ECO HORIZON SDN BHD (NO SYARIKAT : 1082988-W) 1. ARULMIGU KUIL SRI MAHA MUTHU MARIAMMAN, BATU KAWAN, SEBERANG PERAI SELATAN 2. MATHIYALAGAN A/L VEERIAH [NO K/P: 560122-07-5127] (disaman dalam kapasiti persendirian dan sebagai Pengerusi Pert

DALAM MAHKAMAH TINGGI MALAYA DI PULAU PINANG GUAMAN SIVIL NO. : PA-22NCVC-89-04/2019 ANTARA ECO HORIZON SDN BHD ... PLAINTIF (NO SYARIKAT : 1082988-W) DAN 1. ARULMIGU KUIL SRI MAHA MUTHU MARIAMMAN, BATU KAWAN, SEBERANG PERAI SELATAN 2. MATHIYALAGAN A/L VEERIAH [NO K/P: 560122-07-5127] (disaman dalam kapasiti persendirian dan sebagai Pengerusi Pertubuhan Penganut Dewi Sri Muthu Mariamman, Batu Kawan, Seberang Perai Selatan) 3. G.MANOGARAN A/L GOVINDARAJOO [NO K/P: 590921-07-5879) (disaman dalam kapasiti persendirian dan sebagai Timbalan Pengerusi Pertubuhan Penganut Dewi Sri Muthu Mariamman, Batu Kawan, Seberang Perai Selatan) 4. RAMALINGAM A/L SURAN [NO K/P:510831-07-5127) (disaman dalam kapasiti persendirian dan sebagai Setiausaha Pengerusi Pertubuhan Penganut Dewi Sri Muthu Mariamman, Batu Kawan, Seberang Perai Selatan) ... DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT Application [1] This is the 1* to 4" Defendants’ application to strike out the Plaintiff's Statement of Claim pursuant to Order 18 Rule 19(1) (a) and/or (b),(c) & (d) Rules of Court 2012: “19. Striking out pleadings and endorsements (O. 18 r. 19) (1) 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- (a) it discloses no reasonable cause of action or defence, as the case may be; (b) it is scandalous, frivolous or vexatious; (c) it may prejudice, embarrass or delay the fair trial of the action; or (d) it is otherwise an abuse of the process of the Court, 4 [2] The principles for applying Order 18 Rule 19 Rules of Court 2012 are laid down by the Supreme Court in Bandar Builder Sdn Bhd v. United Malayan Banking Corporation Bhd [1993] 3 MLJ 36: “The principles upon which the court acts in exercising its power under any of the four limbs of O 18 r 19(1) of the RHC are well settled. It is only in plain and obvious cases that recourse should be had to the summary process under this rule (per Lindley MR in Hubbuck & Sons Ltd v Wilkinson, Heywood & Clark Ltd 7, and this summary procedure can only be [3] [4] [5] [6] adopted when it can be clearly seen that a claim or answer Is on the face of it ‘obviously unsustainable’ (see AG of Duchy of Lancaster v L & NW Rly Co 8).” Decision In the course of submissions, the Plaintiff sought to amend the description of the 1*' Defendant. | allowed the Plaintiff to file an application to amend the Writ and Statement of Claim — the amendment only touched on the description of the 1* Defendant — as “a cause or matter shall not be defeated by reason of the misjoinder or non-joinder of any party’ (Order 15 Rule 6(1)). At the adjourned hearing, | heard both the striking out and amendment applications together. | allowed the Plaintiff's application to amend the description of the 1 Defendant and dismissed the 1° to 4" Defendants’ application to strike out the statement of claim. These are the grounds for dismissing the 1* to 4" Defendants application. Backqround The background facts are as follows. The Plaintiff is the present registered owner of a piece of land held under HS(D) 50536. PT 5965, Mukim 13, Daerah Seberang Perai Selatan, Pulau Pinang (“Land”). This Land was originally part of a larger piece of land that was compulsorily acquired by the State Authority between 1990-1992. It was then sub-divided and transacted a couple of times over — it was first transferred to Penaga Persona Sdn Bhd (“Penaga”) in 2014 and then to the Plaintiff in 2016. The Plaintiff has been the registered owner of the land since 2017. [7] On part of the Land sits a temple known as “Arulmigu Kuil Sri Maha Muthu Mariaman, Batu Kawan Seberang Perai Selatan” (“Temple”). It has been since there ever since the Plaintiff acquired the Land. Management of the Temple [8] The Temple is managed, purportedly, by a registered society under the Societies Act 1966 known as “Pertubuhan Penganut Dewi Sri Muthu Mariamman, Batu Kawan, Seberang Perai Selatan” (“Society”). [9] | say ‘purportedly’ because the Societies’ own constitution, as it stands, prohibits the Society from administrating a house of worship i.e. the Temple. Although this is an internal matter for the Society, it nevertheless puts the Plaintiff on notice of whom they ought to sue — more shall be said of this later. Earlier Suit — Originating Summons for Summary Possession of Land [10] In 2017 while Penaga was still the registered owner of the Land, they initiated legal proceeding by way of Originating Summons for summary possession of the Land pursuant to Order 89 Rules of Court 2012. The Plaintiff, upon being registered as the owner later that year, substituted Penaga as the Plaintiff and continued with the Originating Summons proceedings. [11] The Plaintiff succeeded and obtained judgment before the High Court. There were attempts to execute the judgment 2018, but the execution proceedings were frustrated by the Society and the 2nd _ 4"" Defendants and not followed through to completion. [12] In the meantime, the High Court judgment was overturned on appeal by the Court of Appeal on the grounds that the matter should not have been disposed of summarily under Order 89 Rules of Court 2012, but should instead proceed by way of a Writ action. Instant Suit — Writ Action [13] Hence, the Plaintiff commenced the instant Writ action in 2019. The Plaintiffs has pleaded 2 causes of action against the defendants: (a) the tort of trespass and (b) the tort of unlawful interference with trade and business. Defendants [14] In this cause, the Plaintiff sued: (1)The Society through their office bearers, namely the ar Defendant as the Chairman, the 3 Defendant as the Deputy Chairman and the 4" Defendant as the Secretary of the Society; (2)The 2" Defendant, the 3 Defendant and 4" Defendant in their personal capacities; (3) The Temple itself, named as the 1°" Defendant. Issue with the Societies’ Constitution [15] The reason for including the Temple as the 1*' Defendant was explained by the Defendant’s counsel. They say that, from the plain reading the Societies’ constitution — the Society is prohibited was administrating a house of worship i.e. the Temple — there were questions over whether the Society were competent to administer the affairs of the Temple and/or had control over the Temple. Alternate Defendant [16] It was thus prudent to add the Temple as a separate and additional Defendant so that, in the event that the Society claims or is found not to be in control of the Temple, the Plaintiff would still be able to proceed against the Temple itself. Issue with the Legal Entity of the 1°' Defendant [17] There were, however, questions over whether the Temple was a legal entity with the capacity to sue and be sued. [18] At the outset, the Plaintiff's counsel, in so thinking, was influenced by the decision in Damansara Jaya Sdn Bhd v. Penghuni-Penghuni Kuil Muneswaran Alayam atau Muniandy Maha Kali Alayam [1994] 1 CLJ 164, which held that: “Under customary Hindu law it is well established that if a landowner sets apart land which he owns for the establishment of a temple which the public use for worship over a long course of time, a trust of that land will be deemed to have been expressly or impliedly created. The temple deity is deemed to be a juridical entity. The temple guardian is also deemed to be the trustee of the temple property and has a legal right to sue and be sued in that capacity. To call such persons committee members of an association could be a misnomer. Members of the public are also regarded as having a legal right of access to the temple to worship there if they are of the faith.” [19] However, at the adjourned hearing, the Plaintiff's counsel informed the Court he had discovered a recent decision that took the contrary view. In Ramachandran a/l Meyappan v. Chellapan _a/l K Kalimuthu [2019] 12 MLJ 488 (“Ramachandran Case”), the High Court held as follows: [29] | am constrained to reject any reliance on Hindu customs at the expense of the NLC. The definition of ‘law’ in art 160(2) of the Constitution states as follows: Jaw’ includes written law, the common law in so far as it is in operation in the Federation or any part thereof, and any custom or usage having the force of law in the Federation or any part thereof; (Emphasis added.) According to the above definition of ‘law’, a custom or usage can only be enforced if it can be shown that the custom or usage has the ‘force of law’. There is no proof that Hindu custom has the force of law in this case. In any event, any custom or usage cannot override the codified provisions of NLC regarding the rights of a registered proprietor of land which are guaranteed under art 13(1) of the Constitution. Amendment to Description of the 1°! Defendant [20] Persuaded that the Ramachandran Case was current and better represented the law — that Hindu Customary law did not apply — the Plaintiff's counsel then moved the Court to permit him to amend the description of the 1° Defendant to read as follows (addition by amendment underlined): “Occupiers of Arulmigu Kuil Sri Maha Muthu Mariaman, Batu Kawan Seberang Perai Selatan, which forms part of HS(D) 50536. PT 5965, Mukim 13, Daerah Seberang Perai_ Selatan, Pulau Pinang” [21] Such a description of the 1°* Defendant is recognised in our laws, especially where the occupiers cannot be identified individually or with certainty. (Bukit Lenang Develoomemt Sdn Bhd v Penduduk- Penduduk yang menduduki atas Tanah HS(D) 151079 — HS(D) 151601, Mukim Plentong, Daerah Johor Bahru [1999] 6 MLJ 25) [22] The Plaintiff, with the Court's leave, filed a formal application to amend the Writ and Statement of Claim accordingly. As mentioned earlier, | allowed the amendment. There is no appeal against the order allowing the amendment. Grounds for Striking Out Application [23] This is the Defendant’s application to strike out the Statement of Claim on 3 grounds: (1) The Plaintiff has sued the wrong party — the Society itself should have been named as a party and not the Temple; (2) The action is res judicata as it had been decided in OS PA- 24NCVC-523-06/2017; (3) There is no cause of action to claim for damages against 2"°-4"" Defendants for the tort of interference because: (a)2"-4" Defendants did not obstruct the Bailiff but parties had consented not to intrude until the matter had been decided by the court of appeal; and (b)Any damage would have been self-induced because there was an agreement to give the Defendants land to relocate the temple. Parties [24] On the first point, | find that the Plaintiff have sued the right parties. The proper person to sue with regard to a Society are the office bearers of the Society in their capacity as office bearers. There is no need to name the Society separately. [25] Section 9(c) Societies Act 1966 provides as follows: “ (c)a society may sue or be sued in the name of such one of its members as shall be declared to the Registrar and registered by him as the public officer of the society for that purpose, and, if no such person is registered, it shall be competent for any person having a claim or demand against the society to sue the society in the name of any office- bearer of the society; 4} [26] As for suing the Temple, this has been amended to the following: “Occupiers of Arulmigu Kuil Sri Maha Muthu Mariaman, Batu Kawan Seberang Perai Selatan, which forms _part_of HS(D) 50536. PT 5965, Mukim_13, Daerah Seberang Perai Selatan, Pulau Pinang” and, as explained above, there is nothing improper about it; it was in fact the proper thing to do. Res Judicata [27] On the second point, the earlier Originating Summons was an application under Order 89 Rules of Court 2012, which is a summary application. All it means is that the this Writ ought to be filed and proceed to trial and not be decided summarily. Hence, the Res Judicata argument has no application here. [28] In Hotel Ambassador (M) Sdn Bhd v Seapower (M) Sdn Bhd [1991] 1 MLJ 404, the Supreme Court held as follows: “On 16 February 1990, the respondents took out an Originating Summons No 113/90 claiming possession of the said property under O 89 of the Rules of the High Court 1980. After hearing arguments, Wan Adnan J dismissed the application. Subsequently, the appeal against that order was abandoned. On 29 May 1990, the appellants took out a writ against the respondents in Civil Suit No 22-202-90. In the statement of claim the following reliefs were sought: 10 (a) a declaration that they were the lawful tenants of the said property; (b) an order to restrain the respondents from interfering with or disturbing their lawful and actual possession and use of the disputed property; and (c) damages and costs or such other further order or relief as may be just or necessary. On the question of jurisdiction the following issues were raised. First, it is the appellants' contention that the claim for vacant possession before Edgar Joseph Jr J was barred by res judicata or issue estoppel because of the earlier decision of Wan Adnan J and the subsequent withdrawal of the appeal against that decision.... In our view the earlier decision of Wan Adnan J must be understood in its proper context. What was before the learned judge then was an application for possession under O 89 of the Rules of the High Court 1980. It was a summary procedure. Because of the point raised by the appellants purporting to be tenants there and that they were in lawful occupation of the said property, Wan Adnan J declined to proceed under O 89 and dismissed the application. It must be understood that he did not finally decide the status of the appellants. What_he decided was simply that on the facts as shown to him a summarv procedure was not proper ... The observations made by Wan Adnan J in his grounds of judgment that the tenants were ‘tenants holding over' were 11 mere observations and made obiter and not a finding arrived at on the merits. In fact in his careful judgment, Edgar Joseph Jr J considered the ratio decidendi of the judgment of Wan Adnan J and we agree that the latter's judgment was confined to the facts before him and limited to the proposition that since the occupants claimed they were tenants holding over, a summary procedure under O 89 was not proper. Therefore, the question of res judicata does not really arise.” Issues for Trial [29] On the third point, it is patently clear that cases of trespass and interference with trade and business where the facts are in dispute, as is the case here, has no place for summary disposal by way of striking out. This case is no exception. Decision [30] | dismissed the Defendant application for the above reasons. Dated 8" October 2020 WONG HOK CHONG Judicial Commissioner High Court of Malaya, Penang 12 PEGUAM Peguamcara Plaintif: Tetuan Izral Partnership Peguambela & Peguamcara 2nd Floor, Wisma Hamzah KH, 50100 KUALA LUMPUR Peguamcara Defendan-Defendan: Tetuan N.Ahilan & Associates Peguambela & Peguamcara No. 45, Bishop Street, 10200 PULAU PINANG 13