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IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR
IN THE STATE OF WILAYAH PERSEKUTUAN, MALAYSIA
[CIVIL SUIT NO: 24NCVC-778-05/2014]
BETWEEN
1. NEW YORK EMPIRE SDN BHD … PLAINTIFFS
(Company No: 590153-H)
2. TRIPLE-H AUTO PARTS SDN BHD
(Company No: 593687-K)
AND
1. MASWIN RIPIT
(NRIC: 880416-56-5282) … DEFENDANTS
2. NURUL AINIYAH RIPIT
(NRIC: 920608-14-6262)
3. SITI JAMAIAH MARKAWI
(NRIC: 860905-33-5332)
4. TUAH TILAM
(NRIC: 860706-56-5426)
5. HERMAN BUDIANA KESTIA
(NRIC: 931112-14-6561)
6. Orang-orang yang menduduki di atas
Hartanah yang dipegang di bawah

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Hakmilik GM 54, Lot No. 448, Mukim
Batu, Kepong Rly Line 8th
Mile,
Wilayah Persekutuan Kuala Lumpur
dan GM 57, Lot No. 449 Mukim Batu,
Segambut, Wilayah Persekutuan
Kuala Lumpur
GROUNDS OF JUDGMENT
1. This is an application by the sixth defendant to add 89 individuals as
defendants (hereinafter referred to as “the proposed defendants”) to this
action under Order 89 Rule 5 of the Rules of Court 2012 (“ROC”).
2. For the purposes of this application, the relevant background may be
summarised as follows. An originating summons was filed by the first and
second plaintiffs on 28 May 2014 for an order for possession under Order 89
ROC. The order for possession was sought in respect of 2 plots of land
held under Hakmilik GM 54, Lot No. Lot 448, Mukim Batu, Kepong Rly 8th
Mile,
Wilayah Persekutuan Kuala Lumpur (“Lot 448”) dan GM 57, Lot No. 449 Mukim
Batu, Segambut, Wilayah Persekutuan Kuala Lumpur (“Lot 449”) (“the said
land”). The first plaintiff, New York Empire Sdn Bhd, is the registered
proprietor of Lot 448, whilst the second plaintiff, Triple-H Auto Parts Sdn Bhd is
the registered proprietor of Lot 449.

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3. In support of the application under Order 89, the plaintiffs deposed in their
affidavit that the first to sixth defendants are squatters who have illegally
occupied the said land without their consent and/or license. It was further
deposed that despite reasonable efforts taken to ask the defendants to leave
the land, they have failed and refused to do so.
4. The Order 89 application came up for hearing on 25 August 2014. On that date,
counsel for the plaintiffs took objection to an affidavit filed by the proposed
defendants to oppose the application. The objection was on the basis that
the proposed defendants had no locus standi to oppose the originating
summons as they had failed to apply to be added as defendants to this
claim as required by Order 89 rule 5. The following passage in the judgment
of the Court of Appeal in Orang-orang yang menduduki rumah di bawah
hakmilik Geran No. 26977 Lot 4271 Johor Bahru v. Punca Klasik Sdn Bhd
& other appeals [1997] 3 MLJ 761 was cited in support of this objection:
“A proper application must be made to the court and not
merely by insertion of a name as a party. The failure of any
person to do so will not give him or his solicitors the right to
appear and be heard by the court.
...
Since there was no application under O. 89 r. 5 or O. 15 r. 6 or
r. 10, then there was no named defendant and as such no one
could be heard as a defendant.”

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5. Counsel for the proposed defendants, thereupon sought a short adjournment
to reply to the objection taken and the matter was postponed. On the
resumed hearing, counsel for the proposed defendants replied that it would
be unjust to deprive the proposed co-defendants the right to oppose the
originating summons. All their names were mentioned in the memorandum of
appearance and this was sufficient to give them locus. In any event, the
failure to file the application under Order 89 rule 5 was not a fatal omission
that warranted the proposed defendants being shut out. It was a irregularity
that was curable under Order 2 ROC.
6. In response, counsel for the plaintiffs reiterated her position that the principle
laid down in Punchak Klasik precluded the proposed defendants from
being heard until they are properly added as defendants. Having considered
the submissions of both parties, I ruled there merit in the plaintiffs objection.
Accordingly, the proposed defendants were given one day to make the
application under Order 89 rule 5. The present application was then filed
and the same was fixed for hearing on 8 September 2014.
7. On that date, the plaintiffs strongly opposed the application on the ground
that the affidavit in support did not demonstrate that the proposed defendants
are in occupation of the land and/or had an interest in the land. This was a
mandatory requirement that the proposed defendants must satisfy under rule 5
to Order 89 in order to be succeed in their application.

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8. For ease of reference, I set out Order 89 rule 5:
“Without prejudice to Order 15, rules 6 and 10, any person not
named as a defendant who is in occupation of the land and wishes
to be heard on the question whether an order for possession
should be made may apply at any stage of the proceedings to be
joined as a defendant.”
9. I accept the submission that for a person to be added as a defendant under
this rule, it is an essential requirement that he must show that he is in
occupation of the land. Having perused the affidavit in support, I am not
satisfied that proposed defendants have met the requirement of the rule 5.
There is only a bare averment that they are in occupation of the land. There is
no explanation as to why quit rent or TNB or SYABAS bills, were not
exhibited to corroborate their claims. In my opinion the bare allegations
made by the proposed defendants without more does not meet the
requirements of the rule. As the proposed defendants have been given
sufficient time and opportunities to defend their position, I do not think any
further adjournment to enable them to file a supplementary affidavit is
permissible.
10. In the result, I am compelled to dismiss the application with no order on
costs.

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Dated: 15 OCTOBER 2014
(S M KOMATHY SUPPIAH)
Judicial Commissioner
High Court of Malaya
Kuala Lumpur
Solicitors:
For the plaintiffs - Soo San San (Gabriel Daniel & Cyrus Tiu Foo Woei with him); M/s
Paul Ong & Associates
For the defendant 1st
to 6th
- Hisham Nen; M/s Hisham Nen & Co
For the 6th
defendant - Jayathi Balaguru & Prema Parameswaran; M/s Reventharan &
Associates