Hindu Temple known as the Ahthi-Eeswaran Temple with an address at Lorong Timur, Off Jalan Sentul, 51000 Kuala Lumpur. [27] The determination and related reliefs were sought then because the Malayan Sangam in breach of the Enactment, began asserting 10 management and control of the Temple. The directors of the Malayan Sangam had taken upon themselves to change the locks of the Temple office and interfered with the day to day management and control of the Temple. [28] The High Court ruled in favour of the Plaintiff, The Board Trustees of the Temple, and answered the question for determination in the affirmative and further granted an order in terms of the reliefs prayed for including prayers (i), (ii), (iii) and (iv) of the 2012 OS as follows: i) A declaration that the Plaintiff is the lawful body responsible for the ownership, management and maintenance of the Temple; ii) An injunction restraining the Defendants from holding themselves out to the public as the lawful body responsible for the ownership, management and maintenance of the Temple; iii) An injunction restraining the Defendants from trespassing on the part of the Temple specifically reserved for the Plaintiff as the owners of the said Temple subject to the rights of the 1st Defendant as enshrined in section 7(iii) of the Enactment; iv) An injunction restraining the Defendants from Managing and/or using the assets, finances and other property of the Temple. 11 [29] The High Court further granted damages of RM1,000.00 to be paid individually by the 2nd, 3rd and 4th Defendants. The said Defendants were also ordered jointly to pay costs of RM10,000.00. There was further a penal endorsement under Order 45 rule 7(4) of the ROC 2012 against the Malayan Sangam and the Defendants there including Rasamalar a/p Gnansundram. [30] It was further argued by learned counsel Miss Rathimalar of Messrs Rathi MG Associates, who also appeared for the Defendants there that The Board of Trustee of the Temple did not have the locus standi to commence the action because it was wrongly constituted in that the members of The Board of Trustees bringing the action were not the lawful members of The Board of Trustees. The Board of Trustees of the Temple who were the Plaintiff in the 2012 OS was represented by Mr Chetan Jethwani of Messrs Kumar Partnership who is also the counsel for The Board of Trustees of the Temple here. [31] In determining whether The Board of Trustees of the Temple had been properly constituted the High Court had traced the history of the composition of the Board of Trustees of the Temple from 1991 up to the time of delivery of the judgment on 22.1.2014. The High Court in the 2012 OS observed as follows: 12 “36. The Defendant also questions the locus standi of the Plaintiff to bring this action arguing that the Plaintiff is not validly constituted and as such has no locus to commence this action. This Court finds that this argument cannot be sustained. The Plaintiff, vide the Plaintiff’s Affidavit in Reply, has explained how the membership of the Plaintiff has changed over time since the filing of the 1990 Suit. In essence, from the time of the 1990 Suit, due to the resignation or death of certain manners, these member were then replaced, culminating in the present composition of the Plaintiff. The current membership of the Plaintiff has been communicated to the Attorney-General. In view of the finding in the High Court in the 1990 Suit as regards the composition of the Plaintiff and the 2009 Suit as to the rightful status and position of the Plaintiff, the Defendants’ argument that the Plaintiff has not been validly and constitutionally set up holds no water.” (emphasis added) [32] As alluded to in this 2012 OS, there were previously a 1990 Suit and a 2009 Suit on this matter. [33] The High Court in the 2012 OS had also held as follows: 13 “29. And it is the Court’s finding that since section 7(ii). [of the Enactment] provides that the property and assets of the 1st Defendant [Malayan Sangam] shall be deemed to have been lawfully transferred to and shall vest in the Plaintiff, the Plaintiff is therefore entitled to the relief claimed. For ease of reference section 7(ii) is reproduced and reads as follows:

(ii) Upon the coming into force of this Enactment all the property and assets of the Malayan Shiva Sidthanta Sangam (a Company not for profit but limited by guarantee incorporated and registered in the Federated Malay States) shall be deemed to have been lawfully transferred to and shall vest in the Board together with all rights and interests of the said company in and over the Temple lands and the Temple and the Board shall thereupon become liable to pay all the debts then lawfully due from and owing by the said Company.” [34] Malayan Sangam had appealed to the Court of Appeal and after a full hearing on the merits, the Court of Appeal dismissed the appeal. [35] Hardly had the ink dried with respect to the decision of the 2012 OS delivered on 22.1.2014, Miss Rathimalar had on July 2015 launched another Civil Suit in the 2015 Suit purportedly on behalf of the Board of Trustees of the Temple as the 1st Plaintiff and the Malayan Sangam as 14 the 2nd Plaintiff and naming some 8 individuals as the Defendants including the persons held by the High Court in the 2012 OS as the lawful members of The Board of Trustees of the Temple i.e.: a) Prof. Emeritus Dato’ Dr N Visweswaran (President) (5th Defendant-D5); b) Mr. Nadasapilkay a/l V Kailasapillay (7th Defendant - D7); c) Mr. N. Ramachandran (6th Defendant-D6). [36] Again the Defendants applied to strike out the 2015 Suit predicated on the following grounds that: a) Messrs Rathi MG Associates were not authorized by the lawful Board of Trustees of the Temple to commence this action; b) The Malayan Sangam has no locus standi to commence this action and c) In all the circumstances, this Suit is a manifestation of an abuse of process. [37] The High Court in the 2015 Suit could not have been clearer where the issue of the proper party to bring an action with respect to matters of ownership, management and maintenance of the Temple is concerned. Justice Nantha Balan in his decision of 7.12.2015 categorically held as follows: 15 “57. In my view, the ruling by the Court in OS 1991 [corresponding to our 2012 OS] makes it crystal clear that the Board of Trustees of the Temple is the lawful body responsible for the ownership management and maintenance of the Temple and Sangam’s role is only limited to the extent as prescribed by section 7(iii) of the Enactment.” For the sake of interest and completeness section 7(iii) of the Enactment is reproduced below: “After this Enactment has come into force every member of the said Malayan Sangam Saiva Sidhanta Sangam who has paid or on whose behalf has been paid to the Board a subscription at the rate of one dollar a month shall, during the period to which such subscription relates and subject to such rules as may be lawfully made by the Board, be entitled to the use and enjoyment of the Temple and its amenities and the said Sangam shall, subject to the said rules, be given all reasonable accommodation and facilities necessary for the carrying on of their activities.” [38] As can be seen nothing turns on this innocuous provision and certainly nothing on the composition of The Board of Trustees of the Temple. 16 [39] The High Court in the 2015 Suit went on to conclude clearly and categorically as follows at paragraph 64 as follows: “64. …Further Sangam also lacks the requisite locus standi to file this suit for and on behalf of the Temple, as all such authority is only vested only with the lawful Board of Trustees of the Temple.” [40] There was no appeal against the decision in this 2015 Suit. [41] The concern that only the owner can sign the plans and full address of the owner has to be stated in the light of By-laws 7 of the Building (Federal Territory of Kuala Lumpur) By-Laws 1985 is misplaced. It reads: “7. Plans to be signed. All plans submitted shall be signed by the principal submitting person or submitting person and by the owner or his agent and shall bear the full address of the owner.” [42] As can be seen the plans may be signed by the owner or his agent. In the light of section 7(ii) of the Enactment whereby all the property and assets of the Malayan Sangam shall be deemed to have been lawfully transferred to The Board of Trustees of the Temple, it is the Board of Trustees of the Temple that is vested with the authority to sign all relevant plans and shall take all consequences that may arise from the non-submission. 17 [43] The Plaintiffs had pivoted their case on the premise that the Agreement engaging the Defendant as Contractor is illegal as there has been no prior approval of a renovation works by DBKL and no plans drawn up by a registered Architect has been submitted to DBKL. [44] The Plaintiffs submitted through their learned counsel that the purported Agreement is illegal under Section 24 Contracts Act 1950 and said that this Court must take notice of illegality once pleaded and not to strike out the claim. As support for the above proposition learned counsel referred to the case of Merong Mahawangsa Sdn Bhd & Anor v Dato’ Shazryl Eskay bin Abdullah [2015] 5 MLJ 619 where the Federal Court held as summarized in the head notes as follows:

The courts are bound at all stages to take notice of illegality, whether ex facie or which later appears, even though not pleaded, and to refuse to enforce the contract; China Road & Bridge Corp & Anor v DCX Technologies Sdn Bhd and another appeal [2014] 5 MLJ 1 referred (see para 35).

A contract may be good under s 2 of the Act but yet bad under s 24 of the Act. It is wrong in law to uphold an illegal contract from the aspect and on the basis of s 2 of the Act. Whenever the illegality of a contract is raised or become apparent, it is the duty of 18 the court to take it up, by reference to s 24 of the Act (see para 69). [45] I do not doubt the above proposition for a moment but the context of that is where the party raising illegality is a party to the contract. Not so here where a stranger to the Agreement seeks reliefs from the Court. [46] Even if there is illegality here it is not for any busybody to bring this action but the body authorized by the said Enactment which is the lawful Board of Trustees of the Temple and not the Malayan Sangam that has the locus standi to commence the action. [47] This Court would not allow a matter that had been decided by a previous court with precision and finality to be regurgitated and re-litigated again ad nauseum when it has not been shown any material change of circumstance surrounding the same factual matrix. [48] To do so would be to encourage a litigant to continue to fan the flame of litigation hoping that it would succeed in a differently constituted panel and perchance to keep the issue alive even if it be by reframing it to make it not so obviously alike to the previous cases and so as not to offend the doctrine of res judicata. [49] This Court would of course look beyond the labels to the substance of the dispute and more so when the same solicitors and 19 counsel have been involved in the previous actions that had decided with precision and finality on the issue. [50] I need go no further than to refer to the dicta of the Court of Appeal in Hartecon JV Sdn. Bhd. & Anor v Hartela Contractors Ltd. [1997] 2 CLJ 104 where the Court states as follows at pages 113-114: “If authority is needed for the proposition which has commended itself to us, it is to be found in Government Of Malaysia v Dato Chong Kok Lim [1973] 2 MLJ 74 which was drawn to the attention of Counsel during argument and in which there appears the following passage in the judgment of Sharma J (at p. 76): In Satyadhyan Ghosel and others v Sint Deorajin Dobi Another AIR [1960] SC 941, the statement of the law on the subject is given thus: The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall be not adjudged again. Primarily it applies as between past litigation and future litigation. When a matter - whether on a question of fact or a question of law - has been decided between two parties in one suit or proceeding and the decision 20 is final, either because no appeal was taken to a higher Court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. This principle of res judicata is embodied in relation to suits in s. 11 of the Code of Civil Procedure; but even where s. 11 does not apply, the principle of res judicata has been applied by Courts for the purpose of achieving finality in litigation.The result of this is that the original Court as well as any higher Court must in any future litigation proceed on the basis that the previous decision was correct. The principle of res judicata applies also as between two stages in the same litigation to this extent that a Court, whether the trial Court or a higher Court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings. A decision given by a Court at one stage on a particular matter or issue is binding on it at a later stage in the same suit or in a subsequent suit. (See Peareth v Marriott [1883] 22 21 Ch. D. 182, Hook v Administrator-General of Bengal and Others LR 48 IA 187 and In the Matter of the Trusts of the Will of Tan Tye (Deceased) Yap Liang Neo v Tan Yew Ghee and Another [1936] MLJ 141, 147- 151). Parties cannot raise a second time in the same suit an issue that has already been determined either expressly or by necessary implication. (See Louis Dreyfus v. Aruna Chalayya LR 58 IA 381). ” (emphasis added) [51] To allow the 1st Plaintiff, Malayan Sangam to canvass the same issue again on its locus to bring an action on a matter relating to the ownership, management and maintenance of the Temple would be to allow the 1st Plaintiff to re-litigate the matter in blatant disregard of the principle of res judicata. Having lost the appeal to the Court of Appeal in the 2012 OS and having failed to appeal against the decision in 2015 Suit the 1st Plaintiff would have to accept that it has no locus to bring this action of an injunction against the Defendant contractor lawfully appointed by The Board of Trustees from carrying out the renovation works in the Temple. [52] The Plaintiffs have tried to position its claim on the basis that DBKL has directed the 1st Plaintiff to submit plans for its approval before any renovation, changes and additional works are done on the Temple. One does not expect DBKL to have a knowledge of the history of the 22 relationship between the still registered owner of the Temple land and the provision of section 7(ii) of the Enactment where the land and assets of the Malayan Sangam “shall be deemed to have been lawfully transferred to and shall vest in The Board of Trustees of the Temple together with all rights and interests of the Malayan Sangam in and over the Temple lands and the Temple and The Board of Trustees of the Temple shall thereupon become liable to pay all the debts then lawfully due from and owing by the Malayan Sangam.” [53] It is for the Malayan Sangam to bring this to the notice and attention of DBKL and not to take another opportunity to launch a further collateral attack on 2 recent previous judgments of the High Court in the 2012 OS and the 2015 Suit. [54] The Board of Trustees of the Temple through their counsel, Mr Chetan, had explained that the said DBKL’s letter was only a reminder that a registered Architect ought to be engaged to submit renovation plans and that at the moment the renovation has not reached the stage of additional works. [55] I am more than satisfied that to allow this suit to continue further in the Sessions Court would be to allow the 1st Plaintiff to abuse the process of the Court and that the suit by the 1st Plaintiff ought to be 23 struck out at this stage. In Malaysia Building Society Bhd v Tan Sri General Ungku Nazaruddin Ungku Mohamed [1998] 2 CLJ 340 at page 352 the Court of Appeal observed as follows: “Every person who is aggrieved by some wrong he considers done him is at liberty to invoke the process of the court. Equally may a litigant invoke the process to enforce some claim which he perceives he has against another. When however, the process of the court is invoked, not for the genuine purpose of obtaining the relief claimed, but for a collateral purpose, for example, to oppress the defendant, it becomes an abuse of process. Where the court's process is abused, the proceedings complained of may be stayed, or if it is too late to grant a stay, the party injured may bring an action based on the tort of collateral abuse of process.” (emphasis added) [56] Clearly while couching and crafting it as a action to avoid the sanction of DBKL to impose fines for commencing works without proper approval of plans, it was calculated to revive a fresh litigation on the locus to bring an action with respect to the ownership, management and maintenance of the Temple in the continuing saga of the strife of 2 factions for control of the Temple. 24 [57] This must stop or else the previous 2 recent judgments of the High Court would have been in vain! Whether the said solicitors for the Plaintiffs Messrs Rathi MG Associates have no authority to act for the Second Plaintiff [58] A challenge the authority of counsel or solicitors to act for a party may be brought at any stage of the proceedings and not necessarily by way of a formal application. [59] In the case of Syawal Enterprise Sdn. Bhd. & Anor. v Dayadiri Sdn. Bhd [1990] 3 CLJ Rep 165 at page 167 the High Court held as follows: “The lack of authority of the solicitors to act can be challenged at any stage of the proceedings - See Simmons v Liberal Opinion Ltd. [1911] 1 KB 966 followed in Re L.Y. Swee & Co. Ltd. [1968] 2 MLJ 104 at 107 and in Chin Kok Kwong Const. Sdn. Bhd. v Sunrise Towers Sdn. Bhd. [1986] 2 MLJ 41 at 42. The challenge having been made the burden of proving that the suit had been instituted with proper authority rests on the plaintiff company. See United Investment & Finance Ltd. v Tee Chin Yong & Ors. [1967] 1 MLJ 31 at 35”. 25 [60] In the application of the Defendant to strike out the Plaintiffs’ claim, the Defendant had exhibited in Exhibit M 2 at page 30 of the Appeal Record Volume 1 a letter from The Board of Trustees of the Temple addressed to the Defendant and signed by one Mr.K Nadasapillay as a member of The Board of Trustees of the Temple dated 9.7.2016 as follows: “We hereby confirm that we have engaged you to carry out refurbishment work at Ahthi-Eeswaran Temple. We have not engaged Messrs Rathi MG Associates or any other to act on our behalf on the above action. Our counsel is Kumar Partnership. It appears that the Plaintiff is an imposter claiming to be a trustee of the Ahthi-Eeswaran Temple.” [61] The caption of the said letter referred to the Sessions Court Suit number and the names of the parties. [62] The said Mr K Nadasapillay is one of the Trustees as so held by Justice John O’Hara in the 2012 OS at paragraphs 23 and 24 of the said judgment. [63] Perhaps the boldness of the said Trustee in castigating the act of the alleged Board of Trustees of the Temple as that of an imposter 26 stems from the fact that in the 2015 Suit Justice Nantha Balan had categorically held as follows: “51. The main question here is whether Messrs Rathi MG have been duly authorized by the lawful Board of Trustees of the Temple to initiate this suit.

The connected question that naturally arises is with regards to the composition of the Board of Trustees of the Temple and the question of the Sangam’s locus standi to file this action in respect of the affairs of the Temple.

The view that I have formed as regards the composition of the Board of Trustees of the Temple is that the lawful Board of Trustees of the Temple, is the Board of Trustees comprising of D5, D6 and D7 and two others namely Dato’ T Selvanthiranathan and K. Satkunabalan (who has since ceased to be a member).

In this regard, I am particularly mindful that the recognition of these persons as lawful members of The Board of Trustees of the Temple was granted by the High Court in OS 1991 [corresponding to our 2012 OS] which also granted injunctions against the Sangam (Second Plaintiff herein) and against Rasamalar 27 Gunasundram and Krishna Kumar Kumarakulasajan, whom the present Plaintiffs claim are part of the alleged Board.

In view of the Order dated 22 January 2014 in OS 1991 [corresponding to our 2012 OS], the arguments put forward by the present Plaintiffs inter alia that membership of the Sangam is a pre-requisite to membership of the Board of Trustees of the Temple or that the Sangam decides as to who sits on the Board of Trustees of the Temple or that the Board of Trustees of the Temple is regulated by the Sangam, are plainly untenable.

If, as the Plaintiffs contend, the Sangam is the appointing or regulating authority for the Board of Trustees, then surely the injunction order against the Sangam in OS 1991 [corresponding to our 2012 OS] contradicts that position.” (emphasis added). [64] D7 as stated earlier in the judgment is Mr K Nadasapillay who signed the said letter of The Board of Trustees of the Temple confirming for the Defendant that he was lawfully engaged to do the refurbishment works of the Temple. [65] Mr K Nadasapillay also signed as a Trustee, the Agreement between The Board of Trustees of the Temple and the Defendant as Contractor dated 22.1. 2016 exhibited as Exhibit M 3 in the Defendant’s 28 Affidavit in Support at pages 32-38 of the Appeal Record Volume 1. The other Trustee who signed the said Agreement is D5 referred to in the 2015 Suit. [66] Learned counsel for the Plaintiffs, Miss Rathimalar had argued that the existence of the signatories and witnesses at page 38, the signing page of Agreement, is suspicious. She further argued that the full name and their NRIC numbers are not disclosed and that these are issues for determination at trial. [67] With respect, I do not think so. The core of the complaint is not the doubt as to which Trustees had signed the Agreement appointing the Defendant. It is that the Malayan Sangam as the 1st Plaintiff had claimed that the following persons constituted The Board of Trustees of the Temple and are the lawful Trustees to authorize the filing of the 2015

Rasamalar a/p Gnansundram,

Kulaveerasingam a/l Ayampillai,

Tan Sri Dr. Ampikaipakan S Kandiah and

Krishna Kumar a/l Kumarakulasingam. [68] Miss Rathimalar submitted that the 2nd Plaintiff had duly informed the Attorney General on 11.1.2016 that the members of The Board of 29 Trustees of the Temple are the four persons listed above. However that is a self serving document and in contradistinction to the decision of the High Court in the 2015 Suit on who constituted the Board of Trustees of the Temple. [69] Further the High Court in the 2012 OS had granted an injunction against Rasamalar a/p Gnansundram and Krishna Kumar a/l Kumarakulasingam who were the 3rd and 4th Defendants in the 2012 OS from holding themselves out to the public as lawfully responsible for the management and maintenance of the Temple. [70] The High Court in the 2015 Suit at paragraph 53 of the said judgment had held the following persons to be the lawful members of the

Prof Emeritus Dato’ Dr. N Visweswaran (D5),

Dato’ T. Selventhiranathan;

Mr. Nadasapillay a/l V Kailasapillay (D7) and

Mr. N. Ramachandran (D6). [71] Miss Rathimalar submitted that a trial is necessary as the Agreement appointing the Defendant as Contractor by the Board of Trustees of the Temple is suspect. Surely if there were suspicious circumstances with respect to the appointment of the Defendant as 30 Contractor, one would have expected a police report to be lodged. A mere assertion of the Agreement being suspicious without more would not constrain this Court to allow the Suit to proceed to trial especially against the backdrop of issues that had been decided with precision and finality by the 2012 OS and 2015 Suit. [72] More specifically and seriously on the authority of counsel Miss Rathimalar of Messrs Rathi MG Associates to act for the lawful Board of Trustees of the Temple, Justice Nantha Balan’s censorious conclusion at paragraph 64 reads as follows: “64 In the result, the lawful Board of Trustees is the one which was recognized and validated by the Court by way of order dated 22 January 2014 in OS 1991 [corresponding to our 2012 OS]. As such, since the lawful Board of Trustees of the Temple have not authorised Messrs Rathi MG to file this action, I hold the firm of Messrs Rathi MG had no authority to file this suit on behalf of the Board of Trustees of the Temple…” (emphasis added) [73] The High Court in Suit 2015 struck out the Plaintiffs action and the bitter pill to swallow for Miss Rathimalar was that the High Court also ordered her to personally pay costs of RM3,500.00 to the Defendants there. I can appreciate the exasperation of learned counsel for lawful 31 Board of Trustees of the Temple, Mr Chetan Jethwani. I agree that the lawful Board of Trustees of the Temple is being undermined by the continuous, unceasing litigation wrought in its name by the 1st Plaintiff. The Board of Trustees of the Temple on whom is vested the ownership, management and maintenance of the Temple, is intent on carrying out renovation works. That cannot be frustrated by the 1st Plaintiff in a collateral attack in an action against the Defendant as Contractor. I am more than satisfied that the Defendant has been validly appointed by the lawful Board of a Trustee of the Temple. [74] The Defendant, as Contractor, was caught in between this tussle and conflict between 2 factions of the Temple. Fortunately the dust of the conflict has settled with the 2 recent actions in the 2012 OS and the 2015 Suit. To allow the same issues to be resuscitated and resurrected under the guise of a separate action against the Defendant as Contractor would be to allow the Plaintiffs and their solicitors and counsel to proceed with impunity against all known principles of res judicata. The bones of contention ought to be interned by the grounds of judgment in the 2012 OS and 2015 Suit and now with this judgment of the Court. [75] Indeed as pointed out by Mr Chetan, two of the persons whom the 1st Plaintiff claimed constitute the Board of Trustees of the Temple are 32 defendants in the 2012 OS and were specifically restrained by order of court from asserting management and control of the Temple, i.e. Miss Rasamalar Gnanasundram as the 3rd Defendant there and Mr Krishna Kumar Kumarakulasajan as the 4th Defendant. [76] What is more inexplicable is that the counsel and solicitors having conduct of this matter is also the counsel and solicitors who handled the 2012 OS and 2015 Suit. [77] There is thus no dispute as to the properly constituted Board of Trustees of the Temple that would necessitate a trial to determine. To allow that would be to allow the Plaintiffs to undermine the 2 previous judgments of the High Court. [78] There is also no doubt that Miss Rathimalar and the firm of Messrs Rathi MG Associates were not instructed by the properly constituted Board of Trustees of the Temple and thus she and the firm have no authority to act for The Board of Trustees of the Temple as the 2nd Plaintiff. Pronouncement [79] I would be similarly impelled to allow the striking out of the Suit of both the 1st Plaintiff the Malayan Sangam and that of the 2nd Plaintiff brought without the authority of The Board of Trustees of the Temple. 33 Therefore I had allowed the appeal of the Defendant as the Appellant here with costs of RM3,000.00 to be paid by the 1st Plaintiff to the Defendant and costs of RM5,000.00 to be paid by counsel Ms Rathimalar of Messrs Rathi MG Associates to the Defendant. [80] The deposit of appeal shall be refunded to Defendant/Appellant. [81] As a postscript this judgment was written after the Plaintiffs as Respondents in this appeal had applied for and obtained leave from the Court of Appeal to file appeal. Dated: 21 September 2017. - signed - LEE SWEE SENG Judge Construction Court High Court Kuala Lumpur For the Appellant : G. Suresh (Messrs G. Suresh Ayangar & Associates) For the Respondents : Rathimalar (Messrs Rathi MG Associates) 34 For Intervener : Chetan Jethwani (Messrs Kumar Partnership) Dates of Decision: 23 January 2017