- “被告进入和封锁有关原告所居住的场所是错误的行为，并且是违法的。尽管在原告与被告之间订立的租赁合约，允许被告重新获得产业拥有权，但该协议不能超越1950年特定救济法令第7(2)条文。”（Nur lslam Wordwide Industries Sdn Bhd v Yee Kok Sum  7 CLJ 495 at p 497）
- 法庭最终表示，厂主显然违反了1950年特定救济法第7（2）条文。 在这种情况下，法庭特此按照租客的要求发出庭令。
- The plaintiff has, simultaneously with the filing of the writ of summons and statement of claim against the defendant, filed a summons in chambers.
- The plaintiff is in the business of producing and manufacturing firearms and ammunition. The defendant is a joint venture company set-up and incorporated in Malaysia pursuant to a joint-venture agreement between National Aerospace & Defence Industries Bhd (‘NADI’), a local company, and Steyr Mannlicher Holding GMBH (‘Steyr’), a company incorporated in Austria. NADI is the majority shareholder of the plaintiff.
- By this summons in chambers, the plaintiff is praying for the following orders:
(a) that the defendant, whether through its employees, servants, agents or otherwise howsoever, be restrained from locking the one-storey factory (‘the property’) situated at Lot 14643 PT1952 (‘the land’) and denying access to the plaintiff whether through its employees, servants, agents or otherwise howsoever;
(b) that the defendant, whether through its employees, servants, agents or otherwise howsoever, allow the plaintiff and its employees, servants, agents or otherwise howsoever, access to and peaceful enjoyment of the land and the property.
- The grounds for the plaintiff’s application herein are that the defendant had wrongfully and illegally evicted and barred the plaintiff from the property.
- by a tenancy agreement dated 9 December 2004 entered between the defendant and the plaintiff, the defendant agreed to rent the property to the plaintiff for a period of seven months commencing on 1 August 2004 and ending on 28 February 2005 at a rental rate of RM200,000 per month.
- The plaintiff is in default of payment of the rent for the months of January and February 2005 but has remained in possession and occupation of the property where it produces and manufactures ‘AUG Rifles’.
- The plaintiff continued to be in possession of the property even after the expiry date of the tenancy.
- On 6 May 2005, the defendant locked up the property and thereby denying plaintiff access to the property and effectively evicted the plaintiff from the property.
- The defendant avers that the plaintiff has actually surrendered possession of the property to the defendant on 28 February 2005, ie the date the tenancy period expires. However, I find that such averment is not supported by the sequence of events that follows, especially the issuance of a letter dated 3 May 2005 by the defendant and plaintiff’s letter to the defendant dated 4 May 2005 which clearly indicate that the plaintiff has not given up possession of the property.
- The only relevant issue that needs determination is whether the action of the defendant in locking up the property and denying access to the plaintiff is lawful and/or done according to the law.
- Plaintiff contended that the action of the defendant is in contravention of s 7 of the Specific Relief Act 1950 (‘the Act’). Section 7 of the Act provides as follows:
‘7. Recovery of specific Immovable property.
(1) Subject to subsection (2), a person entitled to possession of specific immovable property may recover it in the manner prescribed by law relating to civil procedure.
(2) Where a specific immovable property has been let under a tenancy, and that tenancy is determined or has come to an end, but the occupier continues to remain in occupation of the property or part thereof, the person entitled to the possession of the property shall not enforce his right to recover it against the occupier otherwise than by proceedings in court.
(3) In subsection (2) ‘occupier’ means any person lawfully in occupation of the property or part thereof at the termination of the tenancy.’
- Section 7(2) of Act clearly prohibits the defendant from taking over the possession of the said property from the plaintiff without first obtaining a court order.
- In a case with almost similar facts to our present case, Nur lslam Wordwide Industries Sdn Bhd v Yee Kok Sum  7 CLJ 495 at p 497: “Saya mendapati tindakan pihak defendan memasuki dan menutup premis yang diduduki oleh plaintif pada masa yang berkenaan adalah salah, tidak sah dan tidak dibuat mengikut kuasa undang-undang. Sungguhpun terdapat peruntukan kl. 4(a) perjanjian sewaan yang dimasukki diaritara plaintif dengan defendan yang membolehkan defendan mendapatkan pemilikan semula premis tersebut, saya berpendapat ianya tidak boleh mengatasi peruntukan undang-undang dibawah s 7(2) Specific Relief Act 1950 dan Akta Distress 1951 yang menghendaki tindakan Mahkamah diambil atau perintah Mahkamah diperolehi sebelum pihak defendan mengambil semula milikannya.”
- In Dr Harjit Singh v Suhaimi bin Samat & Anor  2 AMR 1988, the plaintiff in that case commenced an action against the defendants contending that the conduct of the defendants in locking him out of the premises amounted to a breach in tort in contravention of s 7 of the Act. The plaintiff in that case then subsequently filed a summons in chambers for an order of injunction against the defendants. Justice Haidar opined: “… it would be wrong on the part of the defendants to lock out the plaintiff from the clinic and thereby taking the law into their own hands. Such an act amounted to a tort. Section 7(2) of the Specific Relief Act 1950 clearly showed the intention of Parliament that possession of premises may not be obtained except by proceedings in the court. If the court were to refuse the injunction, leaving the plaintiff to a remedy for tort, it would be allowing just the mischief which the section was designed to prevent. As Stamp J in Warder’s case  1 All ER 1112: If the matter had come before the court on a threat to lock out the first plaintiff, I entertain no doubt that an injunction would have been granted, And to quote Lord Denning MR in the Luganda case, ‘They should not be in a better position by wrongfully locking him out’.
- In my judgment, the requirement for the defendant in our present case to first and foremost obtain a court order before it can recover possession of the properly from the plaintiff is a mandatory one. The used of the word ‘shall’ in s 7(2) of the Act imposes a pre-condition of obtaining a court order before the defendant can recover possession of the property. The plaintiff was a tenant of the defendant and therefore he cannot be said to be a trespasser nor a licensee as argued by the defendant. It is also in evidence that the plaintiff has been in occupation of the property since the month of August 2002 to carry out its business.
- The plaintiff in not yielding up possession of the property after the expiry of the tenancy period is therefore a tenant holding-over and there are existing remedies in law available to the defendant against such tenant. Furthermore, s 7(2) of the Act is applicable in cases where ‘the property has been let under a tenancy, and that tenancy is determined or has come to an end’. That is exactly what has happened in this case.
- In my view, the defendant has resorted to the equitable remedy of self-help to recover the possession of the property from the plaintiff. It is now settled law that with the existence of s 7 (2) of the Act in its current form, the equitable remedy of self-help has been relegated into oblivion. The law does not allow the defendant to take the law into his own hand and forcibly evict the plaintiff from the property.
- As Abdul Malik Ishak J, per curiam, in Er Eng Hong & Anor v New Kim Eng Dan Tiap-Tiap Pemegang Yang Menduduki Atas Sebahagian Tanah Yang Dikenali Sebagai HS (M) 2162 PTD 4403 Mukim Benut, Daerah Pontian  1 CLJ 289 [*468] : … The amended s 7(2) of the Specific Relief Act 1950 would relegate the remedy of self help into oblivion as the owner of the property can only seek to enforce his right to recover his property from the occupier by way of a court action.”
- The plaintiff also referred to s 8(1) of the Act to argue that the plaintiff is entitled to obtain repossession of the building and the land as the defendant has failed to obtain a court’s order for recovery of vacant possession. Section 8(1):
- Suit by person dispossessed of immovable property.
(1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in the suit.
- In Pollock & Mulla on Indian Contract And Specific Relief Acts, (11th Ed) Vol II, the authors wrote: A suit under s 6 (which is substantially in pari materia with our s 8 of the Act) is maintainable between landlord and tenants where the question of title is not raised because the question of title is irrelevant and the defendant cannot raise it. Though a tenant may hold over after the expiry of the period of tenancy, his possession is still juridical, and he is entitled to sue his landlord for possession under this section, if forcibly dispossessed by him.
- I found that the defendant has clearly acted in contravention of s 7(2) of the Act. In the circumstances, I hereby made order in terms as prayed by the plaintiff in this summons in chambers (encl 3).
Source: SME Aerospace Sdn Bhd v Steyr Mannlicher (M) Sdn Bhd  3 MLJ 462. HC. Rosnaini Saub JC
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