XXXX v XXXX (BA-22NCVC-431-07/2016)

This is an appeal by the Plaintiff against the Court’s decision who declined to grant the Plaintiff leave to commence committal proceedings against the Defendant under Order 52 of the Rules of Court 2012, on the ground that the Plaintiff had not properly served the Defendant with the operative Court of Appeal order alleged to have been breached, having instead served a copy of the amended High Court order.

Enclosure 115 is the Plaintiff’s ex parte Notice of Application for leave to commence committal proceedings against the Defendant, her biological brother. Both siblings jointly own the land upon which a Hindu temple stands, historically associated with their family.

The Plaintiff claims to act as Secretary of Persatuan Penganut Sri Maha Mariamman (“Plaintiff Society”). The Defendant is the former President of the same society and currently operates a rival society known as Persatuan Penganut Arulmigu Sri Maha Mariamman, Pelabuhan Klang.

The dispute between the parties led to the filing of BA-22NCVC- 431-07/2016, resulting in a High Court order dated 28 February 2019 granting several injunctive reliefs recognising the Plaintiff Society’s committee and restraining the Defendant.

On 7 October 2020, the Court of Appeal varied the High Court’s order by removing references to the temple namely Kuil Sri Maha Mariamman at No. 324, Jalan Besar, Pandamaran 42000, Pelabuhan Klang, Selangor in paragraph (1), and deleting paragraphs (2) and (4). This variation is central to the present application.

On 2 January 2025, the Plaintiff obtained an amended version of the 2019 High Court order where a penal notice was endorsed upon it. The Plaintiff then served this amended High Court order via correspondence dated 22 February 2025.

The Plaintiff alleges that the Defendant continued to deny access to the temple, took exclusive control, issued receipts under the rival society, changed the temple signboard, and dismantled statues on 12 July 2025.

The Plaintiff claims such conduct amounts to wilful disobedience of the High Court order dated 28 February 2019, the Court of Appeal order dated 7 October 2020, and the amended High Court order dated 2 January 2025.

Thus, the present application is brought by the Plaintiff under Order 52 of the Rules of Court 2012 for leave to commence committal proceedings against the Defendant.

Contempt proceedings are quasi-criminal and must therefore comply strictly with procedural safeguards.

To obtain leave to commence committal, an applicant must prove: a) clear and unambiguous operative court order; b) personal service of that exact operative order, endorsed with a penal notice, on the person required to do or abstain from doing the act; c) knowledge of the operative order; d) wilful disobedience of the operative order’s terms.

Where an appellate court varies an order, the varied order supersedes the original order and becomes the sole operative order.

Service of lawyer’s correspondence is not service of a court order.

The issues for determination are: a) What is the operative order for contempt? b) Whether the operative order was duly served with a penal notice? c) Whether the alleged acts breach any surviving operative terms? d) Whether the strict requirements of Order 52 of the Rules of Court 2012 are met?

The Plaintiff submits that the Defendant had actual knowledge of all orders, was duly served with the amended order, and continued to act in defiance of court orders.

From the documentary record, the Defendant asserts that the High Court’s 2019 terms relating to temple management have been removed by the Court of Appeal; that only the amended High Court order was served (not the operative Court of Appeal order); and that the Plaintiff seeks to enforce terms that no longer exist.

The documentary record shows that the Court of Appeal on 7 October 2020 expressly removed all references to Kuil Sri Maha Mariamman from the High Court’s order and deleted paragraphs

and (4). Once varied, the appellate court’s version becomes the only operative order capable of enforcement. The penal notice endorsed on the earlier High Court order does not revive any deleted terms nor does it override the appellate court’s variation. The Plaintiff’s reliance on all three orders as if coextensively binding is inconsistent with appellate hierarchy. Accordingly, the Court holds that the sole operative order for contempt purposes is the Court of Appeal order dated 7 October 2020.

The Plaintiff’s evidence demonstrates that only letters dated 22 February 2025 and 12 June 2025 and the amended High Court order were served. There is no affidavit establishing personal service of the Court of Appeal order on the Defendant, nor is there evidence that a penal notice was endorsed on that appellate order. The Affidavit of Service confirms that only a letter was handed to a priest at the temple, which is neither personal service nor authorised substituted service. Because a contemnor must be served with the exact operative order bearing a penal notice, the absence of service of the Court of Appeal order is fatal.

The alleged acts — exclusive control of keys, administration of temple activities, issuance of receipts, changing signboards, and dismantling statues — concern temple management. However, the Court of Appeal has removed the temple-management paragraphs entirely from the High Court order. The Plaintiff therefore no longer enjoys injunctive protection over these matters, and contempt cannot be grounded on terms that have ceased to exist. A committal application must be tied to breach of an operative paragraph, not broad grievances.

Contempt requires strict procedural compliance. Here, the operative order was not served; service was irregular; the penal notice was attached only to an obsolete version of the order; and the alleged acts do not correspond to any surviving operative terms. These are not minor defects but strike at the foundation of committal jurisdiction. The Plaintiff has therefore failed to cross the mandatory threshold for leave.

For the reasons stated, the Plaintiff has failed to meet the strict requirements of Order 52 of the Rules of Court 2012.

Hence, the application for leave to commence committal proceedings (Enclosure 115) is dismissed. As this is an ex parte application, no order is made as to costs. Dated 10 December 2025 -sgd-DATO’ ANITA BINTI HARUN JUDICIAL COMMISSIONER HIGH COURT OF MALAYA SHAH ALAM SELANGOR DARUL EHSAN To the parties’ solicitors: For the Plaintiff : Balbeer Singh (Messrs Balbeer Singh & Associates)