1. ) KATIRVELL A/L NAGEICHELVAM v 1. ) Danishkumar A/l Chandra Sekera (WA-12BNCvC-170-12/2022)

MARAN A/L VENGADAPATHY …. APPELLANTS

2.

DANISHKUMAR A/L CHANDRA SEKARA PACIFIC & ORIENT INSURANCE CO BHD

THAVANESH A/L RAMAYAH .… RESPONDENTS GROUNDS OF JUDGMENT Enclosure 13: The Appellant’s application to amend his Notice of Appeal under Order 4 Rule 1 Rules of Court 2012 (RoC) 21/09/2023 15:47:47 WA-12BNCvC-170-12/2022 Kand. 51 [1] On 29.8.2023, this Court dismissed the Appellant’s application to amend the Notice of Appeal filed on 8.12.2022 to insert the name of the Second Plaintiff at the trial at the Session Court. This Court was informed that his Notice of Appeal was not served on the First, Second and Fourth Respondents. The Appellant confirmed that his appeal was only on liability and that he was withdrawing the appeal against them. This Court thereby struck out his appeal against them and proceeded to fix hearing dates for the appeal against the Third and Fifth Respondent. The Appellant filed an appeal against the decision of this Court. The following are the reasons this Court premised its dismissal of the Appellant’s said application under Enclosure 13. [2] On 30.11.2022 the Session Court delivered its decision after a full trial. The Appellant, dissatisfied by the decision, filed a Notice of Appeal that stated: “AMBIL PERHATIAN bahawa Perayu, Katrvell a/l Nageichelvam, yang tidak berpuas hati dengan keseluruhan keputusan Hakim, Mahkamah Sesyen Kuala Lumpur Sivil (4), Puan Wan nor Aklima binti Wan Salleh) yang diberikan pada 30 haribulan November 2022 dan ingin merayu kepada Mahkamah Tinggi Kuala Lumpur terhadap keputusan Hakim Mahkamah Sesyen Kuala Lumpur sari segi Isu Liabiliti sahaja.” [3] Five months later on 8.5.2023 the Appellant filed this application to add the name of the Second Plaintiff at the trial at the Session Court Maran a/l Vengadapathy in the body of the Notice of Appeal. Although the name of the Second Plaintiff was in the intitulement, it was missing from the body of contents of the Notice of Appeal. It was averred that the mistake was inadvertent with no intention to mislead the court. [4] The Third Respondent strongly objected to the application to amend the Notice of Appeal as it amounted to include another appellant through the proposed amendment. The case of Newlake Development Sdn Bhd v Tetuan Kumar Jaspal Quah & Aishah [2018] MLJU 473 was referred to where the High Court in that case was not satisfied that the application was solely to amend its name but found that it was to substitute with another party. So, the Third Respondent submitted that it was not merely a procedural technicality or irregularity which it cannot be allowed. [5] Furthermore, the Third Respondent contended that there was inordinate delay when this appeal proceedings had proceeded with a few matters that were resolved within five months. The Third Respondent had also complained that the Notice of Appeal was not in the format required and that it was brought under the wrong rules of the RoC. The case of Tan Siew Chin Sdn Bhd v Ng Jit Thye & Ors [2020] 1 LNS 1762; [2020] MLJU 2026. [6] The Third Respondent insisted that they were prejudiced as the matter was already fixed for hearing when this application was filed. Thus it was submitted that it would deprived from raising the issue of the defective Notice of Appeal in particular when there was a delay in filing this application. The Third Respondent had relied on Hew Li Yee v Heng Seet Fun [2019] MLJU 1673. Between the time the Appellant filed his Notice of Appeal and this application of his to amend it by inserting the Second Plaintiff as the Second Accused, this appeal was consolidated with two other appeals that arose against the same decision by the Session Court and that the appeals were transferred to this Court. This application was only filed after those interlocutory matters were disposed of. Considerations undertaken by this Court [7] It is true that the Appellant based this application on the wrong provision of the RoC – Order 4 Rule 1 RoC certainly addresses consolidation of cases. The wordings are reproduced herein: “Where two or more causes or matters are pending, and if it appears to the Court that –

some common question of law or fact arises in both or all of them;

the rights to relief claimed therein are in respect of or arise out of the same transaction or series of transactions; or

for some other reason it is desirable to make an order under this rule, the Court may order the causes or matters to be consolidated on such terms as it thinks just or may order the causes or matters to be tried at the same time or one immediately after another or may order any of the causes or matters to be stayed until after the determination of any of other of the causes or matters.” [8] However, this Court accorded opportunity, in the interests of justice, to the Appellant to explain reasonable grounds that accounted for the mistake and the delay. Nothing satisfactory was offered. What took this Court’s attention was the Appellant’s averment that he had only realised his error after reading the Session Court’s grounds of judgment pursuant to him filing the Notice of Appeal. The Session Court had issued its grounds of judgment on 1.3.2023 pursuant to the Appellant’s appeal. The whole judgment addressed the appeal filed by the Appellant and not on the premise that there was an appeal by the Second Plaintiff. The Appellant now wants the Second Plaintiff to be a part of this appeal. The Second Defendant is months out of time to file his notice of appeal. Should this Court allow the amendment, the Session Court Judge now would have to write her grounds of decision when she had already issued them and demonstrated her assessment against the First Defendant. There is prejudice that would be occasioned should this application be allowed. Even though the intitulement stated the name of the Second Plaintiff but the contents and body clearly stated that it was the Appellant who was dissatisfied with the Session Court’s decision. [9] The Fifth Respondent had left the entire matter to the discretion of this Court. [10] Taking into account the facts and circumstances of this case, this Court finds that the mistake was not reasonably explained, neither was the inordinate delay taken to file this application. It was not a matter of just ratifying a piece of document if this application was allowed. It would result an addition of another party. On this note, this Court observed that the proposed additional party had a fair hearing and the trial court had decided and determined all factual issues upon the examination of evidence. When it comes to appeal, it is not as of right – parties must confine and adhere to the strict timelines as provided for. [11] This Court did not find this case one where discretion ought to be exercised. There must be finality to all legal proceedings. It would be unfair to resuscitate the matter for the proposed additional party. The Session Court Judge would consequentially be compelled to write its grounds of decision way after the period of appeal to file by the Second Plaintiff had long expired. Based on this Court’s considered view, this application was dismissed with costs of RM2,000. This Court will accordingly proceed to hear with the substantive appeal by the Appellant against the Third and Fifth Respondents on the issue of liability. DATED 15 SEPTEMBER 2023 ROZ MAWAR ROZAIN JUDICIAL COMMISSIONER HIGH COURT IN MALAYA KUALA LUMPUR For the Appellants: Krishna Vanie a/p Indran T/n Nith Gowri Lachman & Partners For the 2nd Respondents: Eshwinder Kaur Grill T/n Lovelace & Hastings For the 3rd Respondents: Archana Devi together with Ramasamy T/n Viknes Ratna & Co.