Azmi LP:

This is an appeal against the judgement of the High Court at Ipoh.

The appellants as landlords of premises described as No. 47 Jalan Anson, in Telok Anson, Perak, applied to the High Court for the recovery of the said premises from the respondent, their tenant, on the ground that the respondent had been in arrears of rent lawfully due for a period of more than 14 days. He did so by way of motion.

In his affidavit in support of the motion, the first appellant affirmed that he and his wife, the second appellant, let out the said premises to the respondent on a monthly rent of $112 payable in advance on the terms and conditions of tenancy printed on the reverse side of the receipts issued by them to the respondent.

By a notice to quit dated 25 September 1967 the appellant informed the respondent that they had terminated the tenancy in respect of the premises and the contractual tenancy of the respondent came to an end on 31 October 1967. The said notice was served on the respondent on 26 September 1967. They therefore prayed for an order in terms of the motion.

Nadesan s/o Velco Kowander, attorney of the respondent in his affidavit in reply first complained that the proceedings by way of motion for the recovery of premises were misconceived and on that ground alone asked that the motion be dismissed. He further alleged that it was the duty and practice for appellant No. 1 or his agent to call personally at the premises for rent. He also said that the only conditions of tenancy were those as to payment of rent but that the terms indorsed on the reverse of the receipt were the unilateral act of the appellants and not therefore binding on him. He denied that the respondent was in arrears of rent since neither the appellants nor their agent went to collect them at respondent's premises as was the usual practice. In any event the respondent had been on the premises for about 20 years as a tenant and he therefore prayed for the exercise of the discretion of the Court under s. 16(3) of the Control of Rent Act, 1966 in respondent's favour.

The learned Judge considered a preliminary objection of the respondent that the appellant's application by way of motion was irregular and not authorised by any rule of the Court or by any specific written law and therefore should be dismissed. It was urged before the learned Judge that under r. 1 O. 1 of the Rules of the Supreme Court, all proceedings of a civil nature, and appellants' application would be such a proceeding, must be by way of action and not by way of motion. Rule 1 of O. 1 provides that save as otherwise provided by the rules or by any written law all proceedings of a civil nature in the High Court shall be by way of action. There is no doubt that under the rules proceedings for the recovery of possession of land must be by way of a writ of summons in an action. See O. 12, rr. 25, 26, 27 and 28 and also O. 13 r. 8 where there are references to "action for recovery of land", "in a writ of summons for recovery of land" and so on. On the other hand, it was argued on behalf of the appellants that s. 16(1) of the Control of Rent Act, 1966, specially provides that recovery of premises under the Act may be made by way of "application." That sub-section reads as follows:

16.(1) Except for an application made under s. 18 for the recovery of possession of any controlled premises or any part thereof for the purpose of effecting or causing to be effected thereon any development, all applications for the recovery of possession of such premises or any part thereof shall be made to a Court; and no order or judgment for the recovery or possession of any controlled premises or any part thereof comprised in a tenancy shall be made or given by the Court except in any of the following cases -

"By reason of the words "All applications for recovery of possession" the section has now provided a new procedure namely by way of applications and therefore under O. 52 r. 1, by way of mot