MOHD SHUKRI BIN OMAR v NAZ KEL SDN. BHD.

Case Significance

Confirms that a landlord's acceptance of rent during negotiations for a fresh tenancy is not necessarily a waiver of the right to terminate, and that a possession claim raising no serious factual dispute may properly proceed by originating summons under the Specific Relief Act 1950.

This High Court decision at Kota Bharu concerns an originating summons (saman pemula) by a landlord seeking a declaration that a tenancy agreement dated 15 October 2019 over commercial premises at Pasir Tumboh, Kelantan had been validly terminated, together with an order that the tenant company deliver up vacant possession. The application was brought under sections 7 and 8 of the Akta Relief Spesifik 1950 (Specific Relief Act 1950). After the original three-year term expired, the parties negotiated an extension on new terms, including an increased monthly rent, but no fresh agreement was concluded because the tenant wanted the new lease to be entered into in the name of a third company rather than in its own name. The tenant raised two principal objections. First, it argued that the landlord's acceptance of rent for March and April 2024 amounted to a penepian (waiver) of any right to terminate the tenancy. Second, it contended that the dispute was unsuitable for determination by originating summons and should be converted to a writ action. The Court rejected both contentions. It held that acceptance of the March and April 2024 rent was not a waiver, because those payments were consistent with what the parties had agreed during the period of negotiation towards a new tenancy, rather than an affirmation of the existing lease. On the procedural point, it found no complex or seriously disputed questions of fact — the controversy turned on the tenancy, its termination, and the request to contract with a third party — so the originating summons procedure was appropriate. Satisfied on the balance of probabilities that the landlord had proved the claim, the Court allowed the application, declared the tenancy under the 15 October 2019 agreement at an end, and ordered the tenant to deliver vacant possession within 30 days, with costs of RM5,000.00 subject to allocatur.