cases, it is also possible for the plaintiff before the original writ ceases to be valid, to issue a fresh writ. In category (1) and (2) cases, the defendant who has not been served does not have an 405 accrued right of limitation at the time when the application for extension is made. However, in category (3) cases, it is not possible for the plaintiff to serve the writ effectively unless its validity is first retrospectively extended. Accordingly (in the category (3) situation), at the time when the application for 410 extension is made, a defendant on whom the writ has not been served has an accrued right of limitation. In determining whether the plaintiff has made a sufficient case to justify renewal, the court must attach the appropriate importance to these considerations. The priorities in each case are determined by the circumstances 415 so that, for example, the defendant's potential loss of a limitation defence might be regarded as less compelling if the plaintiff's inaction was induced by the defendant's consent to the extension of the writ. The court must decide for itself the cumulative effect of all the factors which support or are against renewal." 420 S/N U6w8gPSixUm1eEfp8bgwWw [29]. To further bolster this point, I refer to Arab-Malaysian Credit Bhd v Tan Seang Meng [1995] 1 MLJ 525, where the facts is somewhat similar to the present case. In Arab-Malaysian Credit Bhd (supra), the plaintiff initially faced difficulties in effecting personal service on 425 the defendant, leading to an order for substituted service granted. The substituted service was carried out and judgment in default was entered against the defendant. The defendant was unaware of these proceedings until later when bankruptcy proceedings were initiated based on the default judgment. The defendant then took 430 steps to set aside the default judgment, and this application was filed approximately six years and three months after the Default Judgment was entered. The Judge set aside the default judgment as he deemed flaws in the order for substituted service. The 435 the end of 12 calendar months from its issue. To overcome this, the plaintiff made eight separate ex-parte applications for 12-month extensions, effectively reviving the expired writ. The defendant, upon being served with the extended writ, entered a conditional appearance and subsequently appealed against the orders 440 extending the writ. Initially, the senior assistant registrar denied the defendant's request. However, on appeal, the judge overturned the extensions, ruling that the court lacked the authority to grant such extensions. The plaintiff then appealed this decision to the Court of Appeal. His Lordship Justice Gopal Sri Ram, was of the view that a 445 court possesses the clear authority to extend the validity of a writ even after it has expired. Although, the decision to exercise this jurisdiction in a specific instance is left to the discretion of the court that is considering a request for such an extension. This implies that while the legal capability exists, its application depends on the 450 S/N U6w8gPSixUm1eEfp8bgwWw unique circumstances and considerations of each individual case. This is what Justice Gopal Sri Ram, JCA said: bservations of Lord Brandon do nothing more than to highlight the salient aspects of the Rule which are plainly visible to one's intellect upon a reading of it and upon a comparison of it with 455 its precursor. What comes through when a reading of the speech as a whole is undertaken is that a court has undoubted jurisdiction to extend a writ even after its expiry. Whether that jurisdiction ought to be invoked in a given case is a matter within the discretion of the court hearing an application to extend: Waddon v Whitecroft 460 Scovill Ltd [1988] 1 All ER 996; [1988] 1 WLR 309 [30]. His Lordship Gopal Sri Ram, in the same case of Arab-Malaysian Credit Bhd (supra), went further to state on the exercise of discretion: 465 order or to grant relief and quite a different thing to say that a particular order or relief will not, in accordance with settled principles, be granted. A refusal in such circumstances is in fact an exercise of jurisdiction and not a denial of it. This important 470 distinction of principle is well brought out by the following passage in the advice of the Privy Council delivered by Lord Diplock in Rediffusion (Hong Kong) Ltd v A-G of Hong Kong [1970] AC 1136; [1970] 2 WLR 1264 which was applied by our Federal Court in Dato Menteri Othman bin Baginda & Anor v Dato Ombi Syed 475 Alwi bin Syed Idrus [1981] 1 MLJ 29 : When considering an action claiming relief in the form of discretionary remedies only it is thus important to distinguish S/N U6w8gPSixUm1eEfp8bgwWw between the jurisdiction of the court to entertain the action at all, 480 ie to embark upon the inquiry whether facts exist which would entitle the court to grant the relief claimed, and a settled practice of the court to exercise its discretion by withholding the relief if the facts found to exist disclose a particular kind of factual situation. The application of a discretion to refuse relief even 485 though this may be pursuant to a settled practice is an exercise of jurisdiction, not a denial of it. Although those words were spoken in the context of declaratory relief, they are of universal application and are analogously relevant to the present case where a rule of court has expressly 490 conferred a wide discretion on the court. [31]. The conclusion reached by His Lordship is also worth considering: Having addressed our minds to the plain words of O 6 r 7, and the 495 decided cases in which it has been considered, we are satisfied that the High Court had ample jurisdiction to grant the plaintiff in the instant case the several extensions sought by it of its writ. Quite apart from O 6 r 7, there is wide power under O 3 r 5 conferred upon the High Court to extend time. Even the restriction 500 of granting more than one extension of 12 months expressed in O 6 r 7 may, in appropriate cases, be overcome by having resort to O 92 r 4 (absent in the English RSC) which is a jurisdictional provision. (See Pacific Centre Sdn Bhd v United Engineers (M) Bhd [1984] 2 MLJ 143.) 505 Further, in a recent and yet unreported judgment of this court, reference has been made to the important principle that a rule of court should not be construed so as to produce unfairness or a manifest injustice. (See Sim Seoh Beng & Anor v Koperasi Tunas S/N U6w8gPSixUm1eEfp8bgwWw Muda Sungai Ara Bhd, Court of Appeal Civil Appeal No P-02-7-94 510 [since reported in [1995] 1 MLJ 292 ].) Surely, this principle may be invoked to overcome any technical obstacles in the way of achieving substantial justice in a case where a pedantic approach 515 [32]. In our present case, the learned session court, after reviewing the case, did not refuse an extension based on the exercise of his discretion. Instead, he based his refusal on O 6 r 7(2A) of the ROC 2012, holding that the Plaintiff failed to meet the three necessary requirements for the court to grant a renewal of the writ. 520 Conclusion: [33]. represents a sincere pursuit of justice, supported by their continuous proactive actions. The Plaintiff cannot be faulted in any way for the 'delay' between the period when 525 judgment in default was entered and the time it was set aside. By interpreting the Rules of Court 2012 in their true spirit, which is to step in ensuring that the principles of justice are upheld. I am of 530 opinion that both parties should be given an opportunity to ventilate the merits of each of their respective cases. [34]. Enclosure 54 with no order as to costs. 535 S/N U6w8gPSixUm1eEfp8bgwWw Postscript [35]. After delivering my decision in this case on October 20, 2023, the Defendant's counsel commendably brought the Federal Court's decision in FIMBank Plc v The Owners and/or Demise Charterer 540 to my attention. The Federal Court delivered this decision on October 16, 2023, just four days before my decision in this case. The Federal Court allowed the appeal, overturning the Court of Appeal's decision in the same case. The Defendant had relied on the Court of Appeal's 545 decision in FIMBank Plc (supra) in the current case before me. It must be noted that neither the court nor the counsel were aware of the Federal Court's decision in FIMBank Plc (supra) when the decision in the present case was delivered. 550 [36]. Although the Federal Court's decision was in the context of admiralty claims, in my view, the rationale behind Order 6 Rule 7(2) of ROC 2012 applies to all cases where it serves a specific purpose in ensuring due diligence among litigants, particularly focusing on the service of a writ. It is a measure against indolence in litigation, 555 ensuring that parties actively pursue their legal rights and obligations. [37]. The Federal Court is of the view that interpreting O 6 r 7(2) of the ROC 2012 as imposing an absolute limit on the number of renewals 560 diverges from the rule's intended purpose. The court finds that such a rigid interpretation could inadvertently impair the administration of justice rather than facilitate it. It risks penalizing diligent litigants S/N U6w8gPSixUm1eEfp8bgwWw who, despite their efforts, are unable to serve the writ due to factors beyond their control. 565 [38]. The Federal Court acknowledges the role of the court's inherent to situations where there is a gap or lacuna in the ROC. Even if O 6 r 7(2) of the ROC 2012 expressly limits the number of times a writ 570 can be extended, the court should retain the inherent power to go beyond this limit to prevent injustice. This approach ensures that a litigant's statutory right to pursue their claim is not unjustly defeated by a strict and pedantic reading of O 6 r 7(2) of the ROC 2012. 575 [39]. I conclude that the Federal Court's decision in FIMBank Plc (supra) reinforces this court's decision regarding Enclosure 54 in the present case. 580 Date: 14 December 2023 Moses Susayan 585 MOSES SUSAYAN Judicial Commissioner High Court in Malaya at Ipoh, Perak 590 S/N U6w8gPSixUm1eEfp8bgwWw For Plaintiff: Nur Diana binti Ramlee Advocates and Solicitors 595 Messrs Bh Koh, Soong, Zarin & Partners Ipoh, Perak For Defendant: 600 Yuvaraj a/l Sugapthy Advocates and Solicitors Messrs Sugapthy & Partners Kuala Lumpur 605 (Notice: This Grounds of Decision is subject to official editorial revision) Headnotes Civil Procedure Writ of Summons Extension of Writ The Plaintiff 610 applied for an extension after the writ's validity period. Whether the court is in a position to exercise its discretionary power to extend the writ under Rules of Court 2012, O 6 r 7(2). Whether the plaintiff can be blamed when the Judgment in Default and the order for substituted service are set aside after the writ's validity period. Whether, should the 615 court exercise its inherent jurisdiction under O 92 r 4 of the ROC in such cases Whether the court should retain the inherent power to extend the writ beyond the limit expressly set by O 6 r 7(2) to prevent injustice. S/N U6w8gPSixUm1eEfp8bgwWw