Banuri Bin Simok v Chin Mun Fun (WA-24NCvC-5126-10/2025)

This is an application by way of an originating summons dated 17 October 2025, filed by the applicant, Banuri bin Simok. The relief sought is twofold. First, the applicant seeks an extension of time and leave to file a notice of appeal out of time against the decision of the Magistrates' Court delivered on 12 September 2025. Secondly, he seeks a stay of execution of the Introduction judgment dated 17 November 2023 pending the disposal of this application and, if leave be granted, the intended appeal.

The respondents resist this application on the grounds that the originating summons is fundamentally defective and, in any event, devoid of merit. Having considered the affidavits exchanged, the written submissions of counsel, and the authorities cited in the respective bundles, I now deliver my decision.

The genesis of this dispute lies in Suit No. WA-A72NCvC-699- 02/2019 ("Suit 699"), commenced in the Magistrates' Court of Kuala Lumpur. In that action, Tenaga Nasional Berhad ("TNB") was the plaintiff, and the late Predeep A/L E.M Kunchi Raman, represented in these proceedings by the respondent, Chin Mun Fan was the defendant.

On 2 October 2019, upon the application of the defendant, the present applicant was joined to Suit 699 as a third party. He was thus impleaded as the third party second defendant. The applicant now asserts that the order bringing him into the proceedings was obtained ex parte or in circumstances where he was not properly served, and that this ultimately culminated in a default judgment against him. Be that as it may, the court record demonstrates that the applicant was formally made a party to the action.

The trial of Suit 699 proceeded on 2 and 3 February 2023. The applicant was absent during the trial. On 17 November 2023, the learned Magistrate entered a judgment in default of appearance against the applicant (the "Judgment"). The material terms of that Judgment were as follows:

The applicant was ordered to indemnify the respondent fully in respect of the sum awarded to TNB.

(ii) The applicant was ordered to pay the respondent the sum of RM70,666.20.

(iii) The applicant was further ordered to pay interest on that sum at the rate of 5% per annum from the date of full settlement between the respondent and TNB until the date of full satisfaction.

The Judgment was duly served upon the applicant on 19 December 2023. Notwithstanding service, the applicant took no immediate action to set aside the Judgment or to seek a stay of its execution.

Consequently, execution proceedings were initiated. On 25 February 2025, an order for sale was granted by the High Court to sell the applicant's immovable property by way of public auction to satisfy the judgment debt. It is noteworthy that the applicant was legally represented during the execution proceedings, yet no substantive application was filed at that stage to resist or suspend the order for sale.

Thereafter, the applicant embarked upon a series of applications in the Magistrates' Court, none of which yielded success:

On 13 September 2024, he filed an application to set aside the order for third-party directions dated 6 February 2020 ("the 1st Application"). This was dismissed on 10 December 2024. An appeal was lodge but subsequently withdrawn on 26 February 2025.

(ii) On 26 March 2025, he filed further application to set aside the order granting leave to issue the third-party notice dated 3 October 2019 ("the 2nd Application"). This was dismissed on 29 May 2025. Again, an appeal was filed but withdrawn on 22 July 2025.

(iii) On 10 July 2025, the applicant filed a third application to set aside the Judgment dated 17 November 2023 （'the $ 3 ^{rd} $ Application).

The 3rd Application was heard and dismissed by the learned Magistrates' Court on 12 September 2025. In her brief grounds, the learned Magistrate held: "Setelah meneliti notis permohonan, affidavit-afidavit, dan hujahan, alasan dan tempoh kelewatan untuk memfailkan permohonan adalah tidak dijelaskan dengan kukuh dan tidak munasabah dan hanya difailkan selepas prosiding pelaksanaan terhadap Pihak Ketiga dimulakan sedangkan penghakiman telah disampaikan dan diakui terima oleh Pihak ketiga Ke-2 sejak 19.12.2023 dan tiada permohonan untuk pelanjutan masa dimohon. Berdasarkan kes Thye Ah Chai v Traju Mercu Construction & Engineering, kes Ng Hang Seng v Scoth Leading Sdn Bhd dan kes University Sains Malaysia v Ku Zilati Ku Shaari, memangdangkan Pihak Ketiga gagal memberikan penjelasan yang kukuh dan munasabah bagi kelewatannya, maka tiada keperluan untuk Mahkamah ini mempertimbangkan merit"

Aggrieved by that decision, the applicant filed the present originating summons on 17 October 2025. By his own admission, there was a delay of 35 days from the date of the Magistrate's decision on 12 September 2025 to the filing of this application.

The applicant submits that there has been an acute miscarriage of justice. He contends that the Judgment of 17 November 2023 was obtained based solely on untested, hearsay evidence. In particular, he maintains that the respondent failed to prove that he was the person responsible for the alleged tampering of the electricity meter belonging to TNB, which allegation formed the basis of the third-party proceedings.

The applicant further submits that the learned Magistrate erred in dismissing his application to set aside the Judgment solely on the ground of delay, without proceeding to examine the substantive merits. He argues that the court below adopted an unduly technical approach inconsistent with the Rules of Court. In this regard, he places reliance upon the decision in Redang Paradise Vacation Sdn Bhd v Yap Chuan Bin & Ors [2017] 5 MLJ 35, for the proposition that procedural non-compliance should not automatically result in the striking out of proceedings where the interests of justice require otherwise. He invokes the overriding objective embodied in Order 1A of the Rules of Court 2012 ("ROC 2012"), contending that the court ought to have prioritised substantive justice over procedural default.

As to the present delay of 35 days in filing the application for extension of time to appeal against the decision of 12 September 2025, the applicant attributes the lapse to emotional distress and financial constraints. He submits that the Court ought to adopt a practical and humane perspective in what he described as the "man on the street" test, and recognise that an ordinary person, confronted with mounting execution proceedings and the threat of losing his property, would be overwhelmed and unable to act with procedural promptitude.

On the issue of stay of execution, the applicant contends that the steps taken in enforcement of the Judgment are oppressive and amount to an abuse of process. He argues that the sale by public auction of his immovable property, said to be of a value substantially exceeding the judgment debt of approximately RM70,000, is a measure disproportionate to the liability sought to be satisfied. He further submits that such recourse runs counter to the spirit of Order 45 rule 1(1) of the ROC 2012, which, he contends, envisages that execution against immovable property should not be resorted to lightly and that other modes of execution, including writs of seizure and sale against movable assets, ought first to be considered.

The respondent raises a preliminary objection that the originating summons is fundamentally defective and liable to be dismissed in limine.

First, it is submitted that the originating summons is impermissibly vague and uncertain. The applicant does not clearly identify the decision of the Magistrates' Court against which leave to appeal is sought. The respondent points out that several orders had been made by the Magistrates' Court over the course of the proceedings, including the Judgment dated 17 November 2023 and the subsequent dismissal on 12 September 2025 of the applicant's third application to set aside that Judgment. The originating summons, it is said, fails to specify whether the intended appeal is directed at the dismissal of the 3rd Application or at the substantive Judgment itself. Such lack of clarity, the respondent argues, offends Order 7 rule 3(1) of the ROC 2012, which requires a concise statement of the relief claimed with sufficient particularity to inform the opposing party of the case it must meet.

Secondly, the respondent contends that the originating summons is procedurally defective for failing to state the specific provisions of the ROC 2012 under which the Court's jurisdiction is moved, in breach of Order 7 rule 2(1A) ROC 2012. Counsel submits that this omission is not a mere technical irregularity but a substantive defect. In support of that proposition, reliance is placed upon the decision in Poney Garments Sdn Bhd v Bambika Sdn Bhd [2024] CLJU 603, where the court emphasised the mandatory nature of compliance with procedural requirements. It is argued that such non-compliance cannot be salvaged by recourse to the overriding objection under Order 1A or the general saving provisions under Order 2 of the ROC 2012.

On the merits of the application for extension of time, the respondent submits that no satisfactory explanation has been furnished for the delay of 35 days. Counsel relies upon the well-established principle that the Rules of Court are to be complied with, and that mere inadvertence, oversight, or financial constraint does not ordinarily constitute a sufficient reason. In this regard, reliance is placed upon Ratnam v Cumarasamy & Anor [1965] 1 MLJ 228 and Pearson v Chen Chien Wen Edwin [1991] 3 MLJ 208. Further, it is contended that the intended appeal lacks any reasonable prospect of success. The learned Magistrate, it is argued, correctly applied the principle articulated in Ng Han Seng v Scotch Leasing Sdn Bhd [2003] 4 CLJ 533, namely that where a party fails to provide a credible explanation for delay in seeking to set aside a judgment, the court is under no obligation to proceed to examine the substantive merits.

As to the application for a stay of execution, the respondent submits that the applicant has failed to demonstrate any special circumstances warranting the exercise of the Court's discretion. Reliance is placed upon Kosma Palm Oil Mill Sdn Bhd & Ors v Koperasi Serbausaha Makmur Bhd [2004] 1 MLJ 257, which affirms that a stay of execution is not granted as a matter of course pending appeal. It is further argued that the applicant's complaint regarding the alleged hearsay nature of evidence goes to the merits of the appeal rather than to the propriety of execution. Such matters, the respondent contends, cannot constitute a basis for restraining the enforcement of a regular judgment.

I have carefully considered the submissions advanced on both sides. The issues that fall for my determination are as follows, which I shall address them sequentially:

Whether the originating summons is fundamentally defective and liable be struck out.

(ii) Whether the applicant has satisfied the requirement for an extension of time to file a notice of appeal.

(iii) Whether a stay of execution of the Judgment ought to be granted. The Defect in the Originating Summons

The respondent's preliminary objection concerns the competency of the originating summons. It is elementary that an originating process must define, with clarity and precision, the jurisdiction invoked and the relief sought. Litigation is not to be conducted upon shifting ground. The opposing party is entitled to know, from the face of the process itself, the legal basis upon which the Court is moved.

Order 7 rule 2(1A) of the ROC 2012 provides:

Every originating summons shall state in its intitulement any provision of these Rules and any provision of any written law under which the Court is being moved.

The language employed is mandatory. The use of the word "shall" is deliberate and unequivocal. In MMIP Services Sdn Bhd & Ors v Mohd Syed bin Syed Jamaludin & Ors [2023] 8 CLJ 217, the court underscored this very point: "It is trite that every originating summons shall state in its intitulement any provision of the rules and any provision of any written law under which the Court is being moved as stated under Order 7 r. 2(1A). It is mandatory in nature by the use of the word 'shall' in the said provision."

In the present case, the originating summons fails to cite the specific provisions of the ROC 2012 under which the applicant seeks relief. That omission is not insignificant. While the Court acknowledges the spirit of Order 1A which prioritizes substantive justice over procedural technicalities, there are limits to this indulgence. As observed in Cheow Chew Khoon (t/a Cathay Hotel) v Abdul Johari bin Abdul Rahman [1995] 1 MLJ 457, the failure to state the rule under which the court is moved is "not only wrong but plainly embarrassing".

The more recent decision in Poney Garments Sdn Bhd v Bambika Sdn Bhd [2024] CLJU 603 reinforces the proposition that non-compliance with Order 7 rule 2(1A) may render an originating process incompetent and not curable by reliance on Orders 1A and 2 of the ROC 2012. The Court held: "For these reasons, I am constrained to find that the Plaintiff's Originating Summons is fundamentally defective and must dismissed. The failure to specify the enabling statutory provisions under which the Fortuna Injunction is sought is fatal to the competence of the action. It deprives the Defendant of advance notice of the case it has to meet. This defect cannot be remedied by relying on Orders 1A and 2 ROC, as Order 7 Rule 2(1A) ROC is couched in mandatory terms and prescribes the necessary particulars that every originating summons must contain." [Emphasis is mine]

While I am inclined to agree with the respondent that the originating summons is indeed defective, I am of the view that in the interest of justice, the defect must be examined in context. The affidavit evidence clarifies the intent of the applicant to appeal the dismissal of the 3rd Application on 12 September 2025. The respondent has not been taken by surprise as to the case it must meet.

In those circumstances, although the originating summons is vulnerable to attack and reflects a regrettable lack of care in its preparation, I am not persuaded that the defect is, in this instance, necessarily fatal. The Court retains a discretion to prevent procedural lapses from eclipsing substantive adjudication where no irremediable prejudice is occasioned. I shall therefore proceed to determine the merits of the application. However, this sloppiness in drafting does not endear the applicant's case before this Court.

The principles governing application for extension of time are well settled and admit of no controversy. In Ratnam v Cumarasamy & Anor [1965] 1 MLJ 228, the Federal Court laid down the fundamental principle: "The Rules of Court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion."

The relevant considerations were subsequently articulated in Pearson v Chen Chien Wen Edwin [1991] 3 MLJ 208, namely: "Counsel for the husband relied on the case of Hau Khee Wee & Anor v Chua Kian Tong & Anor for the factors to be considered. In that case it was held by Chan Sek Keong J, in granting the application, that the factors to be taken into account in deciding whether to grant an extension of time to file a notice of appeal are (a) the length of the delay; (b) the reasons for the delay; (c) the chances of the appeal succeeding if time for appealing is extended; and (d) the degree of prejudice to the would be respondent if the application is granted. Counsel also relied on Banque Nationale De Paris v Shin Hong Hang Enterprise Pte Ltd & Ors; and on Tan Chai Heng v Yeo Seng Choon in which Choor Singh J said at p 272:..." [Emphasis is mine]

In this case, there is a delay of 35 days. While 35 days is not an inordinate period in the grand scheme of litigation. However, delay cannot be assessed mechanically without examining the context of the entire litigation history. The explanation offered is that the applicant was suffering from emotional stress and financial constraint. With respect, such assertions are expressed in general terms and unsupported by cogent evidence. Personal hardship, confusion, or impecuniosity, absent more, do not ordinarily suffice to displace the prima facie obligation to comply with procedural timelines. The Rules of Court would be rendered nugatory if subjective distress alone were treated as an adequate justification.

That said, the decisive factor in the present case lies in the third consideration, that is, the prospect of success of the intended appeal. The applicant seeks to appeal against the Magistrate's dismissal of his application to set aside the Judgment of 17 November 2023. The learned Magistrate declined to consider the merits on the ground that the applicant failed to explain his delay in filing the setting aside application. The approach adopted by the Magistrate accords with established authority. In Ng Han Seng v Scotch Leasing Sdn Bhd [2003] 4 CLJ 533, the Court of Appeal held: "However, the appellants' applications did not comply with O.42 r.13 of the Rules of the High Court 1980... In the present case, the 1st and 3rd appellants were two months outside the time allowed whereas the 2nd appellant was seven months. Further, there was no explanation whatsoever from the appellants for their delay in approaching the court and that they had not prayed for extension of time to make their applications. In these circumstances, there was clearly no need for the merits of the appellants' applications to be considered and in fact they should be dismissed in limine." [Emphasis is mine]

The chronology in the present case is stark. The applicant herein received the Judgment in December 2023. Yet he did not file his application to set it aside until July 2025, some one year and seven months later, and only after the execution proceedings had been set in motion. He offered no explanation for this initial delay in the lower court. The learned Magistrate was entirely correct in her application of the law. The failure to explain the delay in filing the application to set aside the judgment in the first instance was fatal. Therefore, the Magistrate did not err in dismissing the application without considering the merits.

It follows that the intended appeal is devoid of realistic prospects. To grant an extension of time in order to pursue an appeal that is bound to fail would serve no legitimate purpose and would merely prolong litigation which has already been unduly protracted. For these reasons, the application for extension of time must be refused.

I turn finally to the application for a stay of execution. The governing principle is that a successful litigant is entitled to the fruits of their judgment. A stay pending appeal is not granted as a matter of course. It is an exceptional indulgence, justified only where special circumstances are shown.

The principle was succinctly articulated by the Court of Appeal in Kosma Palm Oil Mill Sdn Bhd & Ors v Koperasi Serbausaha Makmur Bhd [2004] 1 MLJ 257: [7] The general rule is that an appeal shall not operate as a stay of execution unless the court so orders. Accordingly, as Brown J said in Serangoon Garden Estate Ltd v Ang Keng [1953] MLJ 116 while commenting on the discretion to grant a stay: But it is a clear principle that the Court will not deprive a successful party of the fruits of his litigation until an appeal is determined, unless the unsuccessful party can show special circumstances to justify it... [23] The onus is on the applicants to demonstrate the existence of special circumstances to justify the grant of a stay of execution. The reasons must relate to the enforcement of the judgment. They must be deposed in the affidavit filed in support of the application (see Syarikat Berpakat v Lim Kai Kok [1983] 1 MLJ 406)...” [Emphasis is mine]

The burden therefore rests firmly upon the applicant, and the special circumstances relied upon must pertain to the enforcement process itself, not merely to the perceived merits of the underlying judgment.

The applicant argues that the execution via public auction is oppressive and disproportionate, and reiterates that the Judgment was obtained on hearsay evidence. With respect, this conflates the distinct juridical concepts. Allegations that the evidence was defective or insufficient go to the merits of the intended appeal. They do not, without more, constitute special circumstances relating to the enforcement of a regularly obtained judgment. As emphasised in Kosma Palm Oil (supra), the enquiry is not whether the judgment is vulnerable, but whether its enforcement would occasion injustice of a character warranting intervention.

The complaint that the sale of the applicant's immovable property is disproportionate to the judgment debt is equally unpersuasive. An order for sale was granted by the High Court on 25 February 2025. The applicant was represented at the time and did not mount any substantive opposition to that order. Having allowed the machinery of execution to proceed without challenge, he cannot now characterise the very process he acquiesced in as oppressive.

Moreover, it is deposed that the auction scheduled for 28 October 2025 did not proceed for want of bidders. The immediate risk of dispossession has therefore not materialised. While this does not of itself determine the application, it somewhat renders the issue moot, as the immediate threat of sale has subsided for the moment, pending further execution steps.

A further and significant consideration is delay. The Judgment was served in December 2023. The present application for a stay was only pursued after execution had been substantially advanced. In MCAT GEN Sdn Bhd v Celcom (Malaysia) Bhd (Part 2) [2007] 8 MLJ 107, it was observed that delay in seeking a stay may be fatal, for it betrays a lack of genuine urgency and undermines the equitable basis of the relief sought. The applicant has, in truth, slept on his rights.

Taking these matters cumulatively, I am unable to discern any special circumstances that would justify depriving the respondent of the fruits of a judgment obtained as long ago as November 2023.

For the reasons I have set out above, the applicant has failed to establish grounds either for an extension of time to appeal or for a stay of execution. Although the originating summons was procedurally defective, I have nevertheless considered the merits and found them wanting.

The applicant's historical conduct in this litigation, by failing to appear at trial, by delaying the application to set aside the Judgment, by withdrawing previous appeals, and now by filing defective and belated applications, is indicative of a strategy to delay the inevitable enforcement of the Judgment. The Court will not countenance such conduct.

Accordingly, the originating summons filed by the applicant is dismissed with costs of RM8,000 to be paid by the applicant to the respondent, subject to allocatur. Dated the 5th day of March 2026 ...SGN... MOH KOK WAI JUDICIAL COMMISSIONER OF THE HIGH COURT HIGH COURT (CIVIL DIVISION NCvC14) HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF MALAYSIA Counsel for the Appellant:Nordin Rauf Messrs Nordin Rauf & CoCounsel for the Respondent:Lai Ann Xing and Tharsini Santa