Chong Siew Fai J:

This is an application by the 2nd and the 3rd defendants to set aside the "judgment in default of defence" dated 7 October 1985 obtained by the plaintiffs against the 1st, 2nd and 3rd defendants. Under the judgment, the 3 defendants were ordered to give up to the plaintiffs certain portions of the shophouse as therein defined (these portions are hereinafter referred to as `the premises'), to pay the plaintiffs mesne profits at RM9,000 per month from 1 June 1985 till possession is delivered up and costs RM255.

The basis of the plaintiffs' claims as disclosed in the statement of claim is that they are the registered proprietors of the shophouse, that the 1st defendant was their monthly tenant respecting the premises, that the 2nd defendant-firm of which the 3rd defendant is the sole proprietor is the sub-tenant of the 1st defendant, that the tenancy of the 1st defendant having been duly terminated on 30 June 1985 by a notice to quit dated 24 May 1985 and the defendants wrongfully remaining in occupation of the premises, the plaintiffs are entitled to the reliefs as claimed in the action. The plaintiffs did not aver or show what the monthly rental for the tenancy was. Paragraph 7 of their statement of claim, however, alleges: "The monthly rental of the premises is RM4,500". On the other hand, there is more specific assertion by the defendants that the rental was RM206 per month. (See para. 5 of the proposed defence and counterclaim annexed to Stephen Chung's affidavit made on 9 October 1985). The plaintiffs, however, claimed and had accordingly mesne profits at RM9,000 per month entered in the default judgment.

For the 2nd and the 3rd defendants it was firstly submitted that O. 77 r. 9 did not enable the plaintiffs to join both the 2nd defendant firm and its proprietor (3rd defendant) as parties in this action, that in so doing it was oppressive, unfair, embarrassing and prejudicial to the defence and that the 2nd defendant firm not being a legal persona was not capable of holding any tenancy and there was no basis in law to name it as a party to the proceedings. Madan Lal & Anor. v. Ho Siew Bee [1983] 1 MLJ 105 was cited in support.

Order 77 r. 9 makes a person carrying on business within the jurisdiction in a name or style other than his own name liable to be sued in that name or style as if it were the name of a firm. It is a permissive provision. It does not restrict the person to be sued only in that name or style. In the instant case it is not disputed that the 3rd defendant Tiong Ai King was and is the sole proprietor of the 2nd defendant-firm. It has not been shown in what way it was oppressive, unfair, embarrassing and prejudicial to Tiong on account of his being sued in the manner in this action such that the default judgment ought on that account to be set aside. The claim of the plaintiffs against the 2nd and the 3rd defendants is that they are trespassers. Even accepting that the claim is one of tenancy and that the 2nd defendant-firm cannot hold a tenancy, there is nothing to prevent the judgment from being enforced against the 3rd defendant who, as admitted, was and is the sole-proprietor of the 2nd defendant-firm. In Madan Lal & Anor. v. Ho Siew Bee [1983] 1 MLJ 105, the situation was different. There the issue was whether the name of a partnership firm is or can be the tenant. More importantly, there the partners of the partnership-firm were not made parties to the proceedings before the Rent Tribunal.

I find no merits in this ground.

Another contention is that the 1st named plaintiff Wee Tiang Kheng not being a registered co-proprietor of the shophouse as alleged in the statement of claim, has no reasonable cause of action against the 2nd and the 3rd defendants and the judgment is therefore bad.

It is not disputed that all material times the 1st- named plaintiff Wee Tiang Kheng was not and is not a registered co-proprietor of the shophouse. He was and is a donee of the power of attorne