Sockalingam a/l Kandiah v Sri TKS Management Sdn Bhd (JA-11BNCvC-14-12/2023)

This Court hear an application pursuant to Order 55 Rule 7 Rules of Court 2012 filed by Sockalingam A/L Kandiah, the Plaintiff in the proceeding before the Magistrate Court. In that proceeding, Plaintiff claimed against Defendant (Sri TKS Management Sdn. Bhd.) for both special and general damages arising from the Defendant’s action in denying the Plaintiff access to the premises rented from the Defendant, resulting in the loss of his belongings kept in that premise. On the other hand, the Defendant’s counterclaim against the plaintiff was for overdue rental and electricity bills for certain months of the rental period.

The Magistrate, on 6 December 2023, in the judgement delivered after a full trial, had partially allowed Plaintiff’s claim and fully allowed Defendant’s counterclaim. Thereafter, both parties appeal to this Court against the Magistrate’s judgement. The Plaintiff's appeal was registered as Civil Suit No: JA-11BNCVC-14-12/2023 (“Plaintiff’s appeal”), whilst Defendant’s appeal was registered as Civil Suit No: JA-11BNCVC-15-12/2023 (“Defendant’s appeal”).

The Plaintiff then applied for leave to adduce new/ additional evidence in his appeal in both Defendant’s appeal (Enclosure 25) and his own appeal (Enclosure 25). The Plaintiff is optimistic that if the Defendant Company’s Financial Report for the years 2016, 2017 and 2018 and the electricity bill of the premises rented by the Plaintiff, are made available during the trial before the Magistrate, it will reveal that the sum claimed in the Defendant’s counterclaim is untrue.

Parties had filed in written submission together with the supporting authorities in Enclosure 93 (Defendant’s submission), Enclosure 94 (Defendant’s Submission in Reply), Enclosure 92 (Plaintiff’s bundle of authorities) and Enclosure 91 (Plaintiff’s written Submission). Counsel for both parties also orally submitted before this Court on 26 August 2025. Today is the day for the decision. I’ll now read my decision and reasoning.

The facts of the case narrated in the Magistrate's ground of judgment could be summarised as follows: Plaintiff (tenant) entered into a tenancy agreement dated 19 October 2015 with the Defendant (landlord) for the rental of premises to operate as a restaurant known as Restoran Madurai. The agreement was for a period of 2 years with a rental sum of RM1,800.00 per month. Among others, the tenancy agreement requires the Plaintiff to apply for electricity and water supply for the premises at the Plaintiff’s expense.

The Plaintiff pleaded that the restaurant operated without the Local Authority's approval until September 2016. He failed to obtain the business license because the Local Authority rejected his application for noncompliance with the necessary documents, which the Defendant failed to provide to the Plaintiff. Hence, he was forced to seize the business. The plaintiff stored his belongings in the S/N 1XkzMcxw8Ua2dkTc2nEaZA locked premises before leaving, and later in January 2017, he found that the premises' padlock had been changed.

The judgement was given after a full trial. In support of his claim, Plaintiff submitted eight issues, whilst Defendant submitted three issues to rebut the Plaintiff's claim and also submitted 4 issues for the counterclaim.

Both appeals were fixed for hearing on 28 August 2024 and were vacated upon Plaintiff’s application Enclosure 24 and 25 (in both appeals’ respectively).

Plaintiff’s application is pursuant to Order 55 Rule 7 ROC 2012. In summary, the provision restricted fresh evidence from being adduced in the appeals to the High Court from the Subordinate Courts unless the Plaintiff satisfy two limbs:

whether the evidence was not available with reasonable diligence at trial; and

if it's true, whether it would likely have a determining influence on the magistrate’s decision.

Apart from Order 55 Rule 7 ROC 2012, the Court is also guided with the principle on admission of fresh evidence during the pendency of S/N 1XkzMcxw8Ua2dkTc2nEaZA an appeal stated in the case of Ladd v Marshall [1954] 3 All ER 745 and Lau Foo Sun v Government of Malaysia [1970] CLJU 56; [1970] 1 LNS 56; [1970] 2 MLJ 70. The principle was clearly explained in the Court of Appeal case of Ting Sieh Chung v. Hock Peng Realty Sdn Bhd [2016] 7 CLJ 527 as follows: “[24] The principle to be applied in admission of fresh evidence during the pendency of an appeal is clearly stated in the English case of Ladd v. Marshal [1954] 3 All ER 745. Our very own apex court in the case of Lau Foo Sun v. Government of Malaysia [1970] CLJU 56; [1970] 1 LNS 56; [1970] 2 MLJ 70 had embraced the same principle which still represents the legal position on the matter till to this day. The statement of the principle by their Lordships is contained in the following paragraph: To justify the reception of further evidence three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive; third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible”

Hence, guided by the above-mentioned statutory provision and principle of law (which is to be applied cumulatively), this court considers the following issue: whether the Plaintiff’s application to adduce fresh/ further evidence in the pendency of the appeal has fulfilled the limbs as below:

that the evidence could not have been obtained with reasonable diligence for use at the trial;

the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive; and

the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible.

There are two types of documents which the Plaintiff sought to adduce as fresh evidence during the trial of the appeal: the Defendant Company’s Financial Report for the years 2016, 2017 and 2018 and the electricity bill of the premises.

According to the Plaintiff, neither document was available at the trial before the Magistrate's Court. Should the documents be made available, they will reveal that the sum claimed by the defendant in the counterclaim is untrue. This is because the Company’s Financial Report for the respective years did not record the outstanding rental as bad debt in any of their account. As to the electricity bill, the charges claimed were not reflected in the new electricity bill.

Having read and considered the written submission and oral submission, case authority, the course papers filed with this application, this Court agrees with the Defendants' submission that:

Defendant Company’s Financial Report for the years 2016, 2017 and 2018 is a public report and is in the public domain, which Plaintiff could easily obtain from the Malaysian Securities Commission or Suruhanjaya Syarikat Malaysia (SSM). None of the Plaintiff’s affidavit explained its inability to retrieve the documents and produce them during the trial. The burden is on the Plaintiff to adduce the allegation raised against the Defendant.

The electricity bill which Defendant seeks Plaintiff to adduce is not for the tenure period. Even though the intention is to prove that the Plaintiff did not pay the outstanding bills, which he claimed from the Defendant, this does not negate the fact that the Defendant owes the electricity bill claimed by the Defendant in the counterclaim.

Therefore, this Court is satisfied that on the balance of probabilities, the Plaintiff failed to meet the three limb test as required under Order 55 rule 7 and the case of Ladd v Marshall in the following grounds:

on the production of the Defendant Company’s Financial Report for the years 2016, 2017 and 2018, no satisfactory explanation is provided for why they could not, with reasonable diligence, have been obtained for the trial. In addition to that, accounting classification as stated in the financial report is not determinative of legal liability and would not likely have a determining influence.

the electricity bills relied on are not for the tenancy period in issue and, in any event, the tenancy required the Plaintiff to secure utilities at his own expense. Hence, bills outside the relevant period have limited probative value and would not likely influence the case.

Therefore, limb as mention in paragraph 11(a) and (b) fails.

As to limb under paragraph 11(c), there is no proper explanation/ exhibits on this. In the absence of proper evidence on this, this prerequisite set under this limb is not met.

Based on the above-said analysis and reasoning, this Court is satisfied that the Plaintiff has not met the requirement set under Order 55 Rule 7 ROC 2012 as well as the criteria set in Ladd v Marshall for the Court to allow Plaintiff’s application to adduce new evidence at the appeal. Hence, the sole issue for consideration in this application as set in paragraph 11 is answered in the negative. Accordingly, the Plaintiff’s applications to adduce further evidence (Enclosure 25 and Enclosure 24, respectively in each appeal) are dismissed with costs of RM5,000.00 (one sum for both appeals: RM2,500 in each appeal), subject to allocator. S/N 1XkzMcxw8Ua2dkTc2nEaZA Bertarikh : 4 September 2025 (Noradura Binti Hamzah) Pesuruhjaya Kehakiman Mahkamah Tinggi Malaya Johor Bahru Johor Darul Ta’zim Peguamcara : Sockalingam A/L Kandiah Prabhakaran A/L Ramasamy Tetuan R. Kengadharan & Co. Peguamcara : Sri TKS Management Sdn. Bhd. WC Yong & Shahirah Nadia Tetuan Yong Law Office S/N 1XkzMcxw8Ua2dkTc2nEaZA