Ganesan A/L Narayanasamy v Kasturi A/P Mohanadas (AA-22NCvC-84-10/2025)

1 IN THE HIGH COURT IN MALAYA AT IPOH 5 IN THE STATE OF PERAK DARUL RIDZUAN CIVIL SUIT NO.: AA-22NCvC-84-10/2025 BETWEEN 10 1. GANESAN A/L NARAYANASAMY (NRIC NO.: 500224-02-5129)

2. KALIAMAH A/P PERUMAL (NRIC NO.: 570701-02-6268) … PLAINTIFFS 15 AND

1. KASTURI A/P MOHANADAS (NRIC NO.: 881226-08-5952)

2. SAKTHIVEL NAGALINGAM (NRIC NO.: 651107-08-5745) (beramal undang-undang di bawah firma guaman Tetuan Manjeet Kaur & Co.) 25

3. JOSEPH A/L SEBESTIAN [NRIC No.: 540502-10-5169] (Pemilik Tunggal dan beramal atas nama dan Gaya Tetuan Amran Joseph Chan & Co.) 30 08/04/2026 16:37:30 AA-22NCvC-84-10/2025 Kand. 40 S/N syqvltsnkimGZyv9k9tyA **Note : Serial number will be used to verify the originality of this document via eFILING portal 2

4. TETUAN AMRAN JOSEPH, CHAN & CO.

5. SATHIAKUMAR A/L SELVANATHAN 35 [NRIC No.: 721118-08-5215] …. DEFENDANTS GROUNDS OF JUDGMENT 40 Introduction [1]. This application, filed by the defendants vide enclosure 8, seeks to strike out the plaintiffs’ amended writ and statement of claim pursuant to Order 18 rule 19(1)(a) and/or (d) and Order 92 rule 4 of the Rules of Court 2012 (“ROC 2012”). 45 The defendants contend that the action is procedurally defective because the plaintiffs failed to comply with Order 72 rule 7 of ROC 2012, which requires the issuance of a citation before commencing a writ to revoke a grant of probate. [2]. At its core, however, the question confronting the court is a 50 broader one i.e. should this dispute be struck out on a procedural technicality, or should it proceed to be determined on its substantive merits? In the modern procedural approach mandated by the courts under Order 1A and Order 2 rule 1 of the ROC 2012, striking out remains a drastic remedy of last 55 resort, reserved only for defects that are truly incurable, jurisdictional, or where real prejudice is demonstrated. S/N syqvltsnkimGZyv9k9tyA **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 Background Facts [3]. The present action arises from a dispute concerning the 60 validity of the Will of a deceased person and the grant of probate issued in respect of that Will. The plaintiffs commenced this action against the defendants, whereto the 1st defendant is the alleged principal beneficiary and executor named in the Will and also the deceased’s wife. In contrast, 65 the 2nd and 3rd defendants are solicitors, the 4th defendant is their law firm involved in the preparation of the Will, and the 5th defendant is alleged to be a witness to the Will. [4]. The plaintiffs allege that the Will dated 27 October 2023 was not a genuine testamentary instrument of the deceased. 70 According to the plaintiffs, the defendants had conspired to create the said Will fraudulently. Subsequently, they procured a grant of probate in favour of the 1st defendant based on that disputed document. Consequently, the plaintiffs seek, among others, a declaration that the said Will is invalid and an order 75 for the revocation of the grant of probate issued by the High Court. [5]. To pursue this challenge, the plaintiffs commenced the present proceedings by filing a writ of summons and statement of claim on 2 October 2025, which was later amended on 6 October 80

2025. The plaintiffs’ pleadings assert that the impugned Will was created through fraudulent means and that the probate obtained by the 1st defendant ought not to have been granted. S/N syqvltsnkimGZyv9k9tyA **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 [6]. Following the commencement of the suit, the defendants filed enclosure 8, dated 9 November 2025, seeking to strike out the 85 plaintiffs’ writ and statement of claim pursuant to Order 18 rule 19 of ROC 2012. The defendants contend that the plaintiffs’ action is procedurally defective because the plaintiffs failed to comply with the mandatory requirement under Order 72 rule 7 of ROC 2012, which requires the issuance of a citation 90 before commencing a writ action to revoke a grant of probate. Issue for determination [7]. The central question raised in the striking out application is whether the defendants have established sufficient grounds under Order 18 rule 19 of ROC 2012, to justify striking out the 95 plaintiffs’ writ and statement of claim at this preliminary stage, based on the alleged non-compliance with the probate procedure prescribed under Order 72 of ROC 2012. It must also be determined whether the defendants’ application can properly be considered under Order 18 rule 19(1)(d) ROC 100 2012 in the absence of any supporting affidavit. Preliminary objection on the absence of an affidavit [8]. At the outset, I shall address the plaintiffs’ preliminary objection concerning the defendants’ reliance on Order 18 rule 19(1)(d) of ROC 2012, to strike out based on alleged abuse of the 105 process of the court. It is an established principle of law that while limb (a) (no reasonable cause of action) is confined to S/N syqvltsnkimGZyv9k9tyA **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 the four corners of the pleadings, limb (d) must be supported by affidavit evidence. [9]. Under Order 18 rule 19(2) of ROC 2012, it provides that no 110 evidence is admissible for an application brought under rule 19(1)(a). In contrast, where reliance is placed on rule 19(1)(d), the applicant bears the burden of establishing through affidavit evidence that the impugned pleading constitutes an abuse of the court’s process. In the present case, the defendants filed 115 enclosure 8 without any supporting affidavit. A bare submission that the plaintiffs’ alleged non-compliance with Order 72 of ROC 2012 amounts to an abuse of process is insufficient. It is incumbent upon the defendants to demonstrate, through affidavit evidence, how such non- 120 compliance results in an abuse of the court’s process. Such matters cannot be established merely through submissions from the Bar. [10]. Consequently, I hold that the application cannot be considered under Order 18 rule 19(1)(d). The court is therefore restricted 125 to considering this application in enclosure 8, under limb (a) only, looking solely at whether the statement of claim, on its face, discloses a reasonable cause of action or is otherwise unsustainable. The substantive challenge under Order 72 rule 7 of ROC 2012 130 [11]. The defendants contend that the plaintiffs’ failure to issue a citation under Order 72 rule 7 of ROC 2012 prior to S/N syqvltsnkimGZyv9k9tyA **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 commencing the writ amounts to “putting the cart before the horse”. They argue that this procedural lapse constitutes a fatal irregularity, rendering the plaintiffs’ action unsustainable 135 under Order 18 rule 19(1)(a) of ROC. In support of this contention, the defendants place significant reliance on the Federal Court decision in Yap Teck Ngian v Yap Hong Lang & Ors [2007] 1 MLRA 869; [2007] 5 CLJ 290; [2007] 5 MLJ 756; [2007] 5 AMR 269. 140 [12]. In Yap Teck Ngian (supra), the respondents intended to challenge the grant of letters of administration and commence a writ action to revoke it. Knowing that the issuance of a probate citation was a condition precedent to commencing a writ action, they applied for the citation first by filing a praecipe 145 supported by a verifying affidavit pursuant to Order 72 rule 8(2) of the Rules of the High Court 1980. The Senior Assistant Registrar granted the citation, and the High Court affirmed that decision. On appeal, the appellant contended that the citation was defective as it had not been applied by way of 150 summons in chambers. The Court of Appeal rejected this argument and held that the proper procedure was indeed by praecipe with a verifying affidavit under Order 72 rule 8(2). On further appeal to the Federal Court, the Federal Court affirmed the Court of Appeal’s decision and reiterated that a citation 155 must ordinarily be issued before a writ for revocation is filed. However, the case before the Federal Court is not the same as our present case, where the writ had been filed before the issuance of a probate citation. S/N syqvltsnkimGZyv9k9tyA **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 [13]. In the circumstances, I find that Yap Teck Ngian (supra) is 160 distinguishable from the present case. The central issue in Yap Teck Ngian (supra) concerned the proper mode of applying for a citation. It did not address a situation in which a writ had already been filed and the court was called upon to consider whether a procedural omission could be cured under the 165 court’s inherent jurisdiction to prevent a miscarriage of justice. [14]. However, this court is mindful of the principle articulated by the Federal Court in Yap Teck Ngian (supra), by His Lordship Nik Hashim FCJ, who observed: “In the Administration of Estates Handbook, Kanesh 170 Sundrum states at p 187 para 192: Every probate action must be begun by writ issued out of the Registry of the High Court. The writ must be endorsed with a statement of the nature of the interest of the plaintiff and of the defendant in the estate of the deceased. A writ 175 beginning an action for the revocation of probate or administration can only be issued after a citation to bring in grant has been issued or the probate or letters of administration has been lodged in the said registry” (underline emphasised) 180 [15]. The principle in Yap Teck Ngian (supra) was subsequently applied by the High Court in the recent decision of Sim Kooi Chuan & Ors v Nelson Sim Ping Hun [2023] 6 MLRH 549; [2023] MLJU 2016; [2023] CLJU 1841 where the failure to issue a citation prior to the filing of a writ constituted a fatal 185 irregularity rendering the claim unsustainable. S/N syqvltsnkimGZyv9k9tyA **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 [16]. In this respect, I am mindful of the mandatory language of Order 72. However, I find that both Yap Teck Ngian (supra) and Sim Kooi Chuan (supra) are distinguishable from the present case. In Yap Teck Ngian (supra), as noted earlier, the 190 citation had already been issued before the writ was filed. The dispute there concerned only the mode of applying for the citation, not a situation where a citation was filed after the writ in order to cure a procedural defect. Accordingly, no issue of remedying a procedural lapse arose in that case. As for Sim 195 Kooi Chuan (supra), the citation was never filed at all, and the court struck out the action because the plaintiffs had failed to file it even four years into the litigation, rendering the omission irreparable at the time of the hearing. In the present case, it is undisputed that the plaintiffs have since filed the citation under 200 the relevant probate case number and served it on the defendants. The procedural “cart” that was initially placed before the “horse” has now been properly aligned, and no prejudice has been shown to have been suffered by the defendants. 205 [17]. Having considered the cases above, this court is inclined to follow the decision of the High Court in Guindarajoo Vegadason v Satgunasingam Balasingam [2014] MLRHU 507; [2014] CLJU 866, referred to by the plaintiff in their submission, where, just as in the present case, there is a non- 210 compliance with Order 72 rule 2(3) of ROC 2012. In that case, the High Court adopted the approach taken by Gopal Sri Ram JCA in Chong Keat Realty Sdn Bhd v Ban Hin Lee Bank S/N syqvltsnkimGZyv9k9tyA **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 Bhd [2003] 1 MLRA 427; [2003] 3 MLJ 321; [2003] 3 CLJ 532; [2003] 4 AMR 421, where His Lordship explained the 215 modern approach that courts should adopt when there has been a failure to comply with procedural requirements. Her Ladyship Komathy J (as Her Ladyship then was) in Guindarajoo Vegadason (supra) quoted the passage from Chong Keat Realty Sdn Bhd (supra) to state that procedural 220 breaches should not automatically invalidate proceedings unless real injustice is shown. The quoted passage is as follows: "… the modern approach to the breach of procedural provisions by a litigant. It is to be emphasized that the courts 225 are concerned with the dispensation of both procedural and substantive justice according to the merits of a given case. So, when a party to litigation complains of breach of a procedural provision by his opponent, the primary question is not whether the particular provision is to be regarded as 230 mandatory or directory according to the terms of the language in which it is couched. The correct question that the judicial arbiter should ask himself is this: What injustice has the party complaining suffered by reason of the procedural breach? It is the answer to this question that will 235 ultimately determine whether the court should uphold or reject a procedural complaint." (underline emphasised) [18]. Therefore, the guiding consideration of the courts in the 240 modern procedural framework has always been the overriding interest of justice. This principle was reinforced S/N syqvltsnkimGZyv9k9tyA **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 with the introduction of the Rules of Court 2012 (“ROC 2012”), which marked a significant shift in civil procedure through the enactment of Order 1A and Order 2 rule 1. These 245 provisions emphasise that procedural rules are intended to facilitate the fair and just determination of disputes rather than to defeat claims on technical grounds. The relevant provision of Order 1A and Order 2 rule 1 is append below: “Regard shall be to justice (Order 1A) 250 In administering these Rules, the Court or a Judge shall have regard to the overriding interest of justice and not only to the technical non-compliance with these Rules.” “Non-compliance with Rules (Order 2 r 1)

(1) Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of any thing done or left undone, been non-compliance with the requirement of these Rules, the non-compliance shall be 260 treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein.” [19]. Even prior to the coming into force of the ROC 2012, the courts 265 consistently maintained that technical non-compliance with procedural rules should not override substantive justice, unless such non-compliance results in a serious miscarriage of justice, causes prejudice to the opposing party, or forms a jurisdictional challenge. This principle was clearly articulated in 270 S/N syqvltsnkimGZyv9k9tyA **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 Megat Najmuddin bin Dato’ Seri (Dr) Megat Khas v Bank Bumiputra (M) Bhd [2002] 1 MLRA 10; [2002] 1 MLJ 385; [2002] 1 CLJ 645; [2002] 1 AMR 1089, where the court cautioned against an overly rigid adherence to procedural rules. In that case, Mohtar Abdullah FCJ observed that the 275 court should not be “besotted by the rules” to the extent that justice is defeated merely by technical defects. The court’s primary duty is to ensure cases are decided on their merits rather than allowing rigid adherence to technicalities to undermine justice. His Lordship stated: 280 "[129] …Numerous judgments can be cited in support of this firm stand on the necessity for a strict adherence of the rules. I agree. However, a judge should not be so besotted by the rules that his sense of justice and fairness becomes impaired because of his blinkered fixation on technicalities 285 of the rules and the cold letter of the law." [20]. In another Court of Appeal decision in Tong Kim Soo v Tirai Prospektif Sdn Bhd [2019] MLJU 946; [2020] 3 CLJ 353; [2019] 1 LNS 237, the court clarified that striking out is a 290 remedy of last resort. The court held that: "it is not an option anymore for the courts to strike out a matter for non-compliance of the rules without giving an opportunity to the litigant to regularize the proceedings." 295 [21]. In Redang Paradise Vacation Sdn Bhd v Yap Chuan Bin & Other Appeals [2018] 2 MLRA 421; [2017] 5 MLJ 35; [2017] S/N syqvltsnkimGZyv9k9tyA **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 10 CLJ 296; 2017 Marsden LR 1047, the Court of Appeal emphasised that the modern procedural framework under Order 1A and Order 2 of ROC 2012 requires courts to 300 prioritise the just determination of disputes over strict technical compliance with procedural rules. It states: "[6] In the light of O 1A and O 2 of ROC 2012, it is not an option anymore for the courts to strike out a matter for non-compliance of the rules without giving an opportunity to the 305 litigant to regularise the proceedings or to condone the irregularity by the fiat of the court. It is only in extremely rare cases where the non-compliance cannot be condoned at all, the court will be obliged to strike out the matter Those are the cases where the respondent can demonstrate prejudice 310 as well as can establish that the breach cannot be compensated by costs." (underline emphasised) [22]. In the same context, another panel of the Court of Appeal in 315 Amirthanayaki Kumarasamy v. Lembaga Kelayakan Profesion Undang-undang Malaysia [2009] 4 MLRA 346; [2010] 1 MLJ 656; [2010] 6 CLJ 593; 2010 Marsden LR 3200, reiterated that procedural rules should not be applied in a manner that obstructs the attainment of substantive justice. It 320 observed: "Such procedural technical objection (as in the present case) should not be allowed to obstruct the process of justice to the deserving. As we move towards the era of facilitating the process of litigation, the raising of objection 325 S/N syqvltsnkimGZyv9k9tyA **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 on technical grounds would certainly and clearly be a thing of the past. It is clearly the intention and wisdom of the rules committee to provide for the smooth administration of the due process and administration of justice by way of substantial merits of the case and not merely on procedural 330 technical defaults (see Beauford Baru Sdn Bhd v. Gopala Krishnana/l VK Gopalan [2002] 1 MLRH 490; [2002] 6 MLJ 134; [2002] 3 CLJ 686; [2002] 4 AMR 4462). (underline emphasised) 335 [23]. Accordingly, consistent with the authorities referred to above on the overriding interest of justice, and as articulated by Komathy J (as Her Ladyship then was) in Guindarajoo Vegadason v Satgunasingam Balasingam [2010] 4 MLJ 842; [2010] 6 CLJ 954; [2010] 1 MLRH 350, the primary 340 question the court must ask when confronted with a procedural breach is this: what injustice, if any, has the complaining party suffered by reason of that breach? In the circumstances of the present case, the answer is clear. None has been shown. Conclusion 345 [24]. For the reasons set out above, the defendants’ application cannot succeed. The reliance on Order 18 rule 19(1)(d) fails in the absence of a supporting affidavit. On the face of the pleadings, the plaintiffs’ Statement of Claim discloses a reasonable cause of action grounded on allegations of fraud. 350 The plaintiffs’ non-compliance with Order 72 rule 7 amounts to no more than a technical irregularity and does not justify the S/N syqvltsnkimGZyv9k9tyA **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 drastic remedy of striking out, particularly as no prejudice has been demonstrated. Accordingly, Enclosure 8 is dismissed, with no orders as to costs. 355 Dated : 8 April 2026 360 [MOSES SUSAYAN] JUDGE 365 HIGH COURT IN MALAYA AT IPOH, PERAK Counsel : 370 For the Plaintiffs : Vilassini Nynasekaran Advocates and Solicitors [Messrs Loh Velu & Partners] Petaling Jaya, Selangor 375 For the Defendants : Manjeet Kaur (together with Sakthivel Nagalingam) Advocates and Solicitors [Messrs Manjeet Kaur & Co.] 380 Ipoh, Perak S/N syqvltsnkimGZyv9k9tyA **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 Headnotes: CIVIL PROCEDURE: Striking out – Application to strike out writ and statement of claim – Alleged non compliance with Order 72 rule 7 of Rules of Court 2012 – Failure to issue citation before 385 commencing writ to revoke grant of probate – Whether application under Order 18 rule 19(1)(d) sustainable without supporting affidavit – Whether statement of claim disclosed reasonable cause of action based on pleaded facts of fraud – Whether citation subsequently filed cured procedural lapse – Whether non 390 compliance constituted technical irregularity under Order 2 rule 1 of Rules of Court 2012 – Whether real prejudice or miscarriage of justice shown – Whether dispute should be determined on substantive merits in light of overriding interest of justice under Order 1A 395 S/N syqvltsnkimGZyv9k9tyA **Note : Serial number will be used to verify the originality of this document via eFILING portal