SARASWATHI A/P PREMAN v Jabatan Pendaftaran Negara (JPN) (MA-24NCvC-553-12/2025)

SARASWATHI A/P PREMAN (NRIC No: 030307-04-0240)

MURTHY A/L RAJAMANICKAM (NRIC No: 720429-04-5267) (suing as litigation representative of the deceased Vinurd a/l Murthy NRIC No: 000909-05-0289) ...APPLICANTS AND JABATAN PENDAFTARAN NEGARA ... RESPONDENT GROUNDS OF JUDGMENT A. INTRODUCTION [1] The application before the Court is not the Originating Summons itself, but an application by the Applicants to discontinue it. The discontinuance is sought upon two terms, both of which the Respondent resists. The controversy is therefore a narrow one, and it lies wholly in the terms upon which the proceedings should be brought to an end. [2] By a Notice of Discontinuance of Action filed on 29 May 2026 (encl. 12), the Applicants seek to discontinue the whole of the proceedings on the terms that there be no order as to costs and that they be at liberty to file afresh. [3] By a letter dated 5 June 2026 from the State Legal Adviser, Melaka (encl. 13), the Respondent objects on three grounds: that it was not served with a draft of the Notice beforehand; that it does not consent to a discontinuance with liberty to file afresh; and that it does not consent to a discontinuance without an order as to costs. The Respondent asks that the hearing date of 18 June 2026 be retained and that the Notice be set aside. [4] The complaint as to the non-service of a draft does not bear upon the substance of the matter and is addressed only so far as necessary. The two questions that fall to be decided are the terms of the discontinuance: first, whether the Applicants should be at liberty to file a fresh action; and secondly, the incidence of costs. B. MATERIAL FACTS AND PROCEDURAL HISTORY [5] The first Applicant, Saraswathi a/p Preman, is the mother of a child named Niyasvin. The second Applicant, Murthy a/l Rajamanickam, is the father of the deceased, Vinurd a/l Murthy, and sues as the litigation representative of the deceased as described in the cause papers. [6] The substantive chronology, taken from the affidavit in support affirmed by the first Applicant on 4 December 2025 (encl. 2) and its exhibits, is as follows. On 23 August 2024 the first Applicant and the deceased underwent a marriage ceremony according to Hindu religious custom. That marriage was not registered under the civil law. On 25 August 2024 the deceased died at Hospital Jasin, Melaka; the death certificate exhibited as Exhibit "D" records the cause of death as "cedera parah setelah ditetak". On 25 March 2025 the child Niyasvin was born at Hospital Melaka, and the birth was registered on 15 May 2025 under birth certificate no. ED733686. In the entry provided for the father, the particulars are recorded as "Maklumat Tidak Diperolehi" information not obtained. [7] The procedural history is material to the present application and is set out with particularity. The Originating Summons (encl. 1) was filed on 26 December 2025, together with the affidavit in support (encl. 2). The Respondent filed an affidavit in reply (the Afidavit Jawapan, encl. 6), affirmed on 9 March 2026 by Badrul Hisham bin Alias, the Ketua Pengarah Pendaftaran Negara and Registrar-General of Births and Deaths, and filed on 13 March 2026. The first Applicant filed an affidavit in reply (the Afidavit Balasan, encl. 8) on 16 April 2026. The Respondent then filed its written submissions (encl. 9) on 9 May 2026, accompanied by two bundles of authorities. The Applicants filed no written submissions. It was only thereafter, on 29 May 2026, that the Notice of Discontinuance (encl. 12) was filed. The Respondent's objection (encl. 13) followed on 5 June 2026, the matter having been fixed for hearing on 18 June 2026. [8] The nature of the Respondent's resistance to the substantive relief is relevant to the exercise of discretion, though not to be determined on this application. In substance, the Respondent's position on the affidavits and in encl. 9 is threefold: that there is no registered marriage between the first Applicant and the deceased and that a customary marriage solemnised after 1 March 1982 is in any event invalid, with the consequence that the child is illegitimate; that, for an illegitimate child, the father's particulars may be entered only at the joint request of the mother and the person acknowledging himself to be the father, who must sign the register, which cannot occur where that person is deceased; and that there is, in any event, no evidence of paternity no DNA report and no declaratory order establishing the deceased to be the child's biological father. I record these matters as the nature of the dispute, and not as findings. C. ISSUES FOR DETERMINATION [9] Three issues arise, the first being a threshold to the remainder:

(a) whether the discontinuance of these proceedings requires the leave of the Court;

(b) if so, whether leave ought to be granted upon a term permitting the Applicants to file a fresh action, or upon a term barring such an action; and

(c) the incidence of costs. D. THE GOVERNING FRAMEWORK: ORDER 21 OF THE RULES OF COURT 2012 [10] Discontinuance is governed by Order 21 of the Rules of Court 2012. Discontinuance without leave is available only in the limited cases provided by Order 21 rule 2 — relevantly, to "the plaintiff in an action begun by writ" within the time there prescribed (rule 2(1)) or where "all the parties to an action consent" (rule 2(4)). Outside those cases, Order 21 rule 3(1) provides that a party may not discontinue an action, "whether begun by writ or otherwise", without the leave of the Court, and that the Court "may order the action ... to be discontinued ... on such terms as to costs, the bringing of a subsequent action or otherwise as it thinks just". [11] The default effect of a discontinuance is supplied by Order 21 rule 4: "subject to any terms imposed by the Court in granting leave under rule 3", the fact that a party has discontinued an action "shall not be a defence to a subsequent action for the same, or substantially the same, cause of action". Liberty to bring a fresh action is therefore the ordinary incident of a discontinuance and requires no special order; it is displaced only by the Court's express imposition of a contrary term under rule 3. Order 21 rule 5 provides a connected safeguard: where a discontinuing party who is liable for costs subsequently brings an action for the same or substantially the same cause, the Court may stay that action until those costs are paid. [12] As to costs, the discretion is conferred both by Order 21 rule 3(1) (terms "as to costs") and by Order 59. Order 59 rule 1(2) vests the costs of proceedings in the discretion of the Court, with full power to determine by whom and to what extent they are to be paid, and Order 59 rule 3(2) directs that costs ordinarily follow the event unless some other order is warranted. E. ANALYSIS AND DETERMINATION

(A) Whether Leave To Discontinue Is Required [13] These proceedings were begun by Originating Summons, not by writ; Order 21 rule 2(1) therefore does not apply. The Respondent has not consented to the discontinuance; Order 21 rule 2(4) is therefore also unavailable. It follows that the discontinuance required the leave of the Court under Order 21 rule 3(1), and that an application for that leave is, strictly, to be made by notice of application: Order 21 rule 3(2). The filing of a notice in the form of a discontinuance as of right was therefore irregular. [14] A notice of discontinuance taken without the requisite leave is liable to be struck out, and abuse of process has been recognised as a ground for doing so. Striking out would, however, serve no purpose here. The matter is before the Court, the Respondent has stated its position fully in encl. 13, and the discontinuance is opposed only as to its terms. In substance the Court is seised of an application for leave to discontinue, and it is appropriate to treat it as such and to determine the terms upon which leave should be granted.

(B) Whether Leave Should Be Granted With Liberty To File Afresh [15] The discretion conferred by Order 21 rule 3(1) is wide but principled. Its exercise was authoritatively considered by the Court of Appeal in Majlis Peguam Malaysia & Ors v Raja Segaran S Krishnan [2002] 3 CLJ 370 (CA), upon the materially identical predecessor provision in the Rules of the High Court 1980. Gopal Sri Ram JCA, delivering the judgment of the Court, identified three guiding considerations: first, that where the defendant is dominus litis master of the suit the general rule is to refuse leave to discontinue (Overseas Union Finance Ltd v Lim Joo Chong [1971] 2 MLJ 124); secondly, that where the action has reached a very advanced stage, care should be taken not to permit discontinuance, what constitutes an advanced stage depending upon the facts of each case (Fox v Star Newspaper Co [1898] 1 QB 636 (CA), affirmed in Fox v Star Newspaper Co [1900] AC 19 (HL)); and thirdly, that the Court should bear in mind any interim or interlocutory advantage the plaintiff may have gained between the issue of process and the point at which discontinuance is sought (O'Neal v Mann [2000] FCA 1680). The Court of Appeal pointedly declined to accept that, as a general rule, a plaintiff is to be permitted to discontinue the action he has initiated; the discretion is genuinely open and turns on the facts, within those outer parameters. [16] Those guidelines govern the anterior question whether discontinuance should be permitted at all, and on what terms. They do not translate into a presumption against liberty to file afresh once discontinuance is allowed. That consequence is governed by Order 21 rule 4, under which liberty to sue again is the ordinary incident unless the Court expressly imposes a contrary term. The question under this issue is therefore not whether to confer liberty to file afresh, but whether the considerations in Raja Segaran warrant taking it away. [17] The stage of these proceedings must be confronted candidly, for it tells in the Respondent's favour. This is no application taken at the threshold. The affidavits are closed on both sides; the Respondent has filed an affidavit in reply deposed by the Registrar-General himself; it has filed full written submissions and two bundles of authorities; and the Applicants, who filed no submissions, sought to discontinue only after the Respondent's case had been fully deployed. The matter was, in substance, ready for decision the advanced stage against which Fox v Star Newspaper Co and Raja Segaran counsel caution. [18] That factor must, however, be measured against the facts of Raja Segaran itself, from which the present case is materially distinguishable. There, the trial of a preliminary issue had been fully heard, with oral evidence and the cross-examination of a deponent; judgment had been reserved; and the trial judge had in terms stated that he had already reached his decision and needed only to deliver it. The plaintiff had, moreover, obtained an interim injunction that halted the very meeting in dispute, and the defendants had been put to great expense and to adverse costs orders at every stage in resisting it. To permit discontinuance in those circumstances would have deprived the defendants of a judgment already reached. Here, by contrast, there has been no hearing, no oral evidence, no reserved judgment and no decision; neither party has gained any interim or interlocutory advantage; and the Respondent has filed no counterclaim. The interest in pressing to judgment that proved decisive in Raja Segaran is, on these facts, materially weaker. [19] Nor is the Respondent dominus litis in the sense the doctrine contemplates. It seeks no affirmative relief; the most it could obtain from a determination is the dismissal of an application brought against it. The rule protects a defendant who has acquired, through the litigation, a positive interest in its determination. The Respondent has acquired no such interest beyond the expense to which it has been put, and expense is answered by costs. [20] Decisively, the deficiency on which the Respondent's resistance ultimately rests is evidentiary and is capable of cure. Reduced to its essentials, the Respondent's position is that paternity has not been established by the kind of evidence a DNA report or by the kind of order a declaration of paternity that the governing authority requires. That this is the true gravamen is confirmed by the Respondent's own principal authority, Leow Fook Keong (L) v Pendaftar Besar Bagi Kelahiran dan Kematian Malaysia, Jabatan Pendaftaran Negara, Malaysia & Anor [2022] 1 CLJ 23 (FC), in which the Federal Court held that the object and scheme of Act 299, and in particular section 27 read with section 28, compel the Registrar-General to correct and update the register to reflect a father's particulars where paternity has been established by undisputed DNA results and a declaratory order of the court, the protections afforded to the mother and the putative father by sections 13 and 13A being unaffected. The relief the Applicants seek is therefore not conceptually unavailable; it is unavailable on the present evidence. That is the paradigm case for liberty to file afresh, for a properly constituted action founded upon a declaration of paternity supported by cogent evidence would not be the same, or substantially the same, in its evidential foundation as the present Summons. [21] To this must be added the subject-matter: the paternity and identity of a minor. To impose a term permanently foreclosing any future application would dispose of the question of the child's paternity for all time without it ever being examined on adequate evidence a grave and disproportionate consequence to attach to a procedural withdrawal, the more so where the governing law positively contemplates that the register may be corrected once paternity is judicially established. [22] The Respondent's alternative course that the Notice be set aside and the Originating Summons heard to judgment, as occurred in Raja Segaran is not apt here. In Raja Segaran a decision had already been reached and merely awaited delivery; restoring the action vindicated a concrete and accrued entitlement Here no decision has been reached, and to compel a hearing would, on the Respondent's own case, yield only a dismissal that would lock an admittedly incomplete record a birth entry recording no father against future correction, and would bar the registration of the child's paternity contrary to the very scheme the Federal Court identified in Leow Fook Keong. The Respondent is a public registrar whose statutory function is facilitative and directed to the accuracy of the register; its legitimate interest is not served by a merits dismissal that entrenches an incomplete record, and is sufficiently protected by costs and by Order 21 rule 5. [23] The contrary argument that the Applicants, having seen the Respondent's evidence and submissions, are retreating only to repair their case and return for a second attempt has force but does not prevail. The discontinuance is not an attempt to evade an adverse ruling on a point that would be identical on refiling; it reflects that the application, as presently evidenced, cannot succeed and that a different and better-founded application may be required. The Respondent's interest in not being vexed twice is real but is adequately protected short of permanent foreclosure: by an order for the costs thrown away, by Order 21 rule 5 (under which any fresh action may be stayed until those costs are paid), and by the Court's residual control over re-litigation that is genuinely abusive. I make no finding upon the merits of the substantive application, whether as presently framed or as it might be reconstituted; I hold only that there is no sufficient basis to withdraw the ordinary liberty preserved by Order 21 rule 4.

(F) COSTS [24] The terms as to costs stand differently. A party who discontinues ordinarily bears the costs occasioned by the proceedings it has chosen to abandon, for it has brought its opponent to court and put it to expense before withdrawing. The point is illustrated by Raja Segaran itself: although the Court of Appeal there set aside the discontinuance and restored the action, it nonetheless applied the ordinary costs rule and ordered the party who had sought to discontinue to pay the opposing party's costs both in the appellate court and below, observing that it was bound by principle to exercise the costs discretion in the ordinary way even though the suggestion to discontinue had originated with the judge. That is the orthodox application of the discretion under Order 21 rule 3(1) and Order 59 rule 3(2), and there is no feature of the present case displacing it. The discontinuance was the Applicants' own decision; it was not prompted by any conduct of the Respondent or by any supervening event for which the Respondent is answerable. [25] The advanced stage that did not, by itself, justify barring a fresh action is squarely material to costs. By the time of the discontinuance the Respondent had been put to the expense of an affidavit in reply deposed by the Registrar-General, of full written submissions, and of two bundles of authorities, while the Applicants filed no submissions at all. The Respondent alone bore the burden of preparing the matter for hearing, only for it to be withdrawn on the eve of disposal. In those circumstances the Applicants' proposal that there be no order as to costs cannot be accepted; the just order is that the Applicants pay the Respondent's costs of and occasioned by the discontinued proceedings, which I assess in the fixed sum of RM1,500; and, consistently with Order 21 rule 5, the liberty to file afresh is subject to the qualification that any fresh action for the same or substantially the same cause may be stayed until those costs are paid. G. CONCLUSION [26] The discontinuance of an action begun by Originating Summons, the respondent not consenting, requires the leave of the Court under Order 21 rule 3(1), and leave ought to be granted. Although the proceedings had reached an advanced stage, this case is distinguishable from Raja Segaran: no decision has been reached, no interlocutory advantage has accrued, and the Respondent is not dominus litis. The deficiency is evidentiary and curable, the relief sought is available in law once paternity is judicially established, and the interest of a minor weighs against foreclosing the question unexamined; leave to discontinue is accordingly granted with liberty to file afresh. The advanced stage is, however, decisive on costs: the Applicants, having put the Respondent to the expense of an affidavit in reply, written submissions and two bundles of authorities before withdrawing, must bear the Respondent's costs of the discontinued proceedings, the benefit of which is secured by Order 21 rule 5. H. ORDERS OF THE COURT [27] The Court orders as follows:

(a) leave is granted to the Applicants to discontinue the whole of the proceedings under Originating Summons No. MA- 24NCvC-553-12/2025, pursuant to Order 21 rule 3(1) of the Rules of Court 2012;

(b) the discontinuance is with liberty to the Applicants to file a fresh action for the same, or substantially the same, relief;

(c) the Applicants shall pay the Respondent's costs of and occasioned by the discontinued proceedings, fixed in the sum of RM1,500; and

(d) pursuant to Order 21 rule 5 of the Rules of Court 2012, any fresh action brought by the Applicants for the same or substantially the same cause may be stayed until the costs ordered in paragraph (c) have been paid. Dated 18 June 2026 (YA Dato' Sri Raja Segaran A/L S. Krishnan) (Judicial Commisioner) High Court Of Malaya Malacca High Court (MELAKA) Lawyer For Applicant Encik Daniel a/l Savarimuthu Tetuan Daniel & Associates Peguamcara dan Peguambela No.166-F, JIn Kota Laksamana 14, Taman Kota Laksamana, 75200 Melaka. Lawyer For Respondent Puan Izzatul Nawwarah binti Idrus Pejabat Penasihat Undang-Undang Negeri Melaka Aras 1, Blok Laksamana, Seri Negeri, Ayer Keroh, 75450 Melaka.