James Foong JCA:

Introduction

In this appeal the respondent, who was the landlord of a double storey building known as Lot 741, Jalan Sultan Ismail, Kuala Lumpur (the said premises), had rented to the appellant the said premises for a sum of RM5,750 per month for a period of three years commencing from 1 October 1992. This tenancy is evidenced by a written agreement dated 26 April 1993. According to the respondent, the appellant had breached a term of this tenancy agreement by failing to secure approval from the relevant authorities to renovate the said premises into a restaurant and to operate as such. This warranted the respondent to terminate the tenancy and to reclaim possession of the said premises. To activate this, the respondent, through its solicitors, on 10 May 1994, gave notice in writing to the appellant that the tenancy agreement would be terminated with effect from that date thereof and that vacant possession of the said premises be surrendered to the respondent forthwith. This letter added:

unless you quit and deliver vacant possession of the abovecaptioned premises to our client on or before the 30th June, 1994, you shall be liable to pay double rental and/or mesne profits at RM11,500.00 per month calculated from 1st July, 1994 till date of actual delivery of vacant possession ...

When the appellant failed to vacate the said premises, the respondent commenced this action in the Sessions Court on 24 November 1994. The prayers listed in the statement of claim are:

(a) an order that the appellant and all persons claiming through and/or under them vacate and deliver vacant possession of the said premises to the respondent;

(b) general damages;

(c) interest thereon at the rate of 8% per annum from the date hereof to the date of full payment;

(d) double rental at the rate of RM11,500 a month from 1 July 1994 until date of actual delivery;

(e) an indemnity and/or contribution to the extent of 100% pursuant to claims by the authorities for the demolition of unlawful structures constructed on the said premises and the use of the said premises as a restaurant;

(f) interest thereon at the rate of 8% per annum from 1 July 1994 to the date of full settlement on paragraph (d) herein and;

(g) costs of this action.

Subsequent to the filing of this action, the respondent took out an application for summary judgment under O. 26A of the Subordinate Courts Rules 1980 for vacant possession of the said premises and for double rental of RM11,500 per month from 1 July 1994 till date of vacant possession. The learned Sessions Court Judge allowed this application.

Dissatisfied, the appellant appealed to the High Court. The High Court dismissed the appeal; thus this appeal before us.

Appellant's Contentions

Mr. Teh, counsel for the appellant, informed this court that he is limiting his appeal to only two grounds to support his contention that the learned High Court Judge has erred in upholding the Sessions Court's ruling against the appellant. These are:

1. The respondent did not comply with a pre-condition stipulated in cl. 7(b) of the tenancy agreement which says that the tenancy agreement shall only be terminated in the event of a breach by the tenant with a re-entry onto the said premises by the landlord. Instead, the respondent relied on its solicitors' letter of 10 May 1994 to effect the termination.

2. The respondent has waived its rights to terminate the tenancy agreement when the respondent accepted rental payment from the appellant as late as 12 November 1994, the date after the purported termination.

Subsequent Events

Before we proceed to analyze the contentions of the appellant against the contrary arguments of the respondent's counsel, it is pertinent to note the following events had taken place subsequent or consequential to the decisions of the Sessions Court and the High Court:

1. The appellant has vacated the said premises on 10 July 1997.

2. The appellant has paid to the respondent a sum of RM417