474 South Engineers Sdn Bhd v.

Unknown Occupiers of Lot 134K, [1998] 6 MLRH

SOUTH ENGINEERS SDN BHD

v.
UNKNOWN OCCUPIERS OF LOT 134K,

High Court, Kuala Lumpur

Abdul Kadir Sulaiman J
[Civil Appeal No. R1-12-221-96]
25 September 1998

JUDGMENT
This is an appeal by the Plaintiff in the Sessions Court Kuala Lumpur appealing
against the decision of the learned judge dismissing its application for summary
judgment under Order 26A of the Subordinate Courts Rules 1980 (hereinafter
referred to as "the 1980 SCR"). The claim of the Appellant against the
Respondents/Defendants is for vacant possession of Lot 134K, Jalan Chan Sow
Lin, Kuala Lumpur (hereinafter referred to as "the premises"), the leave of the
court to issue writ of possession of the said premises, general damages and costs. It
is averred that the Respondents, Unknown Occupiers, have occupied the said
premises without a licence or the leave of the Appellant. Prior to the occupation of
the premises, it was rented out to one Madam Foong Lum on a month to month
basis until she died. Appropriate notice had been given to the occupiers to vacate
the premises but they have failed to do so. Despite the request made, the occupiers
had failed to establish their licence to occupy the said premises. For the illegal
occupation, the Appellant had suffered the loss of right to use the said premises.
To this claim of the Appellant, one Kok Tuck Seng filed his defence admitting
himself as the present tenant of the said premises having in occupation of same
prior to 1948 together with Madam Foong Lum who was his legitimate mother.
Hence he is a protected tenant under the Control of Rent Act 1948 and therefore,
the Appellant is not entitled to vacant possession of the premises.
The application of the Appellant is supported by an affidavit of Lee Kung Wah,
one of its directors. The Appellant exhibited the land title under Pajakan Negeri
No. 1423 Lot No. 344 Section 92 in Wilayah Persekutuan, Kuala Lumpur to
establish that it is the registered lessee of the said property and deposed that the
said premises form part of the said property rented out to Madam Foong Lum on a
month to month basis. The Appellant also exhibited copies of rent receipts issued
to Madam Foong Lum for the months of August 1985 to August 1987 in respect of
monthly rental collected. Lately it came to the knowledge of the Appellant that the
said Madam Foong Lum was dead and found that the Respondents whose
identities were not known to it, had occupied the said premises without licence or
its consent. On several occasions the Appellant had requested the Respondents to
hand over vacant possession but the Respondents refused. By its solicitors' letter of
[1998] 6 MLRH South Engineers Sdn Bhd v. Unknown Occupiers of Lot 134K, 475

23rd May 1995 which was hand delivered and also by post, the Respondents were
asked to show evidence of their licence to occupy or of any tenancy agreement in
respect of the premises. If they fail to do so it would be assumed that the
occupation was without licence or leave of the Appellant. The letter also gave
notice to the Respondents to deliver up the vacant possession of the said premises
by 30th June 1995. The Appellant exhibited a copy of the said notice with proof of
delivery and posting thereof to the Respondents. To date the Respondents had
failed to respond to the request. The said affidavit also drew the attention of the
defence of the Respondents as contained in their statement of defence mentioned
earlier. The Appellant denies that Madam Foong Lum was the tenant of the said
premises since before 1948 and that it does not know Kok Tuck Seng who claimed
in the defence as the present tenant of the premises. The Appellant knew only
Madam Foong Lum as its monthly tenant as evidence from the rent receipts. The
Appellant also denies that the said premises is subject to the Rent Control Act and
that the Respondents are protected tenant, and that the averment of the
Respondents is but a bare denial. In the circumstances, the Respondents have no
defence to the action.
In reply, Kok Tuck Ching of Nric No. 2149532 affirmed an affidavit and claimed
that he is the tenant of the said premises. He exhibited land rent receipt dated 3rd
June 1945 issued by Lim Tho of Lim Company to Kok Yee Chow acknowledging
the receipt of a sum of RM28.00 being land rent for the month of June in respect of
No. 134 K-L, Jalan Chan Sow Lin. This affidavit in reply of the Respondents goes
on to state that Kok Yee Chow is the father of the deponent and he together with
Madam Foong Lum and Kok Yee Chow lived on the premises since before 1948
and Madam Foong Lum, his mother became a tenant of the premises since his
father passed away thirty years ago i.e. in 1965 and he became the tenant since the
death of his mother, Madam Foong Lum when he was then passed eighteen years
old. However, there is no evidence as to when this Madam Foong Lum died. He
further deposed that had it not been a rent controlled premises, the rental per
month paid to the Appellant would have been the market value which is more than
RM110.00 per month.
The procedure for summary judgment under O. 26A of the 1980 SCR is equivalent
to the procedure for summary judgment in the High Court under O. 14 of the
Rules of the High Court 1980 (hereinafter referred to as "the 1980 RHC"). For a
plaintiff to succeed in his claim in the suit against a defendant he must show that
the suit is virtually uncontested or uncontestable for the object is to put an end to a
defence which is nothing but a sham one. In other words, there is no issue raised in
the defence which ought to be resolved at the full trial of the action. Where the
issues are clear, summary judgment will be given to the plaintiff. The evidence for
a summary judgment proceedings is by way of affidavits tendered by both sides.
These affidavits cannot, however, go beyond those matters which are not pleaded
in the pleadings of both parties for any defect or omission in the pleading, in this
case the statement of defence of the Respondents cannot be made good by affidavit
 476 South Engineers Sdn Bhd v. Unknown Occupiers of Lot 134K, [1998] 6 MLRH

evidence. See Gold Ores Reduction Co. v. Parr (2 QB 14). In this case, by deposing
Kok Yee Chow as his father where no mention of this fact in the statement of
defence means nothing for the Respondents but to improve the evidence where
there was none in the pleading. When preparing the statement of defence the
Respondents ought to have known what the defence is going to be as against the
statement of claim of the Appellant. But surprisingly no mention was made about
the father in the pleadings. In the circumstances, this additional evidence should
not be allowed to assist the Respondents.
On this affidavit evidence itself, the deponent is one Kok Tuck Ching who claims
himself to be the occupier of the said premises. However, in the statement of
defence, the occupier is said to be Kok Tuck Seng. The Respondents may say that
they are one and the same person. But where is the evidence for that? On this
ground alone, the affidavit in reply of the Respondents ought to be rejected thereby
leaving the Respondents with no evidence in rebuttal of the evidence of the
Appellant in its affidavit in support.
Reference is now made again to the statement of defence of the Respondents. It is
averred that Madam Foong Lum was the mother of Kok Tuck Seng, the occupier.
Apart from saying so, this defence of the Respondents does not condescend to
particulars in relation to the mother. The least the Respondents could have done
was to particularise her by providing information concerning her for example, the
detail from his birth certificate or other documents to connect him with Madam
Foong Lum as his mother. This is lacking. In the circumstances, this averment
about him being the son of Madam Foong Lum is nothing but a bare assertion
which ought not to have been allowed as establishing the fact as otherwise, many
other matters could have been put in the pleading upon a bare assertion so as to
attempt to defeat the averment in the statement of claim.
In the circumstances, I am satisfied that on the pleading of the Appellant, the case
is one which is virtually uncontested or uncontestable. The defence of the
Respondents is a sham one with the purpose of prolonging the trial thereby
defeating the rights of the Appellant to the said premises. There is no triable issues
in the matter. In the circumstances, the learned Sessions judge was wrong in
dismissing this claim of the Appellant by summary procedure under O. 26A of the
1980 SCR. The appeal is allowed with costs.

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