Pragash A/L Savarimuthu v Kavita A/P Nadarajan (JA-24NCvC-306-03/2025)

This is an application by the Defendant, pursuant to Order 42 rule 13 and/or Order 92 rule 4 of the Rules of Court 2012 (“ROC 2012”), seeking to set aside the ex parte order of this Court dated 14 May 2025 made in Originating Summons No. JA-24NCvC-306-03/2025.

By the said ex parte order, this Court granted leave to the Plaintiff, to enforce a judgment of the Sessions Court Johor Bahru dated 9 December 2024 (Civil Suit No. JA-A52NCvC-151-06/2023) by way of a Prohibitory Order under Order 47 rule 6 ROC 2012 and sections 5, 324 and 334 of the National Land Code 1965 (“NLC”) in respect of the property held under GRN 596688, Lot 195904, Mukim Pulai, Daerah Johor Bahru.

3.

Parties filed written submissions and a bundle of authorities and orally submitted before this Court on 14 October 2025. The decision was adjourned to today (30 October 2025).

The Plaintiff commenced the present Originating Summons on 12 March 2025, supported by an affidavit affirmed on 11 March 2025, seeking leave to enforce the Sessions Court judgment against the Defendant’s property by way of a Prohibitory Order.

On 14 May 2025, this Court granted the application ex parte. The Plaintiff thereafter lodged the said order at the Land Registry, Johor Bahru, resulting in the registration of the Prohibitory Order on 10 June 2025.

The Defendant contends that the ex parte order was irregularly obtained as the Plaintiff had failed to effect proper service of the Sessions Court judgment dated 9 December 2024 prior to initiating the enforcement proceedings.

The Defendant, through Messrs Thina & Co, filed the present application. The grounds relied upon are summarised as follows –

improper service of the Sessions Court judgment. The Defendant was never personally served with the Sessions Court judgment dated 9 December 2024. She contends that the Plaintiff’s alleged service of the said judgment on Messrs Thina & Co, who previously represented her in the Sessions Court proceedings, was invalid, as there is no documentary evidence showing that the firm had continuing authority to accept service on her behalf;

failure to serve personally or by A.R. registered post. The Plaintiff did not attempt personal service or A.R. registered post at the Defendant’s residence. The process server’s attempt on 12 June 2025 merely involved leaving documents at the guardhouse and taking a photograph from a distance;

premature registration of the Prohibitory Order. The Plaintiff registered the order at the Land Office on 10 June 2025, before effecting any service of the High Court order on the Defendant. Further, the property is charged to AmBank, yet there is no evidence that the Plaintiff served a copy of the order on the bank as the secured creditor; and

absence of contemporaneous affidavit of service. No affidavit of service was filed with the ex parte proceedings. The affidavit subsequently filed by the Plaintiff’s process server is alleged to be an afterthought and unreliable.

The Plaintiff, opposes the application on the following grounds –

Service on Messrs Thina & Co was proper, as they remained solicitors on record in the Sessions Court suit, having filed the appearance, defence and counterclaim on behalf of the

Personal service was attempted; the process server later effected service on Messrs Thina & Co on 16 June 2025 at the request of the Defendant’s son, amounting to valid substituted compliance;

Under Pengurusan Danaharta Nasional Bhd v Yong Wan Hoi & Anor (No 2) [2008] 7 MLJ 297, personal service is mandatory only where committal proceedings are contemplated under Order 45 ROC 2012, and not for ordinary enforcement under

the Defendant’s application, filed on 23 July 2025, was out of time, exceeding the 30-day period stipulated under Order 42 rule 13 ROC 2012; and

the Defendant has not shown any sufficient cause to justify setting aside the Prohibitory Order.

Having considered the affidavits filed by both parties, the written submissions and the oral arguments advanced before this Court, the following issues arise for determination –

whether the Sessions Court judgment was validly served on the

whether the Defendant’s application was filed within the time prescribed under Order 42 rule 13; and

whether the Defendant has demonstrated sufficient cause under Order 47 rule 6(k) to justify the setting aside of the Prohibitory Order.

Whether the Sessions Court judgment dated 9 December 2024 was properly served on the Defendant prior to the filing of the

This issue forms the central question in this application. The Defendant contends that she was never personally served with the Sessions Court judgment and that the Plaintiff’s purported service on Messrs Thina & Co, her former solicitors, was irregular and invalid. The Defendant maintains that there is no evidence that the said firm continued to have authority to accept service on her behalf after the conclusion of the Sessions Court proceedings.

The Plaintiff, however, asserts that Messrs Thina & Co were the solicitors on record in the Sessions Court action, having filed the appearance, defence and counterclaim for the Defendant and that service of the judgment by email and courier to the firm on 24 December 2024 constituted good and sufficient service. Reliance is placed on Lau Pick Huong v Soh Huang Siah [2015] 7 MLJ 325 and Pengurusan Danaharta Nasional Bhd v Yong Wan Hoi & Anor (No 2) [2008] 7 MLJ 297.

These cases, however, are distinguishable. In Lau Pick Huong, the evidence showed that the party had expressly authorised service on her former solicitor. Here, no such authorisation was shown.

No letter of authority, acknowledgment of receipt, or correspondence from Messrs Thina & Co was produced to confirm that they had continued authority to accept service. The Plaintiff’s reliance on email and courier delivery, without proof of acknowledgment, falls short of the evidential standard required.

The Defendant has consistently maintained that she was never personally served, nor was service effected by A.R. registered post. The process server’s attempt on 12 June 2025 merely involved leaving documents at the guardhouse and the subsequent affidavit of service was only filed after the Defendant had filed this application.

This Court accepts the Defendant’s submission that the affidavit of service appears to be an afterthought and carries limited probative weight. The Plaintiff, as judgment creditor, bears the burden of proving proper service before initiating enforcement under Order 47 ROC 2012. That burden has not been discharged.

Accordingly, the Court finds that the Sessions Court judgment was not properly served on the Defendant. The alleged service on Messrs Thina & Co does not constitute valid service within the meaning of the Rules of Court 2012.

Whether the Defendant’s application to set aside the ex parte order dated 14 May 2025 was filed within the prescribed time under Order 42 rule 13 ROC 2012

The Plaintiff argues that the Defendant was served with the ex parte order on 16 June 2025 and that under Order 42 rule 13(1) ROC 2012, the Defendant was required to file her application within 30 days, that is, by 15 July 2025. As the present application was filed on 23 July 2025, it is said to be out of time.

The Defendant disputes that she was ever properly served, contending that the alleged service of the order on Messrs Thina & Co was defective and therefore could not trigger the computation of time. She asserts that she only became aware of the order after receiving correspondence from the Plaintiff’s solicitors in July 2025. The Court must therefore determine whether the 30-day period prescribed under Order 42 rule 13 commenced upon the purported service on 16 June 2025, or from the date of the Defendant’s actual notice.

Order 42 rule 13(1) ROC 2012 provides that any person affected by an ex parte order may apply to set it aside within 30 days from the date of service of that order. Its well establish in Mirra Sdn Bhd v The Ayer Molek Rubber Co Bhd [2008] 2 MLJ 348, Thye Ah Chai (t/a Kent Naga Enterprise) v Teraju Mercu Construction & Engineering Sdn Bhd [2014] 1 MLJ 422, and Khor Cheng Wah v Sungai Way Leasing Sdn Bhd [1996] 1 MLJ 223 that delay was held to be fatal.

While those authorities affirm the need for prompt action, they are premised on valid service. As found under Issue (a), the Plaintiff failed to prove effective service of the order. The 30-day time period under Order 42 rule 13 ROC 2012 therefore did not begin to run.

Even if the alleged service on 16 June 2025 were accepted, this Court is guided by the reasoning in Development & Commercial Bank Ltd v. Dinesh Kumar Jashbhai Nagjibhai & Ors [2002] 3 CLJ 108, which held that the Court retains discretion to extend time where the delay is not deliberate and no prejudice is caused.

In this case, the Defendant filed her application promptly upon obtaining actual notice of the order. There is no evidence of dilatoriness or bad faith. The Court therefore finds that the Defendant’s application is not out of time and was properly before this Court.

Whether the Defendant has shown sufficient cause under Order 47 rule 6(k) ROC 2012 to justify setting aside the Prohibitory

Under Order 47 rule 6(k) ROC 2012, the Court may discharge or vary a Prohibitory Order if “sufficient cause” is shown. In this application, the Defendant relies on several matters, namely –

the defective service of the Sessions Court judgment;

the premature registration of the Prohibitory Order at the Land Office before service; and

the failure to serve the order on AmBank, the chargee of the property.

The Plaintiff, on the other hand, contends that there is no sufficient cause to warrant the setting aside of a regularly obtained order. Reference were made to K H Khoon Construction Sdn Bhd v Saraswathi a/p Nadarajan [2025] MLJU 116, where it was held that procedural irregularities alone are insufficient to justify the discharge of a Prohibitory Order.

However, this Court is of the view that, that case is distinguishable, as the debtor there had full notice and participated in the proceedings. In this case, the Prohibitory Order was registered before any service on the Defendant or the chargee. This is inconsistent with Order 47 rule 6(d) and section 334(1) of the NLC, which presuppose that service precedes registration. Such premature registration deprived the Defendant of the opportunity to challenge the order and resulted in the encumbrance of her property without notice.

The Plaintiff, as judgment creditor, was obliged to ensure strict compliance with procedural requirements when seeking to restrict proprietary rights. Failure to observe these safeguards constitutes a material irregularity.

Accordingly, this Court is satisfied that the Defendant has demonstrated sufficient cause under Order 47 rule 6(k) to justify setting aside the Prohibitory Order. The combination of defective service, premature registration, and absence of notice to the chargee establishes a serious procedural flaw causing prejudice to the Defendant.

For the reasons above, the Court finds as follows –

the Plaintiff has not proven proper service of the Sessions Court judgment on the Defendant;

the Defendant’s application was filed within time under Order 42 rule 13 ROC 2012; and

the Defendant has shown sufficient cause under Order 47 rule 6(k) ROC 2012 to justify setting aside the order.

Accordingly, the Defendant’s application in Enclosure 10 is allowed with costs of RM 8,000.00 are subject to the allocator.

The ex parte order dated 14 May 2025 and the Prohibitory Order registered on 10 June 2025 are hereby set aside. Dated : 30 October 2025 -signed-Dr. Noradura Binti Hamzah Judicial Commissioner High Court Civil 2 Johor Bahru Plaintiff’s Solicitor : Tetuan C. Sankaran & Co. Defendant’s Solicitor : Tetuan B B Kiru & Partner