Sugayindran A/L Vellasamy v 1. ) Pengarah Tanah dan Galian Wilayah Persekutuan, Kuala Lumpur (WA-21NCvC-59-08/2024)

DAN PENGARAH TANAH DAN GALIAN

KUALA LUMPUR KERAJAAN MALAYSIA …DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT (Enclosure 11) INTRODUCTION [1] This is an application made by the Defendants pursuant to Order 18 Rule 19(1)(a), (b) and/or (d) of the Rules of Court 2012 (ROC) to strike 13/08/2025 09:56:24 WA-21NCvC-59-08/2024 Kand. 27 out and/or dismiss the Writ of Summons and Statement of Claim filed by the Plaintiff against the Defendants. BRIEF FACTS [2] The Plaintiff, who claims to be the administrator of the Estate of Sinnaiyah a/l Thiraman, seeks a declaration as a registered and beneficial owner of Geran C.T 8139 (Land), that includes:

Lot 1 hingga 7, Seksyen 95, Bandar Kuala Lumpur;

Lot 29 dan 30, Seksyen 95A, Bandar Kuala Lumpur;

Lot 41 hingga 43, Seksyen 98, Bandar Kuala Lumpur;

Lot 40 hingga 44, Seksyen 98, Bandar Kuala Lumpur;

Lot 4219 hingga 4222, Mukim Kuala Lumpur;

Lot 26 dan 27, Seksyen 95, Bandar Kuala Lumpur; dan

Lot 3765, 3766 hingga 3809, Bandar Kuala Lumpur. [3] According to the Plaintiff, the Land was initially registered in the name of the late Sinnaiyah a/l Thiraman (also known as Sinniah a/l Thiruman) (Deceased) in the 1940s. The Plaintiff further avers that, at all material times, the Deceased was the rightful and registered proprietor of the Land. [4] The Plaintiff pleaded that the Defendants had wrongfully and/or unlawfully transferred the Land to a third party. Such transfer was allegedly carried out through fraudulent means and/or as a result of the Defendants’ negligence and/or misconduct. [5] Hence, the Plaintiff seeks for a declaration that the Plaintiff is a beneficial and registered proprietor of the Land and entitled for the damages as consequence to the alleged transfer of the Land. [6] Summarily, the Plaintiff based his claim on the following-

Certificate of title No. 8139;

Federal Gazette dated 4.3.1948;

Order of the High Court in Originating Summons No. WA24NCVC-900-04/2019 dated 12.7.2029 by way of an ex parte application. [7] On the other hand, the Defendants contended that the Plaintiff had on numerous occasions, instituted Originating Summons (OS) proceedings against the Defendants, premised on the same grounds and/or claims as outlined in paragraph 16(i) to (iii) of the Statement of Defence (Enclosure 8) and that all the OS previously initiated by the Plaintiff against the Defendants, have been duly dismissed by the High Court. [8] It was also the contention of the Defendants that the First Defendant cannot, in law or in fact, be presumed to be the same legal entity as the Government of the State of Selangor. The Federal Territory of Kuala Lumpur, as a distinct administrative and legal entity, was only established on 1.2.1974, and therefore the First Defendant did not have any authority or involvement over matters predating its establishment especially in relation to C.T

[9] Furthermore, the land record of C.T. 16860, clearly reflects that Sinniah a/l Thiruman (also known as Sinnaiyah a/l Thiraman) had, as early as July 1963, transferred his half ½ shares of the Land to an individual by the name of Abdul Majid Khansanof Sabib. This entry in the title document speaking on itself that the said transfer occurred prior to the establishment of the Federal Territory and well before any involvement by the Defendants. FINDINGS AND ANALYSIS [10] The provisions on striking out of pleadings are provided in Order 18 Rule 19(1) of the ROC which is reproduced- “19. Striking out pleadings and endorsements (O. 18 r. 19)

The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, on the ground that—

it discloses no reasonable cause of action or defence, as the case may be;

it is scandalous, frivolous or vexatious;

it may prejudice, embarrass or delay the fair trial of the action; or

it is otherwise an abuse of the process of the Court, and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

No evidence shall be admissible on an application under subparagraph

(1)(a).

This rule shall, as far as applicable, apply to an originating summons as if it were a pleading.” [11] Among the binding authorities on striking out a Plaintiff's suit summarily are Bandar Builder Sdn Bhd & Ors v. United Malayan Banking Corporation Bhd [1993] 1 MLRA 611; [1993] 3 MLJ 36; [1993] 4 CLJ 7; [1993] 2 AMR 1969, Sim Kie Choon v. Superintendent of Pudu Prison & Ors [1985] 1 MLRA 167; [1985] 2 MLJ 385; [1985] CLJ (Rep) 293, Middy Industries Sdn Bhd & Ors v. Arensi-Marley (M) Sdn Bhd [2013] 3 MLRA 114; [2013] 3 MLJ 511; [2012] 1 LNS 830, Gasing Heights Sdn Bhd v. Aloyah bte Abd Rahman & Ors [1996] 2 MLRH 631; [1996] 3 MLJ 259; [1996] 3 CLJ 695; [1996] 3 AMR 3000 & Seruan Gemilang Makmur Sdn Bhd v. Kerajaan Negeri Pahang Darul Makmur [2016] 3 CLJ 1; [2016] 3 MLJ 1; [2016] 2 MLRA 263. [12] In this regard, this Court is guided by the case of New Straits Times (Malaysia) Bhd v. Kumpulan Kertas Niaga Sdn Bhd [1984] 1 MLRA 771; [1985] 1 MLJ 226; [1985] 1 LNS 1, where the Federal Court held- ‘It is therefore clear law that in an application to strike out pleadings under Order 18 Rule 19(1)(a), no evidence shall be admissible, and the court must consider only the pleadings for the purpose of determining whether the Statement of Claim disclosed no reasonable cause of action or Statement of Defence disclosed no defence. The test to be applied is whether on the face of the pleading, the court is prepared to say that the cause of action or the defence is obviously unsustainable…’ [13] Further, in determining whether the Statement of Claim is scandalous, frivolous, vexatious or is an abuse of court’s process, the Court of Appeal in Harapan Permai Sdn Bhd v. Sabah Forest Industries Sdn Bhd [2010] 3 MLRA 37; [2011] 2 MLJ 192; [2011] 1 CLJ 285, held that in the context of Order 18, rule 19(1)(b) of the ROC, the word ‘scandalous’ means wholly unnecessary and irrelevant and not just unpleasant allegations. Likewise, the words ‘frivolous’ or ‘vexatious’ means obviously unsustainable- “In the context of O 18 r 19(1)(b), the word ‘scandalous’ means wholly unnecessary and irrelevant, and not just unpleasant allegations: Boey Oi Leng (t/a Indah Reka Construction & Trading) v Trans Resources Corporation Sdn Bhd [2001] MLJU 566; [2001] 4 AMR 4807 (HC). A pleading is ‘frivolous or vexatious’ when it is obviously unsustainable. In the light of the factual background as alluded to above, we are of the view that the action instituted by the plaintiff against the defendant is not wholly unnecessary and irrelevant. Hence, it cannot be said to have come within the scope of the words ‘scandalous, frivolous or vexatious”. [14] Additionally, in the case of Harapan Permai Sdn Bhd (supra), ‘abuse of the process of the court’ under Order 18, rule 19 (1)(d) of the ROC means that the process of the court has not been used in a bona fide manner and the process has been abused. It was held- “An ‘abuse of the process of the Court’ arises under O 18 r 19(1)(d) where the process of the court has not been used in a bona fide manner and the process has been abused: see eg Gabriel Peter & Partners (suing as a Firm) v Wee Chong Jin & Ors [1998] 1 SLR 374 at p 384 (CA); Desa Saujana Corporation Sdn Bhd & Ors; and Hadi bin Hassan v Suria Records Sdn Bhd & Ors [2005] 3 MLJ 522 (HC). In this context, it is appropriate for us to examine the issue of illegality and s 24(6) raised for the defendant.” [15] Likewise, in Middy Industries Sdn Bhd & Ors v. Arensi-Marley (M) Sdn Bhd [2013] 3 MLRA 114; [2013] 3 MLJ 511; [2012] 1 LNS 830, the Court of Appeal held- “[7] The words "frivolous or vexatious" generally refer to a groundless action or statement with no prospect of success, often raised to embarrass or annoy the other party to the action. [10] In short, the words "frivolous or vexatious" under r. 19(1)(b) refer to cases which are obviously unsustainable or wrong. The words connote purposelessness in relation to the process or a lack of seriousness or truth and a lack of bona fide; they also include proceedings where a party is not acting bona fide and merely wishes to annoy or embarrass his opponent, or when it is not calculated to lead to any practical result”. [16] This Court agrees with the contention of the Defendants that the pleadings are bereft of material particulars and lack the requisite elements to constitute a legally sustainable claim and that the Plaintiff has not pleaded with sufficient clarity the nexus between the Defendants and the alleged wrongdoing, nor has it been shown that the Defendants owed any statutory duty or fiduciary obligation to the Plaintiff. [17] This Court also observed the contention of the Defendants that C.T. 8139, was never in the custody and/or possession of the Defendants at any material time. Accordingly, the Defendants cannot be held liable for any alleged actions or omissions pertaining to the said title of C.T 8139 as C.T. 8139 was issued by the ‘Government of Selangor’, and at the material time, the First Defendant were not yet in existence, given the fact that the Federal Territory of Kuala Lumpur was only established on 1.2.1974. The First Defendant merely assumed jurisdiction and authority over the continued title of C.T. 8139, which is C.T. 16860. [18] Therefore, the Defendants are not the proper parties to be sued in this claim, hence considered as frivolous and vexatious. The inclusion of the Second Defendant, in the present suit is also misconceived in law as under the Federal Constitution, land matters fall within the exclusive jurisdiction of the State Government as provided under Article 74(2) of the Federal Constitution, read together with List II (State List) of the Ninth Schedule, that “land” is a matter within the legislative competence of the State. [19] Furthermore, this Court finds that the Plaintiff has failed to plead in particularity, the specific date or period when the alleged cause of action is said to have accrued. This omission renders the Plaintiff’s claims against the Defendants vague and unsustainable as no clear or reasonable cause of action has been properly pleaded, thereby failing to comply with the fundamental requirements of pleadings under the ROC. In Tung Kean Hin & Anor v. Yuen Heng Phong [2019] 9 CLJ 493; [2019] 3 MLRA 580, as per Hasnah Mohammed Hashim JCA (as the Right Honourable CJM was), in delivering the judgment of the court, held- “(2) When fraud is relied on, it must be sufficiently alleged in the pleading to bring the case within the appropriate statutory provision. The plaintiff failed to state in her pleadings how she was kept from the knowledge of the transfer and the fraud, if at all. It was necessary that there must be something said or done which was the reason to keep the plaintiff from the knowledge of her right to sue. There was no affirmative act on the part of the defendants 'to deceive or lull' the plaintiff from taking any action making inquiries into the facts relevant to her right to bring an action. The plaintiff had slept upon her rights and acquiesced for a great length of time, which was, for more than 50 years. Thus, by reason of the inordinate delay and by her own conduct, the plaintiff's claim was barred by laches. (See paras 40 & 42)

It is trite law that particulars of fraud must not only be pleaded, but must be specifically pleaded so that the other party will not be taken by surprise and will know precisely the accusation against him. A general allegation of fraud is insufficient to mount the averment of fraud. The plaintiff's pleadings on the issue of forgery and/or fraud was clearly insufficient and the issue was not addressed and considered by the Judicial Commissioner ('JC'). The non-particularisation of the allegation of fraud by the plaintiff was clearly fatal. (See paras 48 & 49).” [20] This Court finds that the lack of particularity as well as the lack of disclosure of material facts, upon which the cause of action has accrued, may indicate the question of whether the Plaintiff's claim is barred by the Limitation Act 1953 and the Public Authorities Protection Act 1948 (PAPA). It is trite that actions for recovery of land against the Government are also subject to statutory limitation under Section 2 of PAPA (See also Fun Fatt (sebagai pentadbir dan benefesiari tunggal harta pusaka Lo Pang @ Fun Lim, si mati) v. Datuk Bandar Kuala Lumpur [2023] 8 CLJ 543; [2023] MLJU 1622 (CA). [21] For completeness, this Court finds that this action is struck out on the following grounds-a) The Defendants are not the proper parties to be named in these proceedings, as C.T 8139 was never in the custody or possession of the Defendants; b) The Plaintiff has failed to establish any nexus or connection between C.T 8139 and the Defendants; c) Further, the Plaintiff’s pleadings failed to disclose a reasonable cause of action and lack the requisite particularity, specifically in relation to the alleged fraud, the time the cause of action arose, and any alleged breach of statutory duty; and d) If the cause of action is clearly ascertained, there may be an indication that the action is time-barred under PAPA. CONCLUSION [22] Based on the above deliberations, Enclosure 11 is allowed with costs. Dated: 13 AUGUST 2025 -SGD- (SUZANA BINTI MUHAMAD SAID) Judicial Commissioner of the High Court NCVC 1 Kuala Lumpur COUNSELS For the Plaintiff : V. Rajadevan dan Kumaradevan Rajadevan Tetuan Rajadevan & Associates For the Defendants : Iskandar Zulkarnaen b Che Mohd Nor Jabatan Peguam Negara