Srijang Indah Sdn Bhd v Royel Department Stores Sdn Bhd (BA-12B-98-11/2022)

After the Shah Alam Sessions Court dismissed the Appellant/Plaintiff (Srijang)’s suit for recovery of possession of its immovable property on the ground that the suit duplicates with another pending court suit in the Kuala Lumpur Sessions Court, this Court on appeal dismissed the appeal with an amendment to the Shah Alam Sessions Court’s order from “dismissal of suit” to “striking out of suit” so as to avoid the risk of estoppel by res judicata to the pending Kuala Lumpur Sessions Court suit. 2

Being dissatisfied with this Court’s decision, the Appellant/Plaintiff (Srijang) has appealed to the Court of Appeal. Legal principles on duplicity of proceedings

The rule against multiplicity of proceedings is contained in Courts of Judicature Act 1964, specifically the Schedule thereto, at para 11 which reads as follows: “(11) Res judicata Power to dismiss or stay proceedings where the matter in question is res judicata between the parties, or where by reason of multiplicity of proceedings in any court or courts the proceedings ought not to be continued”.

Cotton LJ in Searle V Choat (1884) 25 Ch D 723 at p 727, made reference to the English legislation and said that the whole tenor of the Judicature Acts was to require that all proceedings, as far as possible, are to be taken in one action.

In paragraph 446 of Volume 37 of Halsbury’s Laws of England (4th Ed): “If there are two courts faced with substantially the same question or issue, that question or issue should be determined in only one of those courts, and the court will if necessary stay one of the actions.”

In the Supreme Court Case of Lai Kim Loi v Dato’ Lai Fook Kim & Anor [1989] 2 MLJ 290 the Appellant in that case had presented a Winding Up Petition against the 2nd Respondent’s company. At the same time, the Appellant had filed a civil suit by way of a Writ and Statement of Claim against the 1st Respondent (who was also shareholder of the 2nd Respondent) based on the same substantial facts and seeking essentially the same reliefs in the Petition. The Petition was struck out on the grounds that the Petition is frivolous, vexatious and an abuse of process of the court. On appeal to the Supreme Court, Gunn Chit Tuan, SCJ (later CJ (Malaya)) upheld the dismissal of the Appeal and found that the issues raised and the relief sought in both the Petition and the Writ are in duplication and amounted to multiplicity of actions as follows: At page 58 “If the ownership of the same 1,200,000 shares has already been challenged in another High Court filed earlier and the dispute is still pending, how can the plaintiff in our present case is at the same time the first defendant in the D3’s suit, file this action before this court 3 claiming the benefits (the dividends) arising from the same shares? I do not think this is a proper court of action to be taken by the plaintiff in this action…” At page 59 “There cannot be a situation where the shares are being contested in one court and status quo is being maintained in that court and yet the dividends are being claimed in another court, as what has happened now… This is clearly duplicity of proceedings and abuse of process of court…”.

Similarly in the Court of Appeal case of Penang Port Commission V Kanawagi A/L Sepurumaniam [2009] 1 CLJ 169, which is squarely on point to the case at hand wherein it was held at page 179 as follows: “The plaintiff is certainly not at liberty to file his originating summons in defiance of the order of CA Coram 1, particularly when the issue in the plaintiff’s originating summons and the triable issue in the plaintiff’s writ action are identical. To do so would clearly constitute multiplicity of actions.” At page 180: “…the factual background unfolded at the outset of this judgment provides a plain and obvious case for multiplicity of actions. The existence of the plaintiff’s writ action and the plaintiff’s originating summons touching on an identical issue certainly runs counter to the bona fide doctrine. It militates against public policy and the interests of justice. This multiplicity of actions is plainly an abuse of the process of the court, which comes within the purview of O. 18, r. 19(1)(d) and must be treated as such…”

This was also made clear by High Court in Nazaruddin bin Mohd Shariff @ Masari & Anor v Roslan bin Maulud & Anor [2020] MLJU 1362:- “[12] Having considered the grounds raised by the Defendant/ Applicant in support of Enclosure 27, the law and principles applicable to duplicity/ multiplicity of proceedings based on the same set of facts and to striking out of pleadings, the contentions of counsel, the background facts, the reliefs sought and cause of action in both the actions concerned, it is found as follows. [13] In applying the established principles on the issue at hand to the present facts, it is beyond dispute that as there is a substantial duplication of issues raised and reliefs sought, by the Plaintiff in the two separate suits as alluded to, it would amount to multiplicity/ duplicity of actions. From a 4 perusal of the pleadings in both actions, it would appear clearly that the Plaintiffs have patently pleaded virtually the same issues, cause of action, facts and reliefs in respect of the same subject matter, i.e., is, Lot 864 in two separate suits; the earlier filed Suit 327 (vide the Counter Claim) and Suit 599 herein (vide the Writ and Statement of Claim). It would follow that the Plaintiff’s action in still proceeding to file Suit 599 can be considered an abuse of the court process and an attempt to bite the same proverbial cherry not once but twice at the very same time as contended by the Defendant.

The meaning of “abuse of process” was explained by Gopal Sri Ram JCA (later FCJ) in the case of Malaysia Building Society Bhd v Tan Sri General Ungku Nazaruddin bin Ungku Mohamed [1998] 2 MLJ 425, who said the following in regard to the doctrine of abuse of process (see pp 434 – 435 of the report): “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.” The three suits and their main features and pleaded material facts

An action was issued by the Appellant/Plaintiff against the Respondent/Defendant by the Appellant vide Kuala Lumpur Sessions Court Civil Suit No.: WA-A52NCVC-441-06/2021 (“KL Suit No. 441”) (see Appeal Records in Enclosure 3, pages 141 – 184) and as of the date of filing of this submission, Suit 441 is yet to be disposed with finality.

Concurrently, the issue on the supply of electricity to the Premise is a matter in dispute vide Kuala Lumpur Sessions Court Civil Suit No.: BI-B52NCVC-3-02/2022 (“KL Suit No. 3”) (Appeal Records in Enclosure 4 pages 473 – 585), wherein Royel sued Srijang and Tenaga Nasional Berhad in KL Suit No. 3. As of the date of filing of this submission, KL Suit No. 3 has been transferred to be heard 5 together with KL Suit Suit No. 441 (collectively as “KL Consolidated Suit No. 441”).

The Appellant on 14.06.2022 initiated an Originating Summons action (“Enclosure 1”) for Recovery of Immovable Property pursuant to Section 7(1) & (2) of the Specific Reliefs Act 1950 against the Respondent vide Shah Alam Sessions Court Originating Summons No.BH-A54-4-06/2022 (“Shah Alam Suit No. 6”).

The Originating Summons in Enclosure 1 of Shah Alam Suit No. 6 was dismissed by the Sessions Court Judge which led to the filing of the Notice of Appeal dated 20.10.2022.

The material facts and the reliefs prayed for in KL Suit No. 441 and in Shah Alam Suit No. 6 are summarised below: Para. No. of Statement of Claim in KL Suit No. 441 (Appeal Records pages 141 – 152) Para. No. of Affidavit-in-Support for Shah Alam Suit No. 6 (Appeal Records pages 16 – 30)

Perjanjian penyewaan bertarikh

7.2019 mengenai Lot L3-1, Kompkelks Metro Point, Kajang. 3 & 4. Perjanjian penyewaan bertarikh 15.7.2019 mengenai Lot L3-1, Kompkleks Metro Point, Kajang.

Royel melanggar terma apabila gagal membayar sewa bulan-bulan Oktober & Disember 2020, January – April 2021 & bayaran lewat sebanyak

Tempoh penyewaan telah luput pada 31.5.2022.

Srijang mengeluarkan notis penamatan bertarikh 28.4.2021.

Royel enggan mengosongkan premis tersebut.

Royel terus menduduki premis tersebut.

Royel terus menduduki premis tersebut.

Srijang menuntut sewa 2 kali ganda sebulan, iaitu RM66,066 sebulan.

Srijang menuntut sewa 2 kali ganda sebulan, iaitu RM66,066 sebulan. 6

Kos pemulihan premis tersebut ialah RM150,500.00

Srijang menuntut tuggakan sewa RM168,625.78; caj bayaran lewat RM9,680.00; sewa 2 kali ganda RM44,754.38 + 66,066,00; kos pemulihan premis RM150,500.00; sewa 2 kali ganda dari bulan Julai 2021 hingga milikan kosong dikembalikan; perintah mengambil balik milikan kosong premis tersebut. Para. No. of Originating Summons at pages 16 – 18:

Srijang menuntut untuk milikan kosong premis tersebut; 2,3,4. Perintah-perintah sambilan dengan milikan kosong;

Kos pemulihan premis tersebut;

sewa 2 kali ganda RM66,066 sebulan dari 1.6.2022 hingga milikan kosong.

The main common features between KL Suit No. 441 and in Shah Alam Suit No. 6 are as follows:

Same parties;

Same subject matter involving the same tenancy agreement and the same demised premises;

Same relief of eviction and vacant possession prayed for;

Same damages for mense profit (double rentals) prayed for, as KL Suit No. 441’s prayer of mense profits from July 2021 until the date of recovery of vacant possession overlaps with Shah Alam Suit No. 6’s prayer of mense profits from 1.6.2022 until date of recovery of vacant possession; and

Same damages for costs of restoration of the demised premises.

In effect, all of the damages and reliefs prayed for in Shah Alam Suit No. 6 are covered by and included in the prayers in KL High Court Suit No. 441.

Although the grounds for claims in KL Suit No. 441 and in Shah Alam Suit No. 6 are different in that KL Suit No. 441 is based upon termination of the tenancy agreement before its expiry while Shah 7 Alam Suit No. 6 is based upon the expiry of the term of tenancy under the tenancy agreement, this does not deviate from the fact that the prayers for damages and reliefs in Shah Alam Suit No. 6 are a duplication of those in KL Suit No. 441.

In the KL Suit No. 441, Srijang applied for summary judgment in the Sessions Court but the application was dismissed by the KL Sessions Court. The appeal for summary judgment by Srijang to the High Court was dismissed by the High Court. Srijang has appealed further to the Court of Appeal, and this further appeal for summary judgment is pending before the Court of Appeal. The issues, which are held by the KL Sessions Court and KL High Court to be triable issues, have not yet been tried or disposed by the KL Sessions Court as at to-date.

In the circumstances, this Court has upheld that the Shah Alam Sessions Court’s decision that the Alam Alam Suit No. 6 is a duplication of the KL Suit No. 441.

Following the principles laid down in the statutory provision and in the decided authorities referred to above, this Court has held that the Shah Alam Suit No. 6 should not be allowed to continue in the circumstances.

Litigants and advocates should be aware of the rule against duplicity or multiplicity of proceedings. In situations similar to what Srijang encounters here wherein a pre-existing suit based on early termination of the tenancy has not been finally disposed by the Court when the tenancy has also come to an end through effluxion of time in the course of proceedings in the pre-existing suit, the litigant has no legal right to commence another suit for the same or duplicate remedies and reliefs based on expiry of the tenancy. What the litigant should do is to withdraw the pending pre-existing suit and file a new suit with claims for the remedies and reliefs on alternative bases or grounds, namely, early termination of tenancy and alternatively, expiry of tenancy period. The necessity to withdraw the pending pre-existing suit and file a new suit with claims on alternative bases is because the second basis of claim is a cause of action which accrued after the date of the filing of the pending pre-existing suit and therefore cannot be added to it by way of amendment of writ and statement of claim: see Sio Koon Lin & Anor v. S.B. Mehra [1980] 1 LNS 135; [1981] 1 MLJ 225 (Federal Court); Simetech (M) Sdn Bhd v. Yeoh Cheng Liam Construction Sdn Bhd [1992] 3 CLJ Rep 585; [1992] 1 MLJ 11 (Lim Beng Choon J.); Maxisegar Sdn Bhd & Anor 8 v. Indera Management Services Sdn Bhd [2005] 1 LNS 203 (Zulkefli Ahmad Makinudin J (later PCA); Sharmini Nair v. Narendran Yahambaram [2020] 1 LNS 2184 (Hayatul Akmal J); etc. This recourse of withdrawal and filing afresh would avoid contravention of the rule against duplicity of proceedings, avoid wastage of the court’s time and resources in hearing two suits on identical subject matter twice, and avoid the risks of conflicting findings of fact and conflicting decisions in the two separate suits. The litigants in such situation as encountered by Srijang here cannot have the two similar suits to be tried in courts concurrently or in parallel with each other – they cannot try to bite the cherry twice. Instead, the litigants in such situation has to elect between the two – whether to proceed only with the pre-existing suit (if they are confident of success on the sole basis of early termination) or whether to withdraw the pre-existing suit and file a new suit (if they want to have the benefit of both bases or grounds of claims in alternative under early termination as well as under expiry of tenancy period). Unfortunately, the Appellant/Plaintiff here has failed or neglected to take such appropriate steps.

The fact that there was a consolidation of trial in the KL Consolidated Suit No. 441 does not render it impossible to withdraw the pre-existing suit in KL Sessions Suit No. 441. There is no law to prohibit the withdrawal of one suit after it has been ordered to be heard together with another suit. The plaintiff in one suit can withdraw his suit under appropriate circumstances, leaving the plaintiff in the other suit to decide whether or not to proceed to trial on its own or to apply for it to be consolidated with another new suit. Such flexibility in the modes of trial is allowed under or implicit in O. 15 r.5, O.33 r. 2, and O.33 r.3 of the Rules of Court 2012, reproduced below: “Court may order separate trials (O. 15, r. 5)

(1) If claims in respect of two or more causes of action are included by a plaintiff in the same action or by a defendant in a counterclaim, or if two or more plaintiffs or defendants are parties to the same action, and it appears to the Court that the joinder of causes of action or of parties, as the case may be, may embarrass or delay the trial or is otherwise inconvenient, the Court may order separate trials or make such other order as may be expedient. (2) If it appears on the application of any party against whom a counterclaim is made that the subject matter of the counterclaim ought for any reason to be disposed of by a separate action, the Court may order the 9 counterclaim to be struck out or may order it to be tried separately or make such other order as may be expedient. Time of trial of questions or issues (O. 33, r. 2)

The Court may order any question or issue arising in a cause or matter, whether of fact or law or partly of fact and partly of law, and whether raised by the pleadings or otherwise, to be tried before, at or after the trial of the cause or matter, and may give directions as to the manner in which the question or issue shall be stated. Determining mode of trial (O. 33, r. 3)

(1) In every action begun by writ, an order made at the pre-trial case management shall determine the mode of trial; and any such order may be varied by a subsequent order of the Court made at or before the trial.

In any such action, different questions or issues may be ordered to be tried by different modes of trial and one or more questions or issues may be ordered to be tried before the others.”

If a formal deconsolidation of the KL Consolidated Suit No. 441 is thought to be desirable, such an application for deconsolidation can also be made. The procedure for deconsolidation has been judicially recognised by various decided cases, as is explained in detail by Wong Kian Keong JC (now JCA) in paragraph 50 of the judgment in Ranjeet Singh Sidhu v. Open Fibre Sdn Bhd & Ors [2015] 1 LNS 1012 reproduced below: “50(b) if the consolidation or joint hearing application is allowed in the 1st Case without hearing the Affected Parties, the Affected Parties may subsequently apply to "deconsolidate " the 1st and 2nd Cases (Deconsolidation Application) or have separate hearings for the 1st and 2nd Cases. The following cases have established that parties affected by a consolidation order under Order 4 rule 1(1) RC may make a Deconsolidation Application –

in Woodsville Sdn Bhd v. Tien Ik Enterprises Sdn Bhd & Ors and other appeals [2005] 2 CLJ 853, at 862, Ariffin Zakaria JCA (as he then was) held as follows in the Court of Appeal - 10 "The only way for either of the parties to overcome the earlier order for consolidation is for the parties to apply to the court for a deconsolidation order. (See Lewis v. Daily Telegraph (No. 2) [1964] 2 QB 601 CA).)" (emphasis added); and

(ii) Suriyadi Halim Omar J (as he then was) decided as follows in the High Court case of Maybank Finance Bhd v. Sharp Trillion

(M) Sdn Bhd [1998] 5 CLJ 452, at 454, 455-456, 457-458 and 460 - "Can a court "deconsolidate" after having granted the consolidation order much earlier? I believe so. Based on that belief I acquiesced to that application found in encl. which prayed that that consolidation order be set aside. .. Before the substantive submissions of both parties commenced, I was informed that there were no explicit statutory provisions in the Rules of the High Court which permitted me to "deconsolidate" the action after granting the earlier order. ... Before explaining my reasons for granting the "deconsolidation order", I need to stress that, even though the Rules of the High Court 1980 is silent on matters of this nature, or even the usage of this phrase, I find it highly effective in explaining the scenario. In its simplicity the situation is explained well. In the event the prayers of encl. 47 were allowed, technically speaking I would not be "deconsolidating" the case but merely putting parties in their original footing, after having reconsidered the matter. This would be so, as, once the order of 8 July 1998 was cast aside, status quo would return, thus ensuring that the four original actions would effectively be tried separately. There would be of no necessity to issue a consequential deconsolidation order. In spite of the above clarification, for purposes of efficacy, I will continue using the phrase "deconsolidation order", as prayer (a) of encl. 47 had printed and used the word " deconsolidate ". The grounds that I depended on to justify my setting aside/deconsolidation order could be split into three grounds, alternative in nature, namely that: 11

as the order had not been sealed and extracted (perfected), I was thus not prevented from recalling and reopening the matter;

as the inherent power of the judge being in conflict with explicit statutory provisions did not arise here, on the premise none were promulgated, a judge therefore has the jurisdiction to formulate the remedies; and

even if the order could be construed as final, (and did not permit its setting aside as it would be thereafter subject to an appeal) it did not prevent the court from modifying it. ... Inherent Powers Of Court To Formulate A Remedy When Necessary Order 92 r. 4 of the Rules of the High Court states that nothing in the Rules shall be deemed to limit or affect the inherent powers of the court to make an order as may be necessary to prevent injustice or to prevent an abuse of the process of the court. This provision which arms the judge with an effective weapon, has never failed to be invoked by judges whenever the situation warrants it. In the course of utilising these inherent powers, the judge must ensure that it does not have the effect of overriding express provisions. It is quite safe to say after scrutinising the rules of the High Court, that the fear of the inherent powers of the judge being in conflict with express statutory provisions, in relation to any deconsolidation application will not arise here. This is so as no express provisions have been promulgated with regard to it. The question that begs to be answered at this stage, is whether in the circumstances of the case, the court could formulate a remedy of deconsolidation when none has been provided for by parliament. Case laws are inclined towards the positive (Ho Yoke Kwei & Anor v. Ong Eng Hin [1997] 1 CLJ 647; [1997] 4 MLJ 292). In the case of Loo Chay Meng v. Ong Cheng Hoe (Gamuda Sdn Bhd Garnishee) [1989] 1 LNS 197; [1990] 1 MLJ 445, VC George J (as he then was) had occasion to stress that in a situation where there arises a lacuna in the face of the rules which causes a procedural injustice, in that it cannot be said that the rules contain provision making available sufficient remedies, the court not only is entitled to but obliged to make any order as may be necessary to prevent the injustice. 12 Therefore, in the alternative, as judges are conferred with inherent powers as provided for in the Rules of the High Court, I was obliged to formulate a remedy to overcome the problem that had occurred pursuant to the earlier consolidation order. In the circumstances of the case, so as to avoid injustice, the granting of the setting aside/deconsolidation order was in order. Modifying A Consolidation Order As much as O. 4 r. 1 of the Rules of the High Court provide for the consolidation of actions, the Legislature has also seen it fit to provide provisions which have the reverse effect. That pertinent provision is O. 15 r. 5, which confers power on judges to order separate trials. This provision reads:

If claims in respect of two or more causes of action are included by a plaintiff in the same action or by a defendant in a counterclaim, or if two or more plaintiffs or defendants are parties to the same action, and it appears to the Court that the joinder of causes of action or of parties, as the cause may be, may embarrass or delay the trial or is otherwise inconvenient, the Court may order separate trials or make such other order as may be expedient. The Supreme Court Practice 1995 vol. 1 part 1 at p. 197, had this to say regarding O. 15 r. 5 of the Rules of the Supreme Court: This rule enables the Court to exercise effective supervisory control over the joinder of parties and the joinder of causes of action. Rules 1 and 4, providing respectively for the joinder of causes of action and of parties, are both made subject to this rule. The rule applies where either the causes of action or the Joinder of parties or both may embarrass or delay the trial or is otherwise inconvenient. ... To wind up the matter, my course of action was an act of recalling and reopening the matter, and thereafter setting aside that earlier order. This was possible as:

the order of consolidation of 8 July 1998 was yet to be; 13

a better understanding of the situation showed that each case had different problems involving different issues and differing questions of law. The consolidation would embarrass or delay the trial, or otherwise would create inconvenience to all parties, including the court; and

it was desirable in the name of justice that the cases be tried separately." (emphasis added).

In considering and deciding this appeal at hand, this Court is aware that the Schedule to the Courts of Judicature Act read with the Rules of Court 2021 give the Court the discretion whether to order a stay of action or to strike out an action on ground of duplicity of proceedings. Having considered the pros and cons of the two alternatives for the exercise of discretion, this Court is in favour of striking out the Shah Alam Suit No. 6 on ground of duplicity of proceedings with clarification that such striking out does not create any res judicata to the pre-existing suit in KL Suit No. 441, instead of granting a stay of the Shah Alam Suit No. 6 pending the trial and disposal of the KL Suit No. 441. Among others, the reasons for such preference include:

Staying an action in Shah Alam court entails keeping a periodic update in the Court’s CMS system with periodic case management sessions to monitor and update on the progress of the KL Suit No. 441, thereby involving utilisation of the court’s times and resources to do the same and also the parties’ time and resources in attending the case management sessions.

There exists in Malaysia several data collection systems which promptly gather and collect updated data and information concerning companies and businesses including filing of court suits, and these include the banks' data system made available to all local banks, CTOS system made available to the public on subscription or upon fee payment. When a court suit has been filed in the court, the data on such court suit is very promptly captured by and recorded in the data collection systems and thereby brought to the attention of the banks and the business community. When a suit has been stayed pending the trial of another suit, the stayed suit is likely to be recorded as pending in such data systems, whereas a suit which has been struck out is likely to be recorded as struck out and terminated in such data system. Banks and businessmen are likely to view or react 14 negatively to companies with pending suits against the companies. As such, having a stayed action hanging over the heads of a defendant can have a negative impact upon his credit standing among the business community.

Whether the Shah Alam Suit No. 6 is stayed pending trial of KL Suit No. 441 or is struck out with clarificatory terms, the effect upon the Appellant/Plaintiff is the same.

In light of the above, this Court has come to the conclusion that in the interest of justice and in the interest of the overall system of administration of justice it is preferable that the Shah Alam Suit No. 6 be struck out with clarificatory terms rather than be stayed pending the trial and final disposal of the KL Suit No. 441.

In conclusion, this Court agrees with the Sessions Court that the Appellant/Plaintiff’s suit in Shah Alam Suit No. 6 is a duplication of the KL Suit No. 441.

However, this Court is of the considered view that the Shah Alam Suit No 6 should be struck out under O.18 r.19 of the Rules of Court 2012 and not dismissed. This is to prevent the argument that this decision in the Shah Alam Suit No, 6 has created res judicata to bar the trial of the issues pleaded herein. As such, this Court in the decision dated 8 March 2023 also included a clarification that the decision in Shah Alam Suit No. 6 does not create any res judicata to any of the issues in the KL Suit No. 441.

By reason of the aforesaid, this Court on 8 March 2023 dismissed the Appellant/Plaintiff’s appeal with costs, with the clarification that the duplicated issues in the Shah Alam Suit No. 6 ought to be tried in the KL Suit No. 441 or to be decided in any appeal which arised from the KL Suit No. 441 and that the decision in Shah Alam Suit No. 6 does not create any res judicata to the KL Suit No. 441. Dated this : 28th March 2023 15 Signed ..……............................................................. TEE GEOK HOCK JUDGE HIGH COURT OF MALAYA AT SHAH ALAM (NCvC 10) To the parties’ solicitors:

For the Appellant : Gurdial Kaur d/o Sohan Singh Messrs Gurdial Sohan & Co. (Kajang)

For the Respondent : Lew Ling Yao Angeline Messrs Calvin Khoo (Petaling Jaya)