Shaik Daud Ismail JCA:

The appeal is from the decision of the Shah Alam High Court which had entered judgment in favour of the respondent for vacant possession of premises No. 5, Jalan Gasing, Petaling Jaya and arrears of rental at RM1200 per month from 1 August 1991, until handing over of vacant possession. It is not in dispute that the respondent is the registered owner of the said property and had rented it out to the appellant.

At the outset of the appeal, Mr. Gurbachan Singh learned counsel for the respondent informed the court that he has a preliminary objection to raise. He conceded, however, that he failed to give notice of this to learned counsel for the appellant. Since there were no objections, we allowed the preliminary objection to be raised.

Learned counsel for the respondent questioned the competency of the appeal as no leave to appeal had been obtained by the appellant. He contends that although this matter originally involves the question of tenancy and there was no value attached to it, the High Court in its judgment made an order for arrears of rent, thereby attaching a value to the matter, and since no leave had been obtained, the appeal is incompetent.

Learned counsel for the appellant argued that since the respondent's claim was only for vacant possession, it must be taken that it is filed under O. 89 and as such no leave to appeal is required. He further contends that the claim has no value attached to it.

We are unable to agree with the contention that we ought to treat this claim as if it was made under O. 89. When an application is not clear or makes no mention under what order of the Rules of the High Court, it is made, then we should look at the substance of the application as was held in Cheow Chew Khoon (t/a Cathay Hotel) v. Abdul Johari bin Abdul Rahman [1995] 4 CLJ 127; [1995] 1 MLJ 457. In that case the originating summons did not specify the order under which it was made but in the present case the originating summons clearly mentioned that it was made under O. 28 of the Rules of the High Court 1980. Therefore we cannot treat it as if it was made under some other order.

We are of the view that since the High Court had attached a value to the matter appealed against, by making an order for arrears of rent, leave to appeal is required unless it comes within any of the exceptions in s. 68(1) of the Courts of Judicature Act 1964, and Practice Direction No. 2 of 1996. Since no leave had been obtained the appeal is not competent and we ordered it to be struck off with costs.