Shaik Daud Ismail JCA:

[1] This is an appeal from the decision of Justice Ong See Seng who had 24 June 1994 ruled that a default judgment entered on 2 March 1994 against the appellant is a regular judgment and he accordingly dismissed an application by the appellant to have it set aside.

[2] The facts of the case are that on 5 August 1993 the respondent took out an originating summons claiming vacant possession (purportedly under O 89 Rules of the High 1980), of premises Nos 88, 90 and 92 Jalan CM Yusof, Ipoh, Perak. He also applied for other relief including a permanent injunction restraining the appellant from trespassing onto the property. On 14 August 1993 the appellant entered a conditional appearance and on 25 August 1993 took out a summons to strike out the originating summons, on the grounds, inter alia, that he was a tenant holding over.

[3] He contends that the respondent in his affidavit also admitted that the appellant was a tenant holding over and therefore the summary provision under O 89 is not applicable. The respondent is of the view that the originating summons is not under O 89 since it also claims for other reliefs apart from vacant possession. He contends