Muhammad Asrar Bin Abdul Samad v Amalina Binti Mohammad Sani (MA-22NCvC-39-10/2025)

AMALINA BINTI MOHAMMAD SANI (No. K/P : 870704-66-5094

MOHAMMAD SANI BIN ABDULLAH (No. K/P : 500312-71-5429) ... ... DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT (Enclosure 15: the Plaintiff's application under Order 13 of the Rules of Court 2012 for leave to enter judgment in default of appearance) A. INTRODUCTION [1] Before the Court is the Plaintiff's application by notice of application (Enclosure 15), brought under Order 13 of the Rules of Court 2012, for leave to enter judgment in default of appearance against the First and Second Defendants in the terms of the reliefs endorsed on the Statement of Claim (Enclosure 2). The application is supported by the affidavit of the Plaintiff, Muhammad Asrar bin Abdul Samad, affirmed on 9 March 2026 (Enclosure 16), to which are exhibited MAAS-1 to MAAS-8. Neither Defendant has entered an appearance, and the application is unopposed. [2] The procedural posture is short. The Writ and Statement of Claim were filed on 16 October 2025 and, according to the affidavit of service (exhibit MAAS-8), served personally on both Defendants on 27 October 2025 (although the Certificate of Non-Appearance records service on 10 November 2025, a discrepancy addressed below). The affidavit of service was filed on 11 November 2025. The present application was filed on 10 March 2026. No memorandum of appearance has been entered by either Defendant. [3] The reliefs sought are not confined to a money claim. As against the First Defendant, the Statement of Claim seeks a declaration that the sale and purchase agreement dated 20 March 2023 is void for the First Defendant's breach, restitution of the purchase price of RM500,000, an order described as agreed damages, and the re-conveyance of one parcel of land; in the alternative, a declaration that the Plaintiff is entitled to an adjoining parcel together with a vesting order directing execution of a memorandum of transfer in Form 14A. As against the Second Defendant, the claim is for arrears of rent under a tenancy. [4] Because the Defendants have not appeared, the controversy is not whether the Plaintiff's account is contradicted. The question that the application raises is anterior, and one of principle: where a defendant is in default of appearance, what may the Court enter, and on what footing, when the claim is not a simple money claim but seeks declaratory, restitutionary and equitable relief founded on allegations of misrepresentation and fraud. That question, and its application to each Defendant separately, lies at the centre of this application. [5] The issues are accordingly these. First, whether the procedural conditions for invoking Order 13 are satisfied. Second, into which rule of Order 13 the claim against each Defendant falls, and what consequence the classification carries. Third, the extent, if any, to which judgment may be entered against each Defendant on the affidavit evidence as it stands. Fourth, the proper treatment of the claims for interest and costs. B. MATERIAL FACTS AND PROCEDURAL HISTORY [6] The facts material to this application are taken from the Statement of Claim (Enclosure 2) and the supporting affidavit (Enclosure 16) with its exhibits. They are set out chronologically. As the Defendants have not appeared, the account is, for present purposes, that deposed to by the Plaintiff; nothing in this section is to be read as a finding. [7] According to the Statement of Claim and the Plaintiff's supporting affidavit, in or about March 2023 the Plaintiff agreed to purchase from the First Defendant a bungalow described as No. 898-1, Jalan Padang Temu, 75050 Melaka. A sale and purchase agreement dated 20 March 2023 was executed at a stated purchase price of RM500,000 (exhibit MAAS-1). The Plaintiff further pleads and deposes that following completion of the transaction, he was registered as proprietor of the land held under GMM 935, Lot 891, Mukim Padang Temu, Daerah Melaka Tengah (exhibit MAAS-2) ("Lot 891"). [8] The Plaintiff further pleads and deposes that on 15 August 2023 he entered into a tenancy agreement with the Second Defendant, who is described in the pleadings as the father of the First Defendant, at a monthly rental of RM3,800. The Statement of Claim and supporting affidavit describe the tenancy as running for a period of two years commencing in August 2023 and ending in July 2025 (exhibit MAAS-3). The Plaintiff further deposes that the Second Defendant ceased paying rent from December 2023 and that rental arrears remain outstanding. [9] The Plaintiff further deposes that he subsequently learned that the bungalow stands on two adjoining parcels: Lot 891, which had been transferred to him, and the land held under GMM 934, Lot 890, Mukim Padang Temu, Daerah Melaka Tengah ("Lot 890"), which remains registered in the First Defendant's name. He relies on a land search for Lot 890 (exhibit MAAS-4) and a building plan said to show the bungalow straddling both parcels (exhibit MAAS-5). [10] The Statement of Claim pleads, at paragraph 11, particulars of misrepresentation, and at paragraph 12, particulars of fraud, to the effect that the First Defendant represented the bungalow to stand on a single parcel while knowing it stood on two, annexed only one title to the agreement, and thereby induced the Plaintiff to purchase and pay for a complete bungalow when only part of the land beneath it was conveyed. [11] By a solicitor's letter dated 24 March 2025 (exhibit MAAS-6), the Plaintiff demanded, among other things, that the First Defendant transfer Lot 890 to him or alternatively refund RM500,000, together with rental arrears stated by the Plaintiff to amount to RM57,000 as at March 2025 and agreed damages stated by the Plaintiff to amount to RM20,000, making a total demand of RM577,000. The Plaintiff thereafter instructed solicitors to commence the present action (exhibit MAAS-7). The Plaintiff's application and supporting affidavit assert that the writ and Statement of Claim were personally served on both Defendants on 27 October 2025 and that the affidavit of service was filed on 11 November 2025. However, the Certificate of Non-Appearance records service on 10 November 2025 and filing of the affidavit of service on 11 November 2025. No memorandum of appearance has been entered by either Defendant. [12] Two features of the reliefs claimed should be recorded at this stage, without resolution. First, while paragraph 15 of the Statement of Claim and paragraph 12 of the supporting affidavit both fix the agreed damages at RM20,000, prayer 1(ii) of the Statement of Claim claims agreed damages of RM400,000. Second, prayer 3 claims rent arrears of RM68,400, described as eighteen months from December 2023 to July 2025, whereas that period, taken inclusively, spans twenty months. The significance of these features is considered in the analysis. C. ISSUES FOR DETERMINATION [13] The following issues arise:

whether the conditions for invoking Order 13, namely due service, default of appearance, the expiry of the time limited for appearing, and the proof required by the Order, are satisfied;

into which rule of Order 13 the claim against each Defendant falls, and what consequence follows from that classification;

as against the First Defendant, whether judgment may be entered in default for the declaratory, restitutionary and equitable relief and the agreed damages claimed, or whether the claim must be proved;

as against the Second Defendant, whether final judgment may be entered for the rent arrears as a liquidated demand, and in what sum; and

the proper treatment of interest and costs. D. THE STATUTORY FRAMEWORK [14] Because the real controversy lies in the classification of the claim and the relief that default permits, the legal framework may be confined to Order 13 and the few provisions bearing directly upon it. [15] By Order 12 rule 4 of the Rules of Court 2012, the time limited for appearing, where the writ is served within the local jurisdiction of Malaya, is fourteen days after service. Order 13 then graduates the consequences of default according to the nature of the claim. By rule 1, where the writ is endorsed with a claim for a liquidated demand only, the plaintiff may enter final judgment for a sum not exceeding that claimed. By rule 2, where the claim is for unliquidated damages only, the plaintiff may enter interlocutory judgment with damages to be assessed. Rule 3 deals with detinue and rule 4 with possession of immovable property. Rule 5 governs mixed claims, that is, a writ endorsed with two or more of the claims mentioned in rules 1 to 4 and no other claim. [16] Rule 6 is the provision that governs everything else. By rule 6(1), where the writ is endorsed with a claim of a description not mentioned in rules 1 to 4, the plaintiff may, after the time limited for appearing and upon filing an affidavit proving due service, "proceed with the action as if that defendant had entered an appearance." The contrast with rules 1 to 5 is deliberate and important. Those rules speak of the plaintiff entering judgment; rule 6(1) does not. It does not authorise the entry of judgment in the terms of the statement of claim. It permits the action to proceed to determination on its merits, with the defendant treated as present but silent. [17] The remaining provisions of the Order reinforce this reading. Rule 6(2) permits, with the leave of the Court, judgment for costs alone where, the defendant being in default, it has become unnecessary to proceed because the claim has been satisfied. Rule 7(1) provides that no judgment shall be entered under the Order unless the plaintiff produces a certificate of non-appearance in Form 12 and files an affidavit proving due service. Rule 7(2) empowers the Court, on an application affecting a party in default, to require to be satisfied in such manner as it thinks fit that the party is in default. The Order therefore confers on the Court a supervisory function; default does not operate as an admission entitling the plaintiff to judgment as of right whatever the nature of the relief. E. ANALYSIS AND DETERMINATION Issue (A): The Procedural Conditions For Invoking Order 13 [18] The Plaintiff relies on the affidavit of service (exhibit MAAS-8) as proof that personal service of the writ and Statement of Claim was effected on both Defendants. No memorandum of appearance has been entered by either Defendant. A Certificate of Non-Appearance has also been issued (Enclosure 5). Save for the discrepancy concerning the date of service addressed below, the documentary record prima facie establishes that the Defendants have not entered appearance and that the procedural requirements for invoking Order 13 have been substantially complied with. [19] One matter on the face of the record, however, requires clarification. The Plaintiff's application, supporting affidavit and affidavit of service refer to service having been effected on 27 October 2025, whereas the Certificate of Non-Appearance recites service on 10 November 2025. Although the discrepancy does not affect the fact that no appearance has been entered by either Defendant, it bears directly upon the computation of the time limited for appearance under Order 12 rule 4 of the Rules of Court 2012. If service was in fact effected on 10 November 2025, the fourteen-day period prescribed by that rule would not have expired by the date on which the Certificate of Non-Appearance was issued on 21 November 2025. In those circumstances, the Court considers it necessary that the operative date of service be clarified before the record is finally regularised and before any consequential order founded upon the Defendants' default is perfected. Issue (B): Classification Of The Claim And Its Consequence [20] The classification of the claim is the dispositive question, and it must be undertaken defendant by defendant, for Order 13 speaks throughout of the claim endorsed "against that defendant." [21] The claim against the First Defendant is for a declaration that the sale and purchase agreement is avoided, for restitution, for agreed damages, and for re-conveyance; alternatively, for a declaration of entitlement to Lot 890 with a vesting order. None of these is a liquidated demand within rule 1, unliquidated damages alone within rule 2, a claim in detinue within rule 3, or a claim for possession of immovable property within rule 4. The claim is therefore one "of a description not mentioned in rules 1 to 4," and it falls within rule 6. [22] The consequence is decisive. Rule 6(1) does not permit the entry of judgment in default in the terms prayed. It permits the Plaintiff to proceed with the action against the First Defendant as if she had entered an appearance. The action proceeds to proof; it does not collapse into automatic judgment on the strength of the First Defendant's silence. An application that seeks, under Order 13, the entry of default judgment in the terms of prayers 1 and 2 of the Statement of Claim is, to that extent, misconceived. [23] Three considerations confirm that this is the correct reading and not a merely technical one. [24] The first concerns the nature of declaratory relief. A declaration is a discretionary remedy. Section 41 of the Specific Relief Act 1950 confers the power in discretionary terms, providing that the Court "may in its discretion make therein a declaration". Accordingly, a declaration is not granted as of right merely because a defendant has failed to appear, elected not to contest the proceedings, or even admitted the claim. The Court must independently examine the facts and the applicable law and be satisfied that there exists a proper basis for the declaration sought. The absence of opposition cannot relieve the Court of that responsibility. The First Defendant's silence therefore cannot itself supply the satisfaction required for the grant of declaratory relief. [25] The second concerns the alternative relief. The prayer for an order compelling the First Defendant to execute a memorandum of transfer of Lot 890, failing which the Deputy Registrar is to execute it, is a claim for specific performance reinforced by a vesting order. Specific performance is an equitable and discretionary remedy: section 21(1) of the Specific Relief Act 1950 provides that the jurisdiction to decree specific performance is discretionary and that the Court is not bound to grant the relief merely because it is lawful to do so. Whether Lot 890 formed part of the contractual subject matter is the very matter in dispute, and it turns on the construction of the sale and purchase agreement (exhibit MAAS-1) and the surrounding circumstances. A vesting order compelling the transfer of a parcel that may lie outside the written bargain cannot be made without proof; to make it on default would be to remake the parties' contract rather than enforce it. [26] The third concerns the foundation of the claim in fraud and misrepresentation. The Rules themselves mark fraud as unsuitable for summary disposition: Order 14 rule 1(2)(b) excludes a claim based on an allegation of fraud from the summary judgment procedure. The same policy informs the treatment of fraud on default. Fraud must be established by evidence, not assumed from non-appearance. While the standard of proof of fraud in civil proceedings is the balance of probabilities, and not the criminal standard Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 5 MLJ 1 (Federal Court) that standard must still be met. The particulars pleaded at paragraphs 11 and 12 of the Statement of Claim are allegations to be proved; they are not themselves proof. [27] I add this. The principal reliefs against the First Defendant declaratory and vesting relief lie outside the competence of the Registrar in any event and are matters reserved to the Court. That is a further reason why these reliefs are not to be disposed of summarily on a default listing, and why the action must proceed to be determined by the Court on proof. [28] It follows that, as against the First Defendant, the proper order is not the entry of judgment but a direction under rule 6(1) that the action proceed against her as if she had entered an appearance, to be set down for assessment and formal proof before the Court. Issue (C): The Agreed Damages Of RM400,000 [29] It is convenient to deal here with the claim for agreed damages of RM400,000 in prayer 1(ii), because it could not be entered on default even if the claim against the First Defendant otherwise admitted of default judgment. It is infirm on two independent grounds. [30] First, the pleadings and affidavit evidence are internally inconsistent. Paragraph 15 of the Statement of Claim and paragraph 12 of the supporting affidavit refer to agreed damages of RM20,000. However, prayer 1(ii) of the Statement of Claim seeks RM400,000 as agreed damages. No factual foundation for the figure of RM400,000 appears in the body of the Statement of Claim, the supporting affidavit, or the exhibited documents presently before the Court. [31] Second, a sum stipulated to be payable on breach is not a liquidated demand recoverable by the mere entry of judgment. It is governed by section 75 of the Contracts Act 1950, under which the Court awards reasonable compensation for the breach. Under the earlier approach in Selva Kumar a/l Murugiah v Thiagarajah a/l Retnasamy [1995] 1 MLJ 817 (FC), the innocent party was generally required to prove actual loss. That approach was revisited by the Federal Court in Cubic Electronics Sdn Bhd (in liquidation) v Mars Telecommunications Sdn Bhd [2019] 6 MLJ 15; [2019] 2 CLJ 723 (FC), which held that proof of actual loss is not a precondition in every case: the innocent party need establish a breach and a clause stipulating a sum, whereupon that sum may be awarded as reasonable compensation provided it is not extravagant, exorbitant or unconscionable, its reasonableness being assessed by reference to the innocent party's legitimate interest and the proportionality of the stipulated sum. On either approach, the figure is not recoverable as of course. It represents reasonable compensation to be assessed, and the assessment of reasonableness cannot be undertaken on a bare default still less in support of a figure of RM400,000 that finds no place in the pleaded case. [32] There is, in addition, an internal tension in the relief framed in prayer 1. The Plaintiff seeks both full restitution the refund of RM500,000 and the re-conveyance of Lot 891 and substantial damages. On rescission of a voidable contract the governing measure is restitutionary: sections 65 and 66 of the Contracts Act 1950 require the restoration of benefits received, so that the parties are returned to their pre-contractual positions. To award the contractual measure of damages in addition, as if the contract had been performed, would risk double recovery. This, too, is a matter to be worked out on proof and not on default. Issue (D): The Rent Arrears Against The Second Defendant [33] The position of the Second Defendant is different. The only relief sought against him is the rent arrears in prayer 3. Rent payable at a fixed monthly rate under a written tenancy is a liquidated demand: the sum is ascertained by arithmetic and requires no assessment. As against the Second Defendant, therefore, the claim is for a liquidated demand only, and rule 1 applies. Under rule 1(1) the Plaintiff may enter final judgment for a sum not exceeding that claimed. [34] As to quantum, the tenancy agreement (exhibit MAAS-3) provides for rent of RM3,800 per month. The Plaintiff alleges that rental default commenced in December 2023. Prayer 3 of the Statement of Claim claims rental arrears of RM68,400 and describes that sum as representing eighteen months' rent from December 2023 to July 2025. The figure of RM68,400 corresponds arithmetically to eighteen months at RM3,800 per month. However, the period stated in the pleading, namely December 2023 to July 2025, appears to encompass a longer period if calculated inclusively. Notwithstanding that inconsistency, the sum claimed by the Plaintiff is RM68,400 and does not exceed the amount allegedly recoverable under the pleaded tenanc Issue (E): Interest [35] Prayer 4 claims interest at 8% per annum from the date of service of the summons until full settlement. The claim cannot be allowed as framed, for two reasons. [36] First, it conflates pre-judgment and post-judgment interest. Post-judgment interest runs from the date of judgment, not from the date of service. By Order 42 rule 12 of the Rules of Court 2012, a judgment debt carries interest at such rate as the Chief Justice may from time to time determine, or at such lower rate as the Court determines. The prevailing rate determined for post-judgment interest under the Rules is 5% per annum. A claim for 8% exceeds the rate the Order permits and cannot be allowed for the post-judgment period. [37] Second, pre-judgment interest is not recoverable as of right. It is discretionary under section 11 of the Civil Law Act 1956, which permits interest on a debt or damages for the period between the accrual of the cause of action and judgment. No basis for a rate of 8% has been shown. In the exercise of the discretion, and consistently with the prevailing judgment rate, I consider 5% per annum to be the appropriate rate. Interest on the sum awarded against the Second Defendant will be allowed at 5% per annum on RM68,400 from the date of service of the writ to the date of this judgment, and thereafter at 5% per annum until realisation. F. CONCLUSION [38] Drawing the threads together and answering the issues as framed: the time for appearance has expired, due service is proved, and the certificate of non-appearance has been produced, so that the gateway to Order 13 is open, subject only to the reconciliation of the conflicting service dates appearing on the record. The claim against the First Defendant is a claim within Order 13 rule 6; default does not entitle the Plaintiff to judgment in the terms prayed, and the action must instead proceed against her as if she had entered an appearance, to be determined on proof. The claim against the Second Defendant is a liquidated demand to which rule 1 applies, and final judgment may be entered for the rent arrears claimed. The claim for interest at 8% cannot stand; interest is allowed at 5%. G. ORDERS OF THE COURT [39] For these reasons, I make the following orders.

The application in Enclosure 15 is allowed in part.

As against the First Defendant, the application for the entry of judgment in default of appearance in the terms of prayers 1 and 2 of the Statement of Claim is dismissed. Pursuant to Order 13 rule 6(1) of the Rules of Court 2012, the action shall proceed against the First Defendant as if she had entered an appearance, and is to be set down for assessment and formal proof before the Court.

The Plaintiff is to file and serve a bundle of documents and any further affidavit or witness statement in support of the claim against the First Defendant within thirty (30) days, and the matter is fixed for case management on a date to be assigned by the Registry.

The Plaintiff shall, within fourteen (14) days, file an affidavit reconciling the date of service of the writ on the Defendants. The affidavit shall address the discrepancy between the date of service stated in the affidavit of service (27 October 2025) and the date recited in the Certificate of Non-Appearance (10 November 2025) and shall explain which date governs for the purposes of calculating the time limited for appearance.

As against the Second Defendant, the Plaintiff has established a claim for a liquidated demand in the sum of RM68,400 in respect of rental arrears. However, in view of the discrepancy appearing on the face of the record concerning the operative date of service of the writ, the entry of final judgment is deferred pending compliance with paragraph (4) above and the Court's determination that the requirements of Order 12 rule 4 and Order 13 rule 7 of the Rules of Court 2012 have been satisfied.

Upon the Court being satisfied as to the operative date of service and the expiry of the time limited for appearance, final judgment shall be entered against the Second Defendant in the sum of RM68,400 together with interest at the rate of 5% per annum from the date of service of the writ to the date of judgment and thereafter at the rate of 5% per annum until full realisation.

The Plaintiff's claim for interest at the rate of 8% per annum is refused.

Costs shall be costs in the cause as against the First Defendant. Costs occasioned by the claim against the Second Defendant shall be reserved pending the determination referred to in paragraphs (5) and (6) above.

Liberty to apply. Dated 19 June 2026 (YA Dato' Sri Raja Segaran A/L S. Krishnan) (Judicial Commisioner) High Court Of Malaya Malacca High Court (MELAKA) Lawyer For Plaintiff Encik Muhammad Fadzil bin Hassan Tetuan Fadzil Alimi & Associates Peguamcara dan Peguambela No. 67-1, Jalan SP4, Taman Semabok Perdana, 75650 Melaka.