Gonaswari A/P Theyagason v Rajan A/L Krishnan (JA-33-413-08/2024)

The Appellant has filed a divorce petition (Enclosure 1) against the Respondent (“R”), inter alia, seeking the dissolution of marriage, custody, care and control of the child to be given to the R with the reasonable access be given to the Appellant, maintenance for the youngest child and also the matrimonial properties to be sold and proceeds of sales after deducting all the expenses to be divided equally between the Appellant and the R and alternatively the Appellant be given liberty to purchase the matrimonial properties at the market value.

The Appellant has failed to file Answer to the Enclosure 1 according to the dateline set by the Court and the Appellant’s solicitor also failed to attend Court on 15.04.2025.

Below are the grounds of my decision.

The background facts in Enclosure 1 are gathered from the cause papers filed by the parties in chronological order.

On 10.11.2001, the Appellant was legally married with the R before the Registrar of Marriages at Registration Department of Johor Bahru.

The Appellant and R have three (3) children, two (2) have reached age of majority and the youngest son is aged 13 (“the child”).

There are two marital properties which were registered under the names of the Appellant and the R as follows:

GM 1165 Lot 87825 (formerly known as HSM 1450 PTD 118665), Pulai District in the Johor Bahru, Johor having address at No. 1, Jalan Utama 9, Taman D’Utama, Johor Bahru, Johor; and

GRN 569703 LOT 172796 (formerly known as HS(D) 573330 PTD 195589) Tebrau District in the Johor Bahru, Johor having address at #03-03-D, Storey No. 3, Block D, Laman Glasier (also known as Country Garden Central Park), Persiaran Aliff Harmoni utama, Taman Damansara Aliff, 81200 Johor Bahru, Johor.

The R averred that the marriage of the Appellant and R should be dissolved because the marriage has irretrievably broken-down and cannot be restored based on inter alia, the following reasons:

the Appellant always fight with the R and there is no understanding or any communication between them where the Appellant has acted violently, beaten and abused the R;

the Appellant never take care the affairs of the R; and

the Appellant always threatening, torturing and throwing suspicious questions against R.

Until 15.04.2025, the Appellant has failed to file Answer to Enclosure 1 despite being directed by the Deputy Registrar to file it on or before 08.10.2024.

The only issue to be determined by the Court is whether the Court can allow Enclosure 1 due to the failure of the Appellant to comply with directives including filing the Answer to Enclosure 1 by court deadline. COURT ANALYSIS AND FINDINGS Whether the Court can allow Enclosure 1 due to the failure of the Appellant to comply with directives including filing Answer to Enclosure 1 by court deadline

Order 34 of the Rule of Court (“ROC”) 2012 provides as follows: “(3) The Court, having given directions under rule 2(2) or rule 3 may either on its own motion or upon the application of any party, if any party defaults in complying with any such directions, dismiss such action or proceedings or strike out the defence or counterclaim or enter judgment or make such order as it thinks fit.

Any judgment or order made under rule 2(3) may be set aside by the Court, on the application of the party, on such terms, if any, as it thinks just.”. [Emphasis added]

In this regard, I refer to the Court of Appeal decision in Faisal @ Ibrahim Siraj & Anor v. Pentadbiran Tanah Daerah Hulu Langat & Ors [2024] 2 MLRA 146 which has ruled that Order 34 Rule 2(4) is applicable by way of a setting aside application and not appeal where it was held that— “[16] On 17 December 2019, the High Court had struck out the Plaintiffs’ claims on the reason that the Plaintiffs had failed to comply with the Court’s instructions to file the cause papers required for trial, i.e. the Bundle of Agreed Documents, the Agreed Facts and Issues to be tried. Dissatisfied, the Plaintiffs moved an appeal to the Court of Appeal in Civil Appeal No: B-01(IM)(NCvC)- 35-01/2020. The appeal was struck out on 6 July 2020 with an award for cost of RM3,000.00 in favour of D7 in which the Court of Appeal had allowed the Respondents to strike out the appeal based on the reason that the Plaintiffs had wrongfully appealed against such order. The Plaintiffs should first apply to the High Court in accordance to O 34 r 2(4) of the Rules of Court 2012.” [Emphasis added]

In the instant case, the Appellant has on 15.07.2025 filed Notice of Appeal to appeal the decision made on 15.04.2025. It is noted the Notice of Appeal was filed out of time, i.e. three (3) months after the decision, without the leave of the Court of Appeal. However, I leave it to the Court of Appeal to decide whether the appeal should proceed.

Applying the principles enunciated in the case above, the Appellant should have file an application to set aside the Court Order dated

15.04.2025 first before filing Notice of Appeal.

The Deputy Registrar has during the case management via e-Review on 17.09.2024, instructed the Appellant’s solicitor to file the Answer to Enclosure 1 on or before 08.10.2024 and the R’s solicitor to file the Reply to the Answer to Enclosure 1 on or before 22.10.2024.

16.

wishes to defend the petition or to dispute any of the facts alleged in it; or

being the respondent, wishes to make in the proceedings any charge against the petitioner in respect of which the respondent prays for relief, shall, within 21 days after the expiration of the time limited for giving notice of intention to defend, file an answer to the petition.

An answer may be filed at any time before directions have been given for the trial of the cause, notwithstanding that the time for filing the answer has expired or that the person filing the answer has not given notice of intention to defend…”. [Emphasis added]

Rule 18 of DMPR 1980 provides no pleading shall be filed without leave after directions for trial have been given.

In the instant case, the R is directed to file direction for trial two (2) weeks before the next hearing date on 21.01.2025 and the matter was subsequently adjourned to 15.04.2025.

On 15.04.2025, during the hearing of Enclosure 1, the Appellant attended the Court and the Appellant’s solicitor did not attend on that day. The R’s solicitor requested Enclosure 1 to be allowed since the Appellant has failed to file Answer to Enclosure 1 to contest the

The Appellant has informed the Court that he disagreed with the Enclosure 1. However, the Appellant has failed to provide reasons for not filing Answer to Enclosure 1 since 08.10.2024.

In this regard, I refer to the case of Lim Goh Eng Holdings Sdn Bhd v Off-Shore-CPI Supply Sdn Bhd [2020] MLJU 275, where the High Court held that— “[8] An unless order is an order of the Court which requires a person to do something within a fixed time and states the consequences of transgression. There is abundant authority to the effect that an unless order being a pre-emptory order of the Court, must be adhered to and its non compliance would automatically attract the penalty prescribed in the order. Failure to comply may therefore result in the dismissal of an action or the striking out of the defence. See How Hock Sing @ Low Kim Peng [2015] MLJU 712 and Reiss v Woolf [1952] 2 All ER 112. … [16] It bears mention that unless there are good reasons for non-compliance, disobedience of a peremptory order will be considered contumelious conduct justifying a striking out….”. [Emphasis added]

Further, in the case of Koh Heng Jin v. Gan Kooi Ann [2015] CLJU 1244, where the Court of Appeal held that – “[40] In our view even though the learned judge did not issue an “unless order”, O. 34 r. 2(2) of the ROC (not O. 34 r. 1 as cited by counsel) clearly contemplates that orders and directions issued by the court during pre-trial case management are peremptory in nature as O. 34 r. (3) of the ROC confers on the court the power to, inter alia, strike out a party’s claim either on its own motion or upon the application of any party, in the event that such party defaults in complying with any order and/or directive issued by the court under the said O. 34 r. 2(2).”. [Emphasis added]

Obviously, the Appellant did not provide any cogent explanation as to why they have failed to file Answer to Enclosure 1 since direction given by the Deputy Registrar on 17.09.2024. From the records, the Appellant’s solicitor has been appointed since 14.09.2024 to represent the Appellant and the Appellant’s solicitor has attended the e-review on 17.09.2024 They are well aware of the directions given by the Deputy Registrar that the Answer to Enclosure 1 has to be filed on or before 08.10.2024. Despite being directed by the Court, the Appellant’s solicitor did not take any action to file any Answer to Enclosure 1 till 15.04.2025 and failed to attend the Court on 15.04.2025.

After considering the failure of the Appellant to file Answer to Enclosure 1 since 08.10.2024 and the failure of the Appellant to explain the delay to do so, I allowed Enclosure 1 as prayed by the R in subparagraph 28 (i) to (xiii), (xv) to (xvii) of Enclosure 1, with some amendment made to subparagraph 28(x) by substituting for the words three (3) months with the words of six (6) months.

The Appellant’s solicitor has failed to carry out its duties professionally. The Appellant’s solicitor has clearly violated Rule 6 and Rule 24 of the Legal Profession (Etiquette and Conduct) Rules 1978 which provides that— “Rule 6. An advocate and solicitor not to accept brief if unable to appear

An advocate and solicitor shall not accept any brief unless he is reasonably certain of being able to appear and represent the client on the required day.

An advocate and solicitor shall not ordinarily withdraw from an engagement once accepted, without sufficient cause and unless reasonable and sufficient notice is given to the client. Rule 24. Advocate and solicitor to be ready for the day fixed for trial

An advocate and solicitor shall make every effort to be ready for trial on the day fixed.

An advocate and solicitor may apply for postponement of a case fixed for hearing for good and cogent reasons only.

Except in an emergency, it is improper for an advocate and solicitor to apply for a postponement in the absence of counsel or the other side unless he has given the counsel concerned at least forty eight hours notice of his intention to make the application.”. [Emphasis added] CONCLUSION

Based on the reasons above, I allowed Enclosure 1 as prayed by the R in subparagraph 28(i) to (xiii), (xv) to (xvii) of Enclosure 1, with some amendment made to subparagraph 28(x) by substituting for the words three (3) months with the words of six (6) months. Dated 10 October 2025. Signed by: SGD ……………….. Wong Mee Ling Judge High Court of Malaya Johor Bahru Johor Darul Ta’zim. Counsel/Solicitor For the Appellant: Ms. Nur Liah Asul Messrs. Tun Saiful & Co. Counsel/Solicitor For the Respondent: Jessica Christophel George Messrs Julie Lim, Vasanthan & Co.