JUDGMENT

Mohd Hishamudin Yunus JCA:

[1] This appeal is against the decision of the High Court Judge of Kuala Lumpur (Civil Division) on a point of law raised by the respondent/defendant by way of an O 14A application ().

[2] The learned High Court Judge had, on the point of law raised, ruled in favour of the respondent/defendant and, accordingly, had dismissed the appellant's/plaintiff's claim against the defendant.

[3] The issue of law posed to the learned High Court Judge in the O 14A application is whether the landlord/defendant (the respondent in this appeal), having obtained an Order from the Sessions Court for the payment of rentals and vacant possession against the tenant/plaintiff (the appellant in this appeal), the landlord/defendant, may, thereafter, enforce the Order by entry into the tenanted premises (the house) without a writ of possession issued under O 45 r 3(1)(a) and .

[4] If the answer by the Court is in the affirmative, then the Court may proceed to dismiss the appellant's/plaintiff's claim.

[5] On the other hand, if the answer is 'No', then, judgment must be entered in favour of the appellant/plaintiff as prayed.

[6] The High Court answered the question in the affirmative. Hence, the present appeal.

[7] The reason given by the learned High Court Judge is as follows:

Court's interpretation of the legal provisions

There are various ways for the defendant, as owner of the premises, to enforce the judgment in order to recover possession of the premises. Should the defendant elect to enforce the judgment for possession of immovable property under O 45 r 3 of the ROC, then the defendant is required to obtain the leave of the Court first, followed by the issue of the Writ of Possession?

Order 45 r 3(1) states that a judgment or order for the giving of possession of immovable property "may be enforced by one or more of the following means" namely, a Writ of Possession, or in the case in which r 5 applies,an order of committal. It must be noted that the word used is "may" and not "shall". This means that there may be more than the one or two ways provided in O 45 r 3(1)(a) and (b) of the ROC for the defendant to enforce the judgment for possession of his immovable property. It is therefore open to the defendant to elect whether to enforce the judgment under O 45 r 3 of the ROC or by other means.

In this case, the defendant elected not to apply for a Writ of Possession under O 45 r 3 of the ROC. Instead, he elected to proceed under s 234(2) of the NLC, when the plaintiff, as tenant, had breached the provisions of the Tenancy Agreement by not paying rental or arrears of rental to the defendant as owner and landlord of the premises, by re-entry onto the land, ie under the first limb of the said s 234(2), and not by action in Court.

As stated in s 234(2) of the NLC, the defendant's re-entry onto the land is subject to the provision of any other written law for the time being in force. In this case, the other written laws which are relevant are the ROC and the SRA. Oder 45 r 3 of the ROC, as I had stated earlier, does not make it mandatory for the defendant to enforce the judgment under that provision and to obtain a Writ of Possession.

[8] On 19 February 2013, we have allowed the appellant's appeal with costs. We shall now give our grounds.

[9] From now onwards, we shall be referring to the appellant as the 'plaintiff',and to the respondent as the 'defendant'.

[10] We shall begin with the essential facts of the case.

[11] The defendant is the owner of a house at Taman Desa, Segambut. He rented out the house to the plaintiff under a tenancy agreement dated 19 April 2010. The period of the tenancy agreement is two years. The rental is RM750 per month. The plaintiff had been defaulting in the payments of the monthly rentals for several months since 1 January 2011; and continued to default despite the defendant's solicitor having issued her with a notice of demand dated 25 February 2011.

[12] The defendant, thereafter