1. ) Sundararaju A/l Thandava Moorthi v Murugan A/l Krishnan (AA-12A-5-03/2023)

SUNDARARAJU A/L THANDAVA MOORTHI [NO. K/P: 470116-08-5031] 15

LETCHEMY A/P THAVASI [NRIC NO: 510510-08-5236] …APPELLANTS AND 20 MURUGAN A/L KRISHNAN [NO. K/P: 510317-08-5285] …RESPONDENT IN SESSIONS COURT IN TELUK INTAN IN THE STATE OF PERAK DARUL RIDZUAN 25 SUIT NO: AC-B52NCC-2-10/2020 MURUGAN A/L KRISHNAN [NO. K/P: 510317-08-5285] …PLAINTIFF 30 1. SUNDARARAJU A/L THANDAVA MOORTHI [NO. K/P: 470116-08-5031]

LETCHEMY A/P THAVASI [NRIC NO: 510510-08-5236] …DEFENDANTS 35 GROUNDS OF JUDGMENT Introduction [1]. This is classic case of a trial judge who, in the midst of a 40 lengthy and complex trial, made a hasty decision without properly verifying the key facts in the proceedings. This resulted in an improper use of discretion, to enter a judgment in default. Had the judge been fully informed of the material facts before exercising his discretion, it is likely that he would 45 not have reached the same decision. Therefore, it is incumbent upon this court to intervene on appeal to rectify the oversight by the trial judge, which would otherwise cause the litigant to suffer the consequences. Background facts 50 [2]. There are four civil appeals involving the Appellants, Sundararaju A/L Thandava Moorthi and Letchemy A/P Thavasi, against the Respondent, Murugan A/L Krishnan. The appeals are registered as Civil Appeals No.: AA-12A-19- 55 11/2023, AA-12BNCC-3-08/2023, AA-12ANCC-2-05/2023, and AA-12A-5-03/2023. The parties have agreed that the decision in the main appeal, i.e., Civil Appeal No.: AA-12A- 19-11/2023 ("main appeal"), shall bind the other three appeals, meaning the party who succeeds in the main appeal 60 is taken to have succeeded in the other appeals as well. This agreement between the parties was communicated to the court via a letter dated 2nd May 2024 from the Appellants’ solicitors and confirmed by the Respondent’s solicitors. [3]. The ‘main appeal’ was filed on 15th November 2023 against 65 the dismissal of Enclosure 100 with costs of RM2000.00. This enclosure 100 is an application pursuant to Order 42 Rule 13 of the Rules of Court 2012 before the Sessions Court, Teluk Intan, to set aside the default judgment given by the Sessions Court on 2nd August 2023. 70 [4]. As the parties have agreed that this court is only to dispose of the main appeal, I do not see the necessity to address the background facts leading to the other appeals by the Appellants. Therefore, in these grounds of judgment, I will proceed to set out the facts relating to the main appeal. 75 [5]. In October 2020, the Respondent filed a civil action under Suit No: AC-B52NCC-2-10/2020 at the Sessions Court in Teluk Intan against the Appellants for the recovery of a friendly loan. The Respondent had completed his examination-in-chief, was cross-examined by the Appellants’ 80 counsel, and underwent re-examination by his own counsel. After the Respondent closed his case, the court scheduled the continuation of the trial for 2nd August 2023. However, on the morning of 2nd August 2023, the Appellants’ solicitors sent a letter requesting an adjournment due to the illness of 85 Mr. Gurbachan Singh, who is the counsel for the Appellants. A lawyer named Mr. Kumarasen A/L Shanmugam mentioned on behalf of the Appellants to inform the court of the counsel’s unavailability to attend the trial due to health reasons. It is noted that the Appellants themselves did not 90 attend the hearing on the said date. The learned Sessions Court Judge (“SCJ”), not favouring the reasons for the adjournment, entered a default judgment on 2nd August 2023 in favour of the plaintiff under Order 35 Rule 1(2) of the Rules of Court 2012 and dismissed the Appellants’ 95 counterclaim. The Appellants immediately filed an appeal to the High Court on 10th August 2023 under Civil No: AA- 12BNCC-03-08/2023. Also, in an abundance of caution, the Appellants thereafter filed an application (Enclosure 100) on 25th August 2023, pursuant to Order 42 Rule 13 of the 100 Rules of Court 2012, to set aside the judgment in default. This application was dismissed with costs of RM2000.00 by the Sessions Court on 31st October 2023, leading the Appellants to file an appeal to this court. This is the main appeal which I have heard and disposed of on 28th May 105 2024, and the Respondent, not being satisfied, has appealed to the Court of Appeal. Issues [6]. The primary issues for determination are: a) whether the refusal to set aside the judgment in default 110 was a proper exercise of discretion; and b) whether using the wrong provision in the application renders the application procedurally improper and subject to dismissal. Summary of the Sessions Court grounds on setting aside [7]. The SCJ noted that the Defendants applied for a fourth 115 adjournment on 2nd August 2023 due to their solicitor's medical condition, raising suspicions as this was the second time health issues were cited for an adjournment. The Plaintiff’s counsel argued that the Defendants' solicitors' firm had other legal counsels who could have stood in; therefore, 120 the Plaintiff requested the court to invoke Order 35 Rule 1(2) to enter judgment for the Plaintiff. Although the SCJ acknowledged that it is common for anyone to fall ill, he questioned the repeated use of this reason and held the view that the Defendants should have arranged alternative 125 representation. [8]. The SCJ expressed concern because he had rescheduled other cases to give priority to this trial; therefore, granting an adjournment would disrupt the court's schedule and hinder 130 the administration of justice. The SCJ pointed out that granting an adjournment without proper cause would delay justice and impede the need for closure of this long-pending case. Submissions of the Appellants 135 [9]. The Appellants submit that they sought the assistance of Mr. Kumaresan A/L Shanmugam to mention the case on 2nd August 2023 and to request for an adjournment. However, surprisingly, the SCJ, without valid reason or justifiable 140 cause, rejected the application for an adjournment. This exercise of discretion to reject the adjournment by the SCJ is particularly notable given that, on 31st July 2023, this very court (High Court of Ipoh No. 3) had granted an adjournment for Criminal Appeal No.: AA-42(ORS)-1-01/2023 on the 145 grounds that the Appellants' counsel, Encik Gurbachan Singh, had fallen ill. Again, on 1st August 2023, this court had also granted an adjournment for Criminal Appeal No.: AA-41(ORS)(A)-1-11/2022 for the same reason, i.e., counsel Encik Gurbachan Singh had fallen ill. Therefore, the grounds 150 for adjournment had withstood the test of reasonableness, which the SCJ should have accepted and allowed the adjournment. [10]. The Appellants further submitted that on 2nd August 2023, the Second Appellant had fallen ill, and the First Appellant had 155 taken the Second Appellant to see a doctor at Kumar Clinic in Rasa, Selangor. The doctor provided treatment and advised the Second Appellant to rest and avoid any travel. Consequently, although the Defendants’ solicitor had informed and reminded them to attend court on 2nd August 160 2023, both Defendants were unable to be present. [11]. In response to the Respondent's challenge regarding the application being made under the wrong provision, the Appellants submit that at the time the application was made, the Appellants' counsel was not informed under which order 165 the SCJ had made its decision on 2nd August 2023. Furthermore, the Plaintiff's counsel did not file any Draft Order concerning the decision on 2nd August 2023. As a result, the Appellants' counsel assumed that the decision of the SCJ was made under Order 42 of the Rules of Court 170 2012. Submissions of the Respondent [12]. Apart from the challenges raised by the Respondent, which I have discussed above, the Respondent also argues on the grounds of duplicity of proceedings, as the Appellants has 175 filed two appeals concerning the same decision. The initial appeal, Civil Appeal No: AA-12BNCC-3-08/2023, was filed on 10th August 2023 in the Ipoh High Court, and a subsequent appeal, Civil Appeal No: AA-12A-19-11/2023, was filed following the dismissal of their application under Order 42 180 Rule 13 of the Rules of Court 2012 by the Teluk Intan Sessions Court. This duplicity prejudices the rights of the Respondent/Plaintiff. [13]. The Respondent refers to several cases, such as Wira Swire Sdn Bhd v. Ketua Pengarah Hasil Dalam Negeri [2019] 1 185 LNS 1026; [2018] MLRHU 1975 and Ooi Chieng Sim v. Ketua Pengarah Hasil Dalam Negeri (Encl 1) [2022] MLRHU 39; [2022] 1 LNS 556, to support the argument that concurrent filings on the same issue constitute an abuse of the court process. Additionally, the Respondent cited the 190 case of Nazaruddin Mohd Shariff @ Masari & Anor V. Roslan Maulud & Anor [2020] CLJU 1235; [2020] MLJU 1362; [2020] MLRHU 1096, where it was held that duplicity or multiplicity of proceedings should be struck out on the grounds that they are frivolous, vexatious, and an abuse of 195 process. [14]. Given the consistent judicial stance against the duplicity of proceedings, the Respondent contends that both appeals by the Appellants should be dismissed. Finding of the Court 200 Exercise of discretion to adjourn [15]. The pertinent facts of the case are that on 26th June 2023, the Sessions Court in Teluk Intan conducted an e-review session to reschedule the trial dates. The Sessions Court was apparently prompted by a directive from the Chief Judge, 205 which mandated that all pre-2021 cases be heard and disposed of within three months, setting a deadline for September 2023. During this session, both parties agreed to reschedule the trial to 2nd and 3rd August 2023. However, on 2nd August 2023, the Appellants' counsel, Mr. Gurbachan 210 Singh, was unable to attend the trial due to illness and was on medical leave from 1st to 3rd August 2023. (Note: the point here is that the adjournment sought on 2nd August 2023 was not a further adjournment, i.e., one following another.) It is undisputed that Mr. Gurbachan had sought the 215 assistance of a lawyer, Encik Kumaresan A/L Shanmugam, to attend court on 2nd August 2023 and request an adjournment on the grounds that the Appellant’s counsel was ill. Despite this request, the court proceeded to enter a judgment under Order 35 Rule 1(2) of the Rules of Court 220 2012 and dismissed the counterclaims by the Appellants. The SCJ was primarily suspicious of the adjournment because the same reason for an adjournment had been sought before. The SCJ remarked: “I accept that people do get sick from time to time, but it 225 raises suspicion when the same reason was used for the second time when the case is set down for trial. At least, the Defendants’ counsel should assign another counsel to stand in to conduct the trial, or informs the Defendants themselves to attend the proceeding, so that trial can be 230 proceeded without further adjournment.” [16]. I take the view that the SCJ took exception to the Appellants requesting an adjournment of the trial for the second time on the same grounds. It is perceivable from the SCJ's 235 reasoning, though it was not explicitly mentioned in the grounds, that the SCJ found it unusual that the request for an adjournment was made on the very day of the trial, despite the fact that the counsel, Mr. Gurbachan Singh, had been unwell for at least a day prior. The SCJ may have perceived 240 this as a last-minute tactic to delay the proceedings rather than a genuine inability to attend. Ultimately, the SCJ was unhappy because this was a second attempt. [17]. I am of the view that the SCJ was wrong in assuming that this was the second time the same reason was used to 245 adjourn the case set down for trial. The Appellants had pointed out that the first time an adjournment was sought was because their counsel, Mr. Gurbachan Singh, was admitted for a COVID-19 infection, where there was no reason for suspicion. In this respect, I am constrained to believe that 250 the learned SCJ may not have realized the basis of the first adjournment. Had he known this, or had the counsel present before him brought it to his attention, the SCJ would not have made such an assumption, which led to his exercise of discretion to refuse the adjournment. 255 [18]. Another pertinent point to observe from the facts of Lee Ah Tee V Ong Tiow Pheng & Ors [1984] 1 CLJ Rep 187; [1984] 1 MLJ 107, is whether the exercise of discretion is for a refusal of an initial adjournment or a refusal of further adjournments (one after another). In contrast to the present 260 case, the appellant in Lee Ah Tee’s case sought multiple adjournments (one after another) during the proceedings. After several continuations, the appellant's counsel applied for adjournments on 7.4.1982, 7.6.1982 and 24.6.1982. The court granted the requests made on 7.4.1982 and 7.6.1982 265 but refused the request made on 24.6.1982. The court noted that the request was made at the last minute, similar to previous adjournments, and consequently denied the adjournment application on 24.6.1982. In the present case, it is not a further adjournment; rather, it was due to the 270 counsel falling ill. It must be noted that there is no evidence or affidavit by the Respondent suggesting that either the counsel for the Appellants or the Appellants themselves are not telling the truth about falling ill and unable to attend court for the conduct of the trial. In the circumstances, I am of the 275 view that an adjournment was warranted. [19]. Returning to the point that this very court had allowed adjournments for the same counsel, Mr. Gurbachan Singh, in Criminal Appeal No.: AA-42(ORS)-1-01/2023 on the grounds that he had fallen ill, and again on 1st August 2023, for 280 Criminal Appeal No.: AA-41(ORS)(A)-1-11/2022 on the same grounds, I am not inclined to hold that the SCJ should have exercised discretion as this court did to allow an adjournment. Every judge exercises their discretion based on the facts of their respective cases and how they perceive 285 them. However, as I have mentioned earlier, had the SCJ made a proper inquiry about the previous adjournment and found it to be valid, the SCJ would probably not have rejected the adjournment on 2nd August 2023. It is for this reason that I am inclined to interfere with the decision of the SCJ. 290 [20]. At this juncture, I refer to the case of Lee Ah Tee v Ong Tiow Pheng & Ors (supra) cited above, where the Federal Court referred to Dick v Pillar [1943] 1 All ER 627 to adopt the principles for determining the discretion in allowing or refusing an adjournment: 295 “(1) Whether or not a party should be granted an adjournment is wholly at the discretion of the Judge. He would exercise the discretion solely upon his view of the facts.

Prima facie this discretion is unfettered.

The question to ask in any particular case is whether on the 300 facts there are adequate or sufficient reasons to refuse the adjournment.

Although an appellate court has power to interfere with the Judge's decision in regard to the granting of an adjournment, it would refrain from doing so unless it appears that such discretion 305 has been exercised in a way which tended to show that all necessary matters were not taken into consideration or the decision was otherwise arbitrarily made.

An appellate court ought to be very slow to interfere with the exercise of the discretion. But if it appears that the result of the 310 order made below would be to defeat the rights of the parties altogether or that there would be an injustice to one or the other of the parties then the appellate court has power and indeed a duty to review the exercise of the discretion” 315 [21]. Applying these principles, the adjournment in the present case should have been allowed because the judge’s discretion must be exercised based on a thorough review of all the facts. Here, the SCJ failed to fully consider important factors, such as the Appellants’ genuine reasons for seeking 320 the adjournment. This oversight suggests that discretion was exercised arbitrarily, leading to a decision that could result in injustice. Therefore, it warrants this court to interfere and make it right. 325 Wrong Provision used [22]. The Respondent contends that the Appellants’ application is based on a wrong provision. It should be filed pursuant to Order 35 Rule 1(2) of Rules of Court 2012 within 14 days after the judgment was entered, instead it was filed pursuant 330 to Order 42 Rule 13 of Rules of Court 2012. Append below both provisions:

“Judgment given in absence of party may be set aside (O. 35, r. 2)

Any judgment or order obtained where one party does not appear at the trial may be set aside by the Court, on the application of that 335 party, on such terms as it thinks just.

An application under this rule shall be made within fourteen days after the date of the judgment or order sought to be set aside without prejudice, however, to the power of the Court to extend the period.

In considering an application made under this rule, the Court shall have regard to the following matters:

the interest of justice;

whether the absence of the applicant or counsel was deliberate, or due to an accident or mistake;

the prospects of success of the applicant at trial;

whether there is any delay in making the application;

whether the conduct of the applicant has caused prejudice to the other party which cannot be compensated by an order of costs.” 350

Setting aside or varying judgment and orders (O. 42, r. 13) Save as otherwise provided in these Rules, where provisions are made in these Rules for the setting aside or varying of any order or judgment, a party intending to set aside or to vary such order or 355 judgment shall make an application to the Court and serve it on the party who has obtained the order or judgment within thirty days after the receipt of the order or judgment by him. [23]. In this respect, the Respondent cites cases such as Chuah 360 Tim Lan v. RHB Bank Bhd & Anor [2008] 6 CLJ 500; [2008] 6 MLJ 793, Tanasegaran Naguru & Ors v. Suresh Kumar Rajadurai [2021] 1 LNS 1574; [2021] MLRHU 1395, Lim Kwee Fen & Anor v. Kt Home Mart Sdn Bhd [2022] 9 CLJ 943; [2022] MLRHU 1551, and Srijang Indah Sdn Bhd v. 365 Royel Departmental Stores Sdn Bhd [2023] 1 LNS 545; [2023] MLJU 606, to support his contention that strict compliance with procedural rules is mandatory. These cases demonstrate that applications to set aside judgments for non-attendance at trial must be filed under the correct provision, 370 specifically Order 35 Rule 2, to avoid being deemed procedurally improper and dismissed. [24]. The Appellants contend that they were not aware that the default judgment was made pursuant to Order 35 Rule 1(2) of the Rules of Court 2012. This court inquired about this 375 during oral submissions on 28th May 2024, and reference was made to the affidavit, wherein it is stated that the Respondent did not inform or forward a draft order for approval for the default judgment obtained. There was nothing untoward about the Appellants not being aware of this, nor about the 380 Respondent not informing the Appellants that the judgment in default was entered under Order 35 Rule 1(2), or that the Respondent did not forward the draft order for the judgment in default to the Appellants. It is a genuine case of both parties having overlooked these details. Regardless, the 385 litigant should not suffer the consequences due to counsel’s oversight. For this, I refer to the case of Lee Hock Ning v Government Of Malaysia [1972] 2 MLJ 12, where the Federal Court responded to an error during the trial in which both the counsel and the trial judge incorrectly interpreted a 390 particular statutory provision. This misinterpretation led to an incorrect admission by the plaintiff's counsel based on a mistaken view of the law. The Federal Court, referring to Lord Denning's approach in Doyle v Olby Ltd [1969] 2 All ER 119 121, expressed that a client should not suffer due to their 395 counsel's mistake if it can be rectified. The court's intent was to correct mistakes to avoid injustice, indicating that such mistakes, if identified, can be addressed to ensure a fair outcome without causing harm to the other party. This is what His Lordship Ong CJ (Malaya) stated: 400 “The above decisions clearly show that in the view taken by counsel and the trial judge of section 2 they were all in error. Such error, of course, can be rectified, notwithstanding the admission of counsel for the plaintiff upon a mistaken view of the law. As Lord Denning M.R. said in Doyle v Olby Ltd [1969] 2 All ER 119 121: 405 “We never allow a client to suffer for the mistake of his counsel if we can possibly help it. We will always seek to rectify it as far as we can. We will correct it whenever we are able to do so without injustice to the other side. Sometimes the error has seriously 410 affected the course of the evidence, in which case we can best order a new trial. But there is nothing of that kind here.” [25]. This court is also mindful that it should look towards dispensing justice over technical non-compliance, focusing on the purpose of the application, which is to challenge the 415 default judgment due to the Appellants’ absence. The error in citing Order 42 Rule 13 instead of Order 35 Rule 2 is a harmless error that does not affect the merits of the case. Under Order 1A of the Rules of Court 2012, the court must give importance to the overriding interest of justice rather 420 than rigid adherence to procedural technicalities. Here are some cases where the Malaysian courts have taken such course to ensuring that justice prevails over procedural technicalities: a) In Amirthanayaki Kumarasamy v Lembaga 425 Kelayakan Profesion Undang-Undang Malaysia [2010] 1 MLJ 656 (CA) ; [2010] 6 CLJ 593; [2010] AMEJ 0355; [2010] 11 MLRH 544, the appellant's application was dismissed solely because it was not initiated using App A Form 111A, as required by RHC 430 Order 53 Rule 2. The Court of Appeal held that this procedural mistake should not obstruct the administration of justice, particularly when no prejudice was caused to any party, including the court. Striking out the application without considering its merits was 435 deemed unfair to the appellant, who sought justice and a fair hearing. This decision aligns with RHC Order 1A, which emphasizes that courts should prioritize justice over procedural technicalities. b) In the case of Chai Say Fah v Hartawan Aman Sdn 440 Bhd [2015] 6 MLJ 277 (CA); [2015] 1 LNS 399, the court held that litigation should be resolved based on the merits of the case rather than strict adherence to procedural rules, unless it is shown that non-compliance was deliberate or denied the other party a 445 fair chance to defend themselves. c) In the Court of Appeal decision in Tong Kim Soo v Tirai Prospektif Sdn Bhd [2019] MLJU 946 (CA); [2020] 3 CLJ 353, it was held that, considering RC Orders 1A and 2, courts can no longer strike out a case for non- 450 compliance with procedural rules without allowing the litigant an opportunity to correct the error or the court to condone the irregularity. The Court of Appeal further stated that striking out should only occur in extremely rare situations where non-compliance cannot be 455 condoned, particularly when the respondent can demonstrate both prejudice and that the breach cannot be adequately addressed by awarding costs. d) In High Century Sdn Bhd v Liew Foot and Sons Construction Sdn Bhd [2014] 11 MLJ 344; [2014] 1 460 LNS 1086, Mary Lim J emphasized that the provisions of Order 1A should serve as tools to aid justice, not dominate it. Her ladyship puts it in this way “The provisions of O 1A and of the ROC were to be ‘handmaidens’ and not ‘mistresses’; the interests of 465 justice should always be at the forefront and should prevail”. There in that case, the court held that a delay in filing an affidavit in reply the objection should not stand in the way of justice, justice must always take precedence. 470 [26]. In our present case, the trial had proceeded up to the stage where the Respondent/Plaintiff’s case was completed, leaving only the Appellants/Defendants’ case. Given that the trial was already midway, it was not an appropriate exercise 475 of judicial discretion to enter a judgment in default due to the absence of the Appellants, especially in circumstances where the absence was justified on both medical and technical grounds. [27]. This court must give importance to the principles of justice 480 over strict procedural adherence. The Appellants’ error in citing Order 42 Rule 13 instead of Order 35 Rule 2 is a procedural misstep that does not detract from the substantive issues of the case. Further, the misstep was due to both parties’ oversight. The application of the Rules of Court 485 2012 and the exercise of discretion in an application for an adjournment must primarily be to achieve justice, not to impose rigid barriers that could lead to unjust outcomes. Counsel's oversight, should not unjustly prejudice a litigant, to this end the courts have consistently shown a commitment 490 to rectifying such errors to ensure a fair outcome. In the present case, considering that the trial has progressed to an advanced stage and the Appellants’ absence was due to legitimate medical reasons, it would be inappropriate to allow procedural technicalities to overshadow the administration of 495 justice. The application should be considered on its merits, with the focus on ensuring justice rather than adhering to rigid procedural formalities. Conclusion [28]. In conclusion, for the reasons mentioned above, the 500 judgment in default entered by the Sessions Court, Teluk Intan, on 2nd August 2023 is set aside with costs of RM4,000.00. Accordingly, since the parties agreed for the decision in this appeal to bind all the other appeals, it follows that the appeals in AA-12A-5-03/2023, AA-12ANCC-2- 505 05/2023, and AA-12BNCC-3-08/2023 are also allowed with costs of RM2,000.00 for each appeal. 510 Date : 30 August 2024 Moses Susayan 515 MOSES SUSAYAN Judicial Commissioner High Court in Malaya 520 at Ipoh, Perak 525 Counsel : 530 For the Appellants : Gurbachan Singh Advocates and Solicitors [Messrs Sandeep Gobindeep & Co.] Ipoh, Perak 535 For the Respondent : Siti Nur Fareha binti Ab Aziz Advocates and Solicitor [Messrs Nazrin Nasir T. Anand & Co] Tanjung Malim, Perak 540 (Notice: This Grounds of Decision is subject to official editorial revision) 545 Headnotes Whether the Sessions Court erred in exercising its discretion by denying the adjournment request due to the appellants' counsel's illness ─ Whether the appellants' absence was justified on medical and technical 550 grounds. ─ Whether filing under the wrong provision (Order 42 Rule 13 instead of Order 35 Rule 2) constitutes a fatal procedural error. ─ Whether the principles of justice should override procedural technicalities.