Searching Case Laws & Precedent on Legal Query.....!
Scanned Judgements…!
Searching Case Laws & Precedent on Legal Query.....!
Scanned Judgements…!
In the realm of enforcing court orders, particularly injunctions, understanding procedural nuances can make or break a case. A common query among legal professionals and litigants is: What is the distinction between Order 45 r 5 and Order 52 penal notice? This question arises frequently in contexts involving alleged breaches of court orders, where committal for contempt is sought. While these provisions under the Rules of Court (RC) in Malaysia are often invoked together, they serve distinct roles—one substantive, the other procedural. This blog post breaks down their differences, drawing from judicial interpretations and practical applications, to help you navigate enforcement proceedings effectively.
Important Disclaimer: This article provides general information based on available legal documents and is not intended as specific legal advice. Consult a qualified lawyer for advice tailored to your circumstances.
Order 45 Rule 5 (O 45 r 5) RC offers the substantive mechanism for enforcing judgments or orders that require a person to do or abstain from an act, typically through committal with leave of the court. It applies directly to disobedience, such as breaching an injunction. In contrast, Order 52 RC governs the procedural aspects of committal proceedings, including applications for leave (e.g., under r 2(2) or r 3), the need for affidavits verifying facts, and substantiating contempt beyond reasonable doubt. CHAN ENG LEONG & ANOR vs GOH CHOON KIMN & ORS (ENCLS 70 & 59) - 2021 MarsdenLR 1345TAN SRI DATO DR ROZALI ISMAIL & ORS vs LIM PANG CHEONG & ORS - 2011 MarsdenLR 1312
The documents reviewed do not explicitly reference a 'penal notice' under Order 52, but they highlight Order 52's role in securing procedural leave for committal applications stemming from breaches enforceable under O 45 r 5. This interplay underscores that while O 45 r 5 identifies what can be enforced (the breach), Order 52 dictates how to pursue it (the process).
To clarify the differences:
This separation mirrors other legal distinctions, such as the difference between an order of assessment and a notice of demand under tax laws, where substantive changes cannot be made via procedural intimations. Commissioner of Income Tax VS Dawood Sons - 2012 Supreme(Mad) 4704
O 45 r 5 specifically targets enforcement where 'a person disobeys a judgment or order requiring him to abstain from doing an act, then... the judgment or order may be enforced... with the leave of the Court, an order of committal.' JURIS TECHNOLOGIES SDN BHD & ANOR vs FOO TIANG SIN & ORS (ENCL 41) - 2018 MarsdenLR 718YIP YEE FOO vs EDMUND CHARLES LIEBENBERG - 2014 MarsdenLR 111
This was evident in cases involving breaches of an Ad Interim Interlocutory Injunction dated 14 January 2020, where applicants sought leave for committal against contemnors under O 45 r 5 read with O 52 r 3 RC. CHAN ENG LEONG & ANOR vs GOH CHOON KIMN & ORS (ENCLS 70 & 59) - 2021 MarsdenLR 1345 Service of the order is typically required under O 45 r 7(2), but exceptions exist under r 7(6) if the person had actual notice—such as being present when the order was made or notified by telephone. JURIS TECHNOLOGIES SDN BHD & ANOR vs FOO TIANG SIN & ORS (ENCL 41) - 2018 MarsdenLR 718SARASWATHY KANDASAMI vs DATUK SARAVANAN MURUGAN & ANOTHER APPEAL - 2021 MarsdenLR 3264
Order 52 lays out the pathway for committal, starting with leave under r 2(2), supported by an affidavit verifying the facts. Courts insist on strict compliance; otherwise, applications may be struck out. Allegations must be proven beyond reasonable doubt. TAN SRI DATO DR ROZALI ISMAIL & ORS vs LIM PANG CHEONG & ORS - 2011 MarsdenLR 1312
For example, leave might be granted ex parte under O 52 but remains challengeable. In one instance, release of funds before service of a preservation order negated any breach, illustrating how timing and service affect outcomes. TAN SRI DATO DR ROZALI ISMAIL & ORS vs LIM PANG CHEONG & ORS - 2011 MarsdenLR 1312CHAN ENG LEONG & ANOR vs GOH CHOON KIMN & ORS (ENCLS 70 & 59) - 2021 MarsdenLR 1345
The absence of explicit mention of a 'penal notice' in these documents suggests it may function analogously to show-cause requirements under O 52, emphasizing personal service to warn of penal consequences—much like how service prerequisites under O 45 r 7 ensure due process.
No case reviewed shows standalone use. O 45 r 5 provides the enforcement grounds (disobedience to abstain/do acts), while O 52 handles the procedure (leave, affidavits). A typical application reads: leave pursuant to O 45 r 5 RC read together with O 52 r 3 RC for injunction breaches. CHAN ENG LEONG & ANOR vs GOH CHOON KIMN & ORS (ENCLS 70 & 59) - 2021 MarsdenLR 1345TAN SRI DATO DR ROZALI ISMAIL & ORS vs LIM PANG CHEONG & ORS - 2011 MarsdenLR 1312
This substantive-procedural divide is akin to distinctions in criminal law, such as common object (shared goal among a group) versus common intention (individual intents aligning for an act). Though the object may be common, intentions differ, just as enforcement grounds (O 45 r 5) differ from procedural steps (O 52). STATE OF U. P. VS KARAN JIT SINGH @ LADI - 2015 Supreme(All) 535Laxman Ganpat Parekar VS State of Maharashtra - 2012 Supreme(Bom) 1908Nagaraja VS State of Karnataka - 2009 1 Supreme 94Nagaraja VS State of Karnataka - 2008 Supreme(Ori) 538
Enforcement under O 45 r 5 generally requires personal service unless O 45 r 7(6) applies (actual notice). JURIS TECHNOLOGIES SDN BHD & ANOR vs FOO TIANG SIN & ORS (ENCL 41) - 2018 MarsdenLR 718SARASWATHY KANDASAMI vs DATUK SARAVANAN MURUGAN & ANOTHER APPEAL - 2021 MarsdenLR 3264 Committal under O 52 fails without proven breach (e.g., pre-service actions) or unmet procedural rules like affidavit verification—proof must exceed reasonable doubt. TAN SRI DATO DR ROZALI ISMAIL & ORS vs LIM PANG CHEONG & ORS - 2011 MarsdenLR 1312
Penal notices, while not directly addressed, likely enhance warnings, similar to how tax authorities distinguish intimations from full assessments to avoid overreach. Commissioner of Income Tax VS Dawood Sons - 2012 Supreme(Mad) 4704
For alleged injunction breaches:
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(A) Rules of Court 2012 - Order 45 r 5 - Order 42 r 6(1) - Application to set aside Leave Order for committal proceedings - Court ... Under O 52, there is no requirement for a penal notice to be indorsed on the specific order or judgment that is sought to be enforced for contempt. ... Not having a penal notice in the Judgment breaches O 45 r 7(4) of the ROC . ... P Is Not Named In The Penal Notice#HL_EN....
(A) Rules of 2012 – Order 52 r 4 – Contempt of court – Non-compliance with consent judgment – The applicant sought committal of the ... The failure of the applicant to indorse the penal notice on the consent judgment is fatal. [53]Order 45 r 7(4) of the Rules provides as follows: Service of copy of judgment or order prerequisite to enforcement under r 5 (O 45, r 7) (1) ... ... [30]Order 45 r 1(1....
Only by endorsing the penal notice will it give notice to the Alleged Contemnors that they may potentially face penal sanctions if they fail to abide by the said order. ... In order to enforce a judgment by an order of committal under Order 45 rule 5 (1) (A), the said Consent Order must be served personally on the person affected. ... This finding further reinforces the need to have the ....
In Tan Bee Ang, the Application for committal was based on O 45 and O 52 of the Rules of 1980 ("RHC"). That was the reason why I held that the penal notice was required to be endorsed in the Order in view of the requirements of O 45 r 7(4)(a) of the RHC. ... Saving for power to commit without application for purpose (O 52, r 5) ROC , the Plaintiff's Application is for committal of the Defendant for contempt of Court for not complying with the Cons....
Only by endorsing the penal notice will it give notice to the alleged contemnors that they may potentially face penal sanctions if they fail to abide by the said order. ... [53] Order 45 r 7(4) of the Rules provides as follows: Service of copy of judgment or order prerequisite to enforcement under r 5 (O 45 r 7) (1)..... ... In the case of ; [2021] 11 MLJ 237; [2021] 7 CLJ 809 it was held as follows: "[5....
Furthermore, the Consent Order does not contain any penal notice in Form 83 of Appendix A to RC (Penal Notice) directed at the 1st and 3rd to 5th Defendants [as required by O 45 rule 7(4) RC]. ... Effect Of Lack Of Penal Notice In Consent Order [61] Penal Notice is provided by O 45 r 7(4) RC which reads as follows: "rule 7(4) There shall be endorsed on the copy of an or....
(A) Rules of Court 2012 – Order 52, Rule 2B – Contempt of Court – Leave to commence committal proceedings refused due to failure ... The failure of the applicant to indorse the penal notice on the consent judgment is fatal. [53] Order 45 r 7(4) of the Rules provides as follows: Service of copy of judgment or order prerequisite to enforcement under r 5 (O 45 r 7) (1)..... (2)..... ... Platinum Eden Asset Management Sdn Bhd & Anor, [....
[5]Order 52 r 2B of the ROC 2012 provides : Other cases of contempt (O. 52, r. 2B) 2B. ... Only by endorsing the penal notice will it give notice to the alleged contemnors that they may potentially face penal sanctions if they fail to abide by the said order. ... [53] Order 45 r 7(4) of the Rules provides as follows: Service of copy of judgment or order prerequisite to enforcem....
[12]During the hearing, the court raised the question of whether Order 52 of the ROC 2012Order 52 can only be applied with the condition that Order 45 rules 4 and 5 must be followed first. ... The third to fifth defendants therefore did not breach the consent order when the first defendant did not allow the applicant to have access to the outstanding documents, (para 43) (4) The omission of a penal notice as required by O. #HL_STAR....
(iv) The penal notice in the Order merely conforms to the wording of Order 45 rule 7(4) and Form 87 of the RHC. ... - And, finally, a notice of motion for committal in cases where Order 52 rule 3(3) of the RHC applies unless, of course, the Court dispenses with such service (Order 52 rule 3(4) of the RHC ). ... That Order 45 rule 7 of the RHC is limited in its application to....
It was pointed out that there was a difference between common object and common intention ; though the object might be common, the intention of the several members might differ. In Barendra Kumar Ghosh v. Emperor, 52 Ind App 40 : (AIR 1925 PC 1) (B) the distinction between Sections 149 and 34, Penal Code was pointed out. It was observed that Section 149 postulated an assembly of five or more persons having a common object, namely, one of those objects named in Section 141, and then the doing of acts by members of the assembly in prosecution of that object or such as the mem....
There is a distinction between an order of assessment and a notice of demand. Under Section 246 also, a clear distinction is made between an intimation and an order of assessment. Except intimation, no other order is contemplated under Section 143(10(a). The Assessing Officer cannot under Section 143 (10(a), change the status of a firm to 'association of persons' which can be done under Section 185 of the Act, at the time of assessment."
It was pointed out that there was a difference between common object and common intention; though the object might be common, the intention of the several members might differ. The section describes the offence which is to be attributed under two alternative forms : (1) it must be either an offence committed by a member of the unlawful assembly in prosecution of the common object of that assembly; or (2) an offence such as the members of that assembly knew to be likely to be committed in prosecution of that object. It was observed that S. 149 postulated an assembly of five or more persons ha....
It was pointed out that there was a difference between common object and common intention ; though the object might be common, the intention of the several members might differ. The section describes the offence which is to be so attributed under two alternative forms: (1) it must be either an offence committed by a member of the unlawful assembly in prosecution of the common object of that assembly; or (2) an offence such as the members of that assembly knew to be likely to be committed in prosecution of that object. In Barendra Kumar Ghosh v. Emperor, 52 Ind App 40 : (AIR 1925 PC....
In Barendra Kumar Ghosh v. Emperor, 52 Ind App 40 : (AIR 1925 PC 1) (B) the distinction between Sections 149 and 34, Penal Code was pointed out. The section describes the offence which is to be so attributed under two alternative forms: (1) it must be either an offence committed by a member of the unlawful assembly in prosecution of the common object of that assembly; or (2) an offence such as the members of that assembly knew to be likely to be committed in prosecution of that object. It was pointed out that there was a difference between common object and common intention....
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