Abdul Hamid FJ

The appeal is against the decision of the Magistrate at Kuala Lumpur on May 9, 1979 setting aside the Warrant of Distress on the ground that the appellants were not the landlord of the respondents.

The appellants obtained a Warrant of Distress for the movable property found on the ground floor of No. 40, Jalan Tuanku Abdul Rahman, Kuala Lumpur (hereafter called the said premises) to recover a sum of $10,050 being 3 months' rent in arrears allegedly due to the appellants.

In the affidavit in support of the application the appellants averred that they are the owners and landlord of the said premises and the respondents, trading under the name and style of Sri Silver Emporium are the tenants of the appellants at monthly rental of $3,350.

The appellants alleged that the respondents were in arrears of rent for 3 months and have neglected to pay on demand.

Warrant of Distress was issued on February 22, 1979. On March 3, the respondents applied to set aside the order. It was contended that they are not the tenants of the appellants but of Selvam Holdings (M) Sdn. Bhd. since July 1976 paying the rentals to Selvam Holdings as evidenced from the receipts and vouchers annexed to the affidavit as exhibits.

The appellants filed an affidavit in reply stating that they are the registered proprietors of the said premises and are the majority shareholders of the Selvam Holdings (M) Sdn. Bhd. They said that the Selvam Holdings are occupying the 1st floor of the said premises and have been acting as agents in respect of collection of rental and maintenance of the said premises. The respondents, nonetheless, had dealt with the first named appellant. It is further stated that the tenancy commenced in 1976 and there was an agreement in writing signed by the first appellant.

At the hearing before the Magistrate the 1st appellant was cross-examined on oath and she stated that rentals were paid to Selvam Holdings since 1976 and not to the appellants. The respondents had not been told not to pay the rentals to Selvam Holdings. She admitted signing the receipts but had done so on behalf of Selvam Holdings. She also admitted that Selvam Holdings were her tenants and she herself is the managing director of that company. She further said that she did not inform the respondents that she was collecting as agents.

The document purporting to be a tenancy agreement between the appellants and the respondents was produced before the Magistrate, but its admission was objected to by counsel for the respondent on the ground that it was not signed, dated or stamped.

The learned Magistrate concluded that Selvam Holdings were the landlord of the said premises and ordered that Warrant of Distress be released.

In the grounds of judgment the Magistrate found as a fact that Selvam Holdings were the chief tenants and also landlord of the said premises and the appellants were not, therefore, the proper party to apply for the issue of the Warrant of Distress.

On appeal before me counsel for the appellants contended that the learned Magistrate has erred in failing to deal with the admissibility of the agreement. On record it is clear that the Magistrate rejected it for she never considered the document as part of the exhibit. Counsel for the appellants further contended that the document could be compounded under the relevant provision of the Stamp Ordinance and thereafter be admitted in evidence. Section 52 of the Stamp Ordinance prohibits the admission of such document but plainly it could be admitted in evidence under proviso (a) on payment of duty and penalty in accordance with section 43 or 47 of the Ordinance. In this regard the appellants ought to have urged the Magistrate to invoke the proviso but this they did not do. In any event the document, even if it was admitted, would have carried very little weight or none at all and certainly was insufficient to tilt in favour of the appellants. The document was neither signed nor dated.

In my view the learned