Teh Chai Peng v Fiesta Untung Sdn Bhd (CB-24NCvC-16-01/2025)

The Plaintiff is the registered and lawful owner of two parcels of land held under GM 835 Lot 7628 and GM 815 Lot 7629, both situated at Mukim Gali, Ulu Gali, Raub, Pahang (“the said lands”).

The Defendant is a company incorporated on 12.09.2021 under the Companies Act 1965. The Defendant is engaged in the business of manufacturing, wholesaling, retailing, purchasing, selling, processing, packaging, transporting, and general trading of durians and other types of fruits, whether in their raw or processed form.

On 22.1.2025, the Plaintiff filed an Originating Summons in Enclosure 1 supported by an Affidavit in Enclosure 2, seeking inter alia, the recovery of vacant possession of the said lands, as follows: “untuk suatu perintah menyatakan bahawa dia hendaklah mendapatkan balik pemilikan bagi tanah yang dipegang di bawah GM 835, Lot 7628, Mukim Gali, Ulu Gali, Daerah Raub, Negeri Pahang Darul Makmur dan GM 815, Lot 7629, Mukim Gali, Ulu Gali, Daerah Raub, Negeri Pahang Darul Makmur atas alasan bahawa dia berhak mendapat balik pemilikan itu dan bahawa orang-orang yang menduduki itu telah menduduki tanpa lesen dan kebenaran.”

On 17.2.2025, the Defendant filed an interim interlocutory injunction against the Plaintiff in Enclosure 6, supported by an Affidavit in Enclosure 7, seeking inter alia the following relief: “(b) That the Plaintiff and/or its workers and/or its agents and/or any individuals that knows (or is in relation to) with the Plaintiff are restrained to enter or trespass the Defendant’s premise with the intent to obtain vacant possession of the premise held under GM 835, Lot 7628, Mukim Gali, Ulu Gali, Daerah Raub, Negeri Pahang Darul Makmur and GM 815, Lot 7629, Mukim Gali, Ulu Gali, Daerah Raub, Negeri Pahang Darul Makmur (‘said premise’) and/or attempting to touch and/or remove any of the Defendant’s assets pending the disposal and/or full hearing of this action;

Such other further orders and reliefs as this Honourable Court may deem fit and proper.”

Enclosures 1 and 6 were then fixed for hearing on 14.11.2025 and subsequently for decision on 5.12.2025, whereby Enclosure 1 was allowed with cost of RM5,000.00 and Enclosure 6 was dismissed with cost of RM5,000.00.

On 29.12.2025, the Defendant filed a Notice of Appeal against the granting of Enclosure 1 only.

A factory building has been constructed on the said lands. The Plaintiff’s ownership is supported by the land titles and a Sale and Purchase Agreement dated 22.12.2023 (“Sale and Purchase Agreement”).

The Plaintiff discovered that the Defendant was occupying the said lands and factory without the Plaintiff’s consent or permission. At no material time did the Plaintiff enter into any tenancy or lease agreement with the Defendant, nor did the Plaintiff receive any rental payments from the Defendant. The Plaintiff maintains that the Defendant’s occupation was entirely without licence or consent.

The Plaintiff subsequently lodged Police Report No. AIR ITAM/004367/24 dated 19.12.2024 (“Police Report”), stating that the Plaintiff had not entered into any tenancy and/or lease agreement with the Defendant and that the alleged lease agreement is fraudulent as he never signed it.

On 22.1.2025, the Plaintiff commenced this action by way of Enclosure 1 pursuant to Order 89 of the Rules of Court 2012 (“Order 89”), seeking recovery of vacant possession. The hearing of Enclosure 1 was initially fixed but subsequently stayed following the appointment of an Interim Liquidator over the Defendant company pursuant to winding-up proceedings. The action was stayed under section 471 of the Companies Act 2016 (“CA 2016”), and the Plaintiff later obtained leave of court on 2.9.2025 to proceed with the present action. At the material time, the Defendant had not yet been wound up but remained under the management of an Interim Liquidator.

The Plaintiff argues that this is a proper case for summary recovery of possession under Order 89. As the registered owner, the Plaintiff has clearly established his proprietary interest in the land and factory, and has deposed that the Defendant entered into and remained in occupation without licence or consent. The Plaintiff submits that all procedural and substantive requirements under Order 89, including the filing of a supporting affidavit setting out ownership and unlawful occupation, have been fully satisfied.

The Plaintiff further contends that the Defendant has failed to raise any triable issues that would justify the matter proceeding to a full trial. In particular, the Plaintiff highlights that the Interim Liquidator appointed over the Defendant has not filed any affidavit to oppose

The Plaintiff submits that given the appointment of the Interim Liquidator, any opposition by a director or third party without proper authority is unsustainable. The absence of any affidavit from the Interim Liquidator is said to amount to a failure to contradict the Plaintiff’s positive assertions, which should be treated as an admission.

In the alternative, even if the Defendant’s affidavits are considered, the Plaintiff submits that the Defendant’s alleged defence is wholly untenable. The Defendant claims the existence of a lease agreement, but the Plaintiff asserts that the document relied upon is a fabrication. The alleged agreement is undated, contains no clear commencement or expiry of tenancy, is not witnessed, bears signatures that are disputed by the Plaintiff, and is supported only by a unclear image of a stamping certificate. No evidence of rental payment has been produced to support the existence of any tenancy.

The Plaintiff also relies on documentary evidence from the Defendant’s own company, including a letter from one of the Defendant’s directors, confirming that no tenancy agreement had ever been entered into between the Plaintiff and the Defendant. On this basis, the Plaintiff submits that the Defendant’s claim of lawful occupation is an afterthought raised solely to delay the proceedings and to deny the Plaintiff his proprietary rights.

The Defendant’s case is that the Plaintiff’s application for summary possession under Order 89 is misconceived and ought to be dismissed because the Defendant is not a trespasser. The Defendant maintains that it occupies the land pursuant to a valid and binding lease agreement entered into with the Plaintiff. As long as that lease has not been set aside or declared void by the court, the Defendant says it has a lawful right to remain in possession of the land and factory.

The Defendant firmly denies the Plaintiff’s allegation that the lease agreement is forged. The Defendant argues that the agreement was duly signed by both parties and is therefore presumed valid and enforceable under established principles of contract law. Whether the lease is authentic or forged is, according to the Defendant, a serious dispute of fact and law that cannot be resolved on affidavit evidence alone. This dispute goes to the very root of the Defendant’s right to occupy the land and necessarily requires a full trial with oral evidence and cross-examination.

On this basis, the Defendant submits that the matter is unsuitable for summary determination under Order 89. The Defendant argues that Order 89 is only intended for clear cases of trespass, and that it is sufficient for a defendant to raise a single triable issue of fact or law to defeat such a summary application. The existence of a lease agreement and the conflicting affidavits regarding its validity are said to be more than enough to warrant a trial rather than a summary eviction.

The Defendant further argues that the Plaintiff’s delay in taking action undermines the urgency and credibility of the claim. The Defendant says it has been in open and uninterrupted occupation of the land since around November 2023, operating its business without objection from the Plaintiff for almost a year. This prolonged inaction, according to the Defendant, suggests that the Plaintiff was aware of the Defendant’s occupation and casts doubt on the Plaintiff’s assertion that immediate summary relief is justified.

Finally, the Defendant contends that granting the Plaintiff’s application would cause serious prejudice and hardship. An order for immediate possession would disrupt the Defendant’s ongoing business operations and effectively deprive the Defendant of its rights under the lease agreement without a proper determination of the disputed issues. For these reasons, the Defendant submits that the Plaintiff’s application should be dismissed and the dispute should proceed to a full trial.

For ease of reference, Order 89 is reproduced below: “Proceedings to be brought by originating summons (O. 89, r. 1)

Where a person claims possession of land which he alleges is occupied solely by a person or persons (not being a tenant or tenants holding over after the termination of the tenancy) who entered into or remained in occupation without his licence or consent or that of any predecessor in title of his, the proceedings may be brought by originating summons in accordance with the provisions of this Order.”

The nature of summary procedure under Order 89 has been succinctly laid down by the Supreme Court in Chiu Wing Wa & Ors v. Ong Beng Cheng [1994] 1 MLJ 89 as follows: “The distinction is relevant for the purpose of O 89(1) of the RHC which provides:

(1)Where a person claims possession of land which he alleges is occupied solely by a person or persons (not being a tenant or tenants holding over after the termination of the tenancy) who entered into or remained in occupation without his licence or consent or that of any predecessor in title of his, the proceedings may be brought by originating summons in accordance with the provisions of this Order. The words in the parentheses are crucial. If the appellants are tenants holding over after termination of the monthly tenancy by the notice to quit, then O 89 is inapplicable. It should be noted that O 89 has its origin in O 113 of the English Rules, and the principle behind McPhail v Persons, Names Unknown; Bristol Corp v Ross 1 is clearly to limit the operation of the summary procedure of O 89 to trespassers pure and simple, whether known or unknown. In our view, the summary procedure should not be allowed to apply where the entry to the land in the first instance is lawful, for in such a situation, there must necessarily be the facts and the law for determination by evidence viva voce. In this connection, we approve the judgment of Wan Adnan J in Hotel Ambassador (M) Sdn Bhd v Seapower (M) Sdn Bhd 2 as discussed by Edgar Joseph Jr J (as he then was) at p 224, and upheld by the Supreme Court.”

The Supreme Court then went on to explain the principles under Order 89 as follows at page 94: “The summary procedure under O 89 is governed by the same principles as those under O 14 of the RHC 1980. To entitle a defendant to a trial, all he needs to do is to show that there is a triable issue of law or fact. It is only in clear cases of trespass that a summary order can be made under O

The learned judicial commissioner did not seem to address his mind sufficiently to the importance of determining the existence or absence of triable issues. It is unfortunate that the learned judicial commissioner did not give due consideration to the Federal Court decision of Leong Yoong v Lee Sem Yoong 3 (cited to him in argument) where it was held that where reliance is placed on the provision of the Act to avoid eviction by landlord, all that the tenant has to do is to show that he is a protected tenant under the Act. In the circumstances, the application by originating summons although remedied by the learned judicial commissioner to one under O 89 of the RHC should be dismissed as there are triable issues of fact and law, and as such the application for vacant possession ought to have been commenced by writ.”

The same was followed by the Federal Court in the case of Shaheen Abu Bakar v. Perbadanan Kemajuan Negeri Selangor [1996] 1 MLJ 285, wherein the apex court held as follows: “(2) Order 89 does not stipulate that only a registered proprietor may invoke its provisions. The order is silent on the issue of standing. Therefore, it is for the court to determine, according to the facts of each case, whether a particular plaintiff has standing to make an application (see p 835G).

Order 89 r 3(a) merely requires that the person claiming possession of land should state his interest in the land in question. Once this is done, it is for the court to decide whether the interest disclosed is sufficient to support the claim for possession (see p 835H).

The test of standing to be applied in cases under O 89 is one based upon a right to possession. The question that has to be asked is whether, given the peculiar circumstances of the particular case, the plaintiff has a right to possession of the land. Cases may arise where a negative response may be drawn to that question, although the plaintiff is the registered proprietor of the land, as he has parted wholly with his right to possession to some other person. In the present appeals, the trial judge came to the conclusion that although neither respondent was the registered proprietor of the land, each had standing to apply under O 89 by reason of the letter of approval (see p 836A-F).

The two elements that oust the operation of O 89 are as follows: (i) the initial entry upon the land must be lawful; and

(ii) the existence of any express or implied consent or licence on the part of the owner pursuant to which the occupation continued. In respect of the second element, all that need be shown to exclude O 89 is that the issue of consent or licence is triable. The question whether the ouster elements exist in a given case depends upon its particular facts (see p 838A-C); Bohari bin Taib & Ors v Pengarah Tanah dan Galian [1991] 1 MLJ 343 followed.” 12 24. In light of the foregoing authorities and the express wording of Order 89, the essential ingredients to invoke the summary procedure are now clearly established, namely:

the applicant has a claim to possession of the land;

that the land is occupied solely by the respondent;

that the respondent is not a tenant nor a tenant holding over after the termination of any tenancy; and

that the respondent entered into or remains in occupation without the licence or consent of the applicant or any predecessor in title.

The jurisprudence from Chiu Wing Wa and Shaheen Abu Bakar makes it abundantly clear that Order 89 is confined to cases of trespassers “pure and simple” and may only be engaged where the entry or continued occupation is unlawful with no arguable basis of licence, consent, or other legal right. Conversely, where the respondent raises any bona fide triable issue of fact or law, particularly as to the existence of a tenancy, licence, or other lawful basis of occupation, the matter falls outside the narrow ambit of Order 89 and must proceed by way of a full trial.

Accordingly, Order 89 is applicable only in clear cases of trespass.

Having carefully read, considered, and evaluated the written submissions and oral arguments advanced by both parties, together with the affidavits and the relevant statutory provisions and authorities cited, this Court finds merit in the Plaintiff’s application. Accordingly, Enclosure 1 is allowed. The reasons for this Court’s decision are set out below. Whether The Plaintiff is the Lawful Owner of the Said Lands

The Plaintiff has established that he is the registered and lawful owner of the subject lands and factory. The Defendant does not dispute the Plaintiff’s title. Accordingly, the Plaintiff has demonstrated his proprietary right to possession, which entitles him to seek recovery of vacant possession under Order 89.

The Plaintiff has further shown on affidavit evidence, that the Defendant entered into and remains in occupation of the lands without the Plaintiff’s licence or consent. The Plaintiff has consistently maintained that no tenancy or lease agreement was ever entered into, and that no rental was ever paid or accepted. These facts satisfy the substantive requirements under Order 89 for summary recovery of possession, as iterated in the Federal Court case of Shaheen Bte Abu Bakar. Whether the Defendant has Raised Bona Fide Triable Issues

The Defendant has raised the following purported triable issues:

Whether the Defendant was granted permission to occupy the said lands by the previous owner of the said lands; and

Whether there exists a valid and lawful lease agreement between the Plaintiff and the Defendant which allows the Defendant to occupy the said lands. 14 31. In respect of whether the Defendant was granted permission to occupy the said lands by the previous owner of the said lands, this court finds that such an averment without any contemporaneous evidence to support it carries no weight. This is more so when the Plaintiff had put the Defendant to strict proof thereof and the Defendant had failed to show:

Any tenancy/lease agreement entered into by the previous owner and the Defendant;

Particulars of the individuals granting permission and/or the previous owner; and

Any other evidence in support of such a contention.

That being the case, the Defendant had made a bare averment, unsupported by any cogent evidence and failed to raise a triable issue in the circumstances.

In relation to whether there exists a valid and lawful lease agreement between the Plaintiff and the Defendant which allows the Defendant to occupy the said lands, the Plaintiff had demonstrated through affidavits and submissions that the lease agreement produced by the Defendant is riddled with irregularities and inconsistencies. Among others, the alleged lease agreement:

bears no date;

contains no specification of commencement or expiry of the lease;

is not witnessed by any party; and

carries signatures that are disputed by the Plaintiff, as evident in the Police Report lodged by the Plaintiff.

Therefore, the absence of any proof of rent payments further undermines the Defendant’s claim of a valid lease agreement. Counsel for the Defendant also confirmed that no payments for rent had ever been made till to-date.

More significantly, the Plaintiff in Enclosure 15 has exhibited at page 15, a letter dated 6.12.2024 from Datuk Lim Siow Jin, a director and 50% shareholder of the Defendant company, expressly confirming that no tenancy agreement was ever entered into between the Defendant and the Plaintiff.

The aforementioned director further stated that any purported agreement was not approved by the Board of Directors and may involve serious elements of forgery. This admission from within the Defendant company itself decisively corroborates the Plaintiff’s denial of any lease and fatally weakens the Defendant’s assertion of lawful occupation.

This letter, coming from a director and 50% shareholder of the Defendant company speaks volumes. It squarely raises the question of how a director and substantial shareholder could have no knowledge of a lease agreement purportedly entered into by the company. This fatally undermines the Defendant’s position and extinguishes any suggestion that a triable issue has been raised. More so, when he also states in the said letter that there may be serious elements of forgery involved. The said letter dated 6.12.2024 at page 15 of Enclosure 15 is as follows:

This contention is further supported by the Plaintiff lodging a Police Report, as soon as the Plaintiff came to know the Defendant was occupying its lands without permission.

Therefore, in the absence of cogent evidence establishing a genuine tenancy or lease, the Defendant’s assertion does not rise beyond a bare allegation and does not constitute a triable issue.

The Court is also satisfied that this is not a case involving competing proprietary or contractual rights requiring oral evidence. Rather, the dispute turns on straightforward issues of ownership and unlawful occupation, which can be properly and justly determined on affidavit evidence. This is precisely the type of case that Order 89 was designed to address, namely, to enable a registered owner to regain possession without being subjected to protracted litigation.

On the totality of the evidence, it has been proven that the Defendant has remained in occupation without her consent and/or license of the Plaintiff and/or that of any other predecessor of the said titles.

Therefore, this court is of the view that the Defendant has failed to raise any bona fide triable issue that would render the summary procedure under Order 89 inappropriate. The Defendant’s reliance on an alleged lease agreement is unsupported by credible or admissible evidence.

To deny the Plaintiff summary relief would unjustly deprive the Plaintiff of the use and enjoyment of his own property and lands and compel him to endure unnecessary delay and expense, despite the absence of any credible defence by the Defendant. More so when the Defendant, having failed to establish any lawful basis for its occupation, cannot rely on delay or alleged hardship to defeat the Plaintiff’s clear proprietary rights.

For these reasons, Enclosure 1 is allowed with cost of RM5,000.00. Dated this 9th February 2026. YA Tuan Kuldeep Kumar A/L Jamna Dass Judicial Commissioner High Court Temerloh Solicitors for the Plaintiff: Messrs. Faris Abrar & Co. (Muhammad Faris Abrar bin Othman)