Haji Mohd.Azmi bin Dato' Haji Kamaruddin SCJ:

This is an appeal by the monthly tenants of premises nos 1, 3, 5 and 7, Carnarvon Lane, Pulau Pinang, against the order of vacant possession and damages given by Mr T Selventhiranathan, JC, on 14 June 1993. The four premises are situated on two separate lots Nos 523 and 524, (G 38460 and G. 38467), Pecahan Bandar 22, Daerah Timur Laut, Pulau Pinang. The plaintiff (respondent before us) is a successful bidder of the properties at a public auction conducted under the National Land Code on 6 January 1992, pursuant to a foreclosure order obtained vide Kuala Lumpur High Court Originating Summons No. F 1224 of 1985. A certificate of sale in Form 16F of the National Land Code was issued to him on 25 March 1992, and on 28 July 1992 through his solicitors, he terminated the monthly tenancies by separate notices to quit on all the four defendants, and demanded delivery of vacant possession by 31 August 1992. When the defendants failed to comply with the said notices, the plaintiff filed an application by originating summons for vacant possession which was granted by the learned Judicial Commissioner. Hence the present appeal.

In this appeal, both parties agree that the premises in question are pre-war double storey terrace houses, and are controlled premises under the Control of Rent Act 1966 (hereinafter referred to as "the Act"). This fact was clearly within the knowledge of the plaintiff at all relevant times, as it was so stated in the proclamation of sale of the public auction. It has never been seriously challenged that the plaintiff knew at the time of the auction sale, that he was purchasing rent controlled premises, and as such it is contended by the appellants that as monthly tenants of the previous landlords of the controlled premises they enjoy the protection under s 16 of the Act notwithstanding the termination of the tenancies by the notices to quit.

The main argument raised by the appellants against the order of vacant possession in the Court below and repeated before us is two-fold. The first is procedural. It is contended that the proceedings by way of Originating Summons without reference to O 89 of RHC 1980 , are wrong in law. As the premises are controlled premises under the Act , the appellants argue forcefully that the action ought to have been commenced by writ. The second issue is one of law which concerns the effect of non-compliance with s 267(2) of the National Land Code 1965 (hereinafter referred to as "NLC") on the protection against eviction conferred by the Act , on tenants of controlled premises. The appellants contend that failure to endorse the monthly tenancies under the NLC is not fatal under the Act, and as such they are not trespassers but continue to enjoy the protection of the Act .

On the first issue it must be emphasised at this stage that despite the protestation of counsel for the respondent, the learned Judicial Commissioner has treated the respondent's application as one under O 89 RHC 1980 , so as to enable the Court to remedy the procedural defect and grant the prayer for vacant possession summarily on affidavit evidence. At p 32 of his grounds of judgment, the learned Judicial Commissioner made the following findings:

For the reasons stated above, I found that the defendants were trespassers as no relationship of landlord and tenant had been created between the plaintiff and them. The defendants were persons who remained in occupation of the premises without the licence or consent of the plaintiff and from 1 September 1992 (the day following the date of which they were required to quit and deliver vacant possession of the premises by the notice dated 28 July 1992), they became trespassers against whom the plaintiff was entitled to apply by way of summary proceedings for vacant possession under O 89 .

Although it may be successfully argued that the Court is entitled to treat the plaintiff's originating summons as one under O 89 RHC , notwiths