Mohd Rozi bin Sulaiman v Sivananthan a/l Pavadare (24NCVC-425-05)

This case concerns the procedure that is available to a person who purchases a property at an auction to obtain vacant possession of the same from the original owner. 2

The facts are not in dispute. The plaintiff had purchased an apartment at Seri Perantau Apartment, Kuala Klang, Port Klang at an auction held on 28 June 2019, for RM70,000.00 pursuant to a proclamation of sale issued by MBSB Bank Berhad (“the Bank”). The Bank auctioned of the property belonging to the defendant, the original purchaser, as he had defaulted in his loan repayments.

Clause 15.0 of the Proclamation of Sale was in these terms:

15.1 The purchaser shall upon full payment of the Balance Purchase Price together with all interest on late payment (if any) be entitled at his/her own costs and expenses take possession of the property.

15.2 BANK BERHAD shall not be under any obligation whatsoever to deliver vacant possession of the property or forward to the Purchaser or any party/parties any keys to the property.

On 16 October 2019, the plaintiff paid the full purchase price of RM70,000.00 to the bank.

By letter dated 12 March 2020, the plaintiff’s solicitors gave notice to the defendant to quit and deliver vacant possession of the apartment within 14 days of the receipt of the letter. The defendant ignored the notice. On 22 May 2020, the plaintiff instituted this action claiming against the defendant, inter-alia, a 3 declaratory order that possession of the apartment be delivered to him and damages. The action was founded under the Proclamation of Sale and section 7 of the Specific Relief Act 1950 (“SRA”).

Counsel for the defendant strenuously resisted the application. His sole objection was that the plaintiff had relied on the wrong provision of the law to seek possession. It was his contention that the summary procedure under section 7 SRA for an order of possession can only be invoked by a landlord to obtain possession of his premises from a tenant holding over. Counsel applied for the plaintiff’s application to be dismissed as the plaintiff was neither the defendant’s landlord and nor was the defendant a tenant holding over.

Responding to the defendant’s argument, counsel for the plaintiff argued that the defendant’s submission was misconceived as the present application was not premised on subsection (2) but subsection (1) of section 7 SRA. He submitted that subsection (1) is a general provision and a standalone provision and was not limited by subsection (2) which applied to tenants holding over citing the case of Abad Arena Juara Sdn Bhd v Rajesh a/l Jaikishan [2019] 6 MLJ 607 in support of this proposition.

In view of the rival submissions, it is necessary to examine section 7 of the SRA. It provides: 4 Recovery of specific immovable property

Subject to subsection (2), a person entitled to the possession of specific immovable property may recover it in the manner prescribed by the law relating to civil procedure.

Where a specific immovable property has been let under a tenancy, and that tenancy is determined or has come to an end, but the occupier continues to remain in occupation of the property or part thereof, the person entitled to the possession of the property shall not enforce his right to recover it against the occupier otherwise than by proceedings in the court.

In subsection (2) 'occupier' means any person lawfully in occupation of the property or part thereof at the termination of the tenancy.

In my view, the meaning of section 7 is clear. In my judgment, the inclusion of the expression “subject to subsection (2)” in subsection (1) demonstrates that it is not an independent provision and is not intended to stand on its own as suggested by the plaintiff. The effect of this expression is that the scope, application, operation, effect or implication of subsection (1) is bound, restricted or limited by subsection 5

(2). I find support for my view in the decisions in Government of the Federation of Malaya v Surinder Singh Kanda [1961] MLJ 11 and Lee Nyan & Bros Sdn Bhd v Metro Charm Sdn Bhd [2009] 6 MLJ 1.

I turn next to consider the case of Abad Arena Juara Sdn Bhd v Rajesh a/l Jaikishan (at [7]) cited by the plaintiff. There, the plaintiff sought vacant possession of a property he had purchased at a public auction. The defendant was the tenant of the previous owner. The plaintiff filed an originating summons to recover vacant possession and double rental. The intitulement merely refered to the execution file number and the public auction, and without reference to the Act or Rules under which the Court was being moved for vacant possession and damages. Both the High Court and sessions court decided in favour of the plaintiff and granted vacant possession notwithstanding. In allowing the appeal, the Court of Appeal observed: “Based on the intitulement in the instant case, as owner of the land, the respondent can only get vacant possession and damages if any, if the occupier of the land does not vacate the land upon reasonable notice given according to law. To obtain vacant possession, the relevant Act and/or rules according to specific facts of each case may be s 7 of the Specific Relief Act 1950 and/or O 89 of the RC 2012 or other provisions of the law. The Act or Rules were also not intituled. In our view, it is fatal 6 and the court should not proceed with the hearing of the OS without appropriate intitulement unless the issue was not brought to the attention of the court. The court must endeavor to ensure compliance of the Rules. Condoning non-compliance by court for expediency when no party will be affected is permissible, otherwise, the court has a duty to ensure compliance of the Rules of Court and/or other provisions of the law.”

I find nothing in this case that supports the plaintiff’s contention that section 7 SRA is not confined to landlord and tenant cases. The case establishes that the question of whether the legal owner can move the court either under section 7 of the SRA and/or Order 89 of the ROC for an order for vacant possession would depend on the status of the person occupying his property.

In the premises, it is clear that the plaintiff cannot move the court for an order of possession under section 7 SRA unless he is a landlord. I accept the submission of the defendant that the summary procedure to seek an order for possession under section 7SRA is only available to landlords for the recovery of property occupied by tenants whose tenancies have come to an end. The plaintiff has invoked the wrong provision of the law to seek vacant possession in the instant case. 7

The question then arises, should the court dismiss the application on the ground that the plaintiff has moved the court under the wrong provision of the law. It is not in dispute that the plaintiff has purchased and paid the bank the full purchase price for the apartment. In law, the plaintiff becomes the legal owner of the apartment on the payment of the purchase price to the bank and is entitled to immediate possession of the same either upon the service of the notice to quit or the issuance of the originating summons. The defendant has become a trespasser or at best, a bare licensee. His licence is revocable. Being revocable, and having been in fact revoked in this case, either by the service of the notice to quit or by the issuance of the originating summons, he cannot deny the plaintiff’s right to possession.

The plaintiff cannot be precluded from asserting his legal right as the current owner as the defendant’s right to occupy the apartment came to an end when the plaintiff paid the full purchase price due under the auction and served on the defendant the notice to quit. The defendant cannot assert a continuing right to remain in occupation. He cannot continue to reside indefinitely in the apartment.

Th defendant’s position either as trespasser or bare licensee would have entitled the plaintiff consequently to seek possession under Order 89(1) Rules of Court

Order 89 (1) is in these terms: 8 “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.”

I do not think the defendant would be substantially prejudiced if the present application is treated as an application under Order 89 instead of section 7. It is not open to the defendant to deny knowledge that he has lost the right to occupy the apartment. The plaintiff is entitled to possession as the defendant is in unlawful possession. I fail to see that the justice of the case demands that the application be dismissed merely on the ground that the wrong provision of the law has been invoked when there is no other meritorious defence.

I accept that where the liberty of a person is at stake, as in the case of criminal proceedings, strict compliance with procedure is mandatory and cannot be condoned. In civil cases, non compliance need not be fatal unless it would cause substantial injustice or prejudice to a litigant. Needless to say, the court will always be vigilant and anxious to ensure a litigant has not been unfairly deprived of an opportunity to present his case. The court should also be mindful of not allowing unmeritorious defendants to escape liability on account of procedural objections. 9 As noted earlier, there is no serious injustice to the defendant if the application is treated as an application under Order 89 ROC.

It is well settled that though a licence may be revoked, the licensee is not instantaneously turned into a trespasser; he or she must be given time, reasonable in all the circumstances, in which to remove himself or herself and his or her belongings from the house in respect of which the licence operated. In the instant case, the property was auctioned off in June 2019, and the defendant has had more than reasonable time to find alternative accommodation.

In the circumstances, I therefore grant the declaratory order sought by the plaintiff. I further order that the defendant deliver vacant possession of the apartment to the plaintiff forthwith and order that damages are to be assessed by the SAR and paid by the defendant. Dated: 24 February 2021 (S.M KOMATHY SUPPIAH) Judge High Court of Malaya Shah Alam Date of Decision : 30 November 2020 10 Solicitors: For the Plaintiff: Baskaran a/l Aruchanan, [Messrs A. Baskaran & Co.] For the Defendant: Muhammad Zahir Sanjay bin Abdullah, [Messrs Muhammad Zahir]