Mohd Musyriff Bin Ahmad Tajuddin v 1. ) Nadirah Binti Ahmad (KA-24NCvC-682-09/2018)

ABDUL RAHAMAN BIN WAN LAH as representative of AMNAH BT. WAN ALI, the Deceased --- DEFENDANTS 19/08/2025 18:18:14 KA-24NCvC-682-09/2018 Kand. 94 S/N FrfakoaLz0OGXw0i51v4RQ GROUNDS OF JUDGMENT [Second Defendant Application pursuant to Order 37 –

This is the Second Defendant (D2) and Third Defendant (D3) interlocutory application for an extension of time (‘this Application’) for the assessment of damages against the Plaintiff and D1 pursuant to Order 37 of the Rules of Court 2012. Herein are the my judgments and reasons in dismissing the extension of time application.

Facts of the case 2. Through this Application, D2 and D3 were seeking an extension of time for the assessment of damages under Order 37 r1 that was granted pursuant to an earlier order of alienation of land.

The Court of Appeal had on 13 December 2021 ordered for the assessment of damages to be determined by this Court.

The affidavits that were filed for the purposes of the extension of time application are as follows:

Second Defendant’s affidavit in support affirmed by Azuden bin Aziz (Encl. 46);

(ii) First Defendant’s affidavit in reply affirmed by Nadirah bt Ahmad (Encl. 53);

(iii) Plaintiff’s affidavit in reply affirmed by Mohd Musyriff bin Ahmad Tajuddin (Encl. 55);

(iv) First Defendant’s affidavit in reply (No.2) affirmed by Nadirah bt Ahmad (Encl. 59);

Second Defendant’s affidavit in reply affirmed by Azuden bin Aziz (Encl. 61);

(vi) Second Defendant’s affidavit in reply affirmed by Azuden bin Aziz (Encl. 62);

(vii) Plaintiff’s affidavit in reply (No.2) affirmed by Mohd Musyriff bin Ahmad Tajuddin (Encl. 67); and

(iii) Second Defendant’s affidavit in reply affirmed by Azuden bin Aziz (Encl. 69). Findings and Decision of the Court

Having read all the affidavits and the written submissions filed by the parties and the oral submissions thereafter, I dismiss this Applicaties with costs. I furnish below my grounds thereto.

This Application for extension of time is made pursuant to Order 37 of the Rules of Court 2012 which states: S/N FrfakoaLz0OGXw0i51v4RQ “1. Assessment of damages by Registrar (O. 37 r. 1)

Where judgment is given for damages to be assessed and no provision is made by the judgment as to how they are to be assessed, the damages shall, subject to the provisions of this Order, be assessed by the Registrar, and the party entitled to the benefit of the judgment shall, within one month from the date of the judgment, apply to the Registrar for directions and the provisions of Order 34 shall, with the necessary modifications, apply.

On the hearing of the application for directions, the Registrar may, in addition to making such orders as are necessary and appropriate under Order 34, give directions as to the time by which a notice of appointment for assessment of damages shall be filed and such notice upon being filed shall, notwithstanding anything in Order 62, rule 10, be served not later than seven days thereafter on the party against whom the judgment is given. Notice of appointment for assessment of damages shall be in Form 62A.

If the party entitled to the benefit of the judgment fails to comply with paragraph (1), the Court may, on the application of the party against whom the judgment is given, proceed to assess damages or make such other order as it thinks just.

The attendance of witnesses and the production of documents before the Registrar in proceedings under this Order may be compelled by subpoena, and the provisions of Order 35 shall, with the necessary adaptations, apply in relation to those proceedings as they apply in relation to proceedings at the trial.

Subject to any direction given by the Registrar pursuant to this rule, the party entitled to the benefit of the judgment shall file a notice of appointment for assessment of damages within six months of the date of judgment.

A party shall not file a notice of appointment for assessment of damages by the Registrar pursuant to this rule unless directions for S/N FrfakoaLz0OGXw0i51v4RQ filing and exchange of affidavit evidence pursuant to Order 34 have been given or complied with, as the case may be.

If that party does not file the notice of appointment for assessment of damages within the prescribed period, any other party may apply for directions.” [Emphasis added] The Principles on Extension of Time

In exercising its duty, this Court shall consider whether this Applicaties has fulfilled the requirements of Order 3 r. 5 of the Rules of Court 2012.

Order 3 r.5 of the Rules of Court 2012 states:

Extension of time (O. 3 r. 5)

The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorized by these Rules or by any judgment, order or direction, to do any act in any proceedings.

The Court may extend any such period as referred to in paragraph

although the application for extension is not made until after the expiration of that period.

The period within which a person is required by these Rules, or by any order or direction, to serve, file or amend any pleading or other document may be extended by consent in writing without an order of the Court being made for that purpose.

In this Application, D2 and D3 submited that the extension of time application is made pursuant to Order 37 of the Rules of Court 2012.

D2 and D3 premised that they had previously made an application for an extension of time (Encl. 36), but that application was withdrawn with the right to file again. Hence this Application (Encl. 43) for an extension of time for the assessment of damages.

D2 and D3 admitted that in the an extension of time application, sufficient evidentiary material must be provided to justify the application. Gopal Sri Ram JCA (as he then was) held in the case of Soh Keng Hian v Amerian International Insurance Co. Ltd [1996] 1 MLJ 191 at 194 that:- “It is axiomatic that this court is seized of a wide discretion to extend time in proper and deserving cases. But it is not unprincipled discretion. There must but some relevant evidential material made available to us before we may exercise discretion.” [Emphasis added]

It is trite law that the burden and onus is on the applicants to prove the circumstances to justify the extension of time. It must be explained and/or shown in the affidavit filed in support of the extension of time application.

D2 and D3, in support of Application, referred to the case of Northwest Holdings Sdn Bhd v Muhibbah Engineering (M) Bhd [2004] 4 MLJ 481 that upon the amendments and S/N FrfakoaLz0OGXw0i51v4RQ existence of Order 1A, Order 2 & 3 of the Rules of Court 2012:- “ [11] In brief the above provision provides that the failure to comply with the requirements of the rules would be construed as a mere irregularity and not as a nullity. In effect, the amendments (O 1A and O2 & 3) have merely placed all technical objections at its rightful place, ie irrelevant if it defeats the purpose of justice.”

In addition, D2 and D3 quoted Vellasamy Ponnusamy & Ors v Gurbachan Singh Bagawan Singh & Anor [2020] 7 CLJ 512 on the Order 37 mandatory requirement and their inordinate delay. In that case, Hamid Sultan Abu Backer JCA in allowing the extension of time application held that:- “[6] The reading of O.37 per se does not take away substantive rights. It only requires the parties to expeditiously file for order assessment of damages within one month. If the winning party does not file, the losing party can do so. If both do not file, there is an obligation for the court to give directions rather than striking out the substantive rights as set out in O.34 (case management proceeding). Order 37 r.1(1) cannot be read in isolation. It has to be read as among others with O.37 r.1(3), (7) as well as O.34 inclusive of O.1A.”

D2 and D3 alleged that in Vellasamy Ponnusamy, the extension of time application for assessment of damages was filed 3 years late and was allowed by the Court of Appeal. In the current case, D2 had filed their application on 19/06/2024 which is 2 years and 6 month late. Thus their application should be allowed.

Conversely, the Plaintiff in opposing D2 extension of time application referred to the Court of Appeal case of Tetuan Sri Ling & associates v Lian Meng Wah [2015] 3 CLJ 63 whereby Idrus Harun JCA (as he then was) held that:- “[5] Under O. 37 of the ROC, LMW was required to apply to the Registrar for directions within one month from the date of judgment. By filing encl. 48 almost three years after the said JID, LMW failed to comply with the mandatory requirement under O.37 r.1(1) of the ROC. LMW also failed to comply with the mandatory requirement under O. 37 r.1(3) of the ROC which required him to file notice of appointment for assessment for damages within six months from the date of judgment. There was serious non-compliance with O.37 of the ROC and LMW did not proffer any explanation on the non-compliance and the delay of three years. … [52]...it would seem clear that there is serious non-compliance with O.37 on the part of LMW as regards the procedure that is required to be followed relating to assessment of damages. There was indeed no explanation S/N FrfakoaLz0OGXw0i51v4RQ proffered by LMW on the non-compliance with the law and the long delay of almost three years to file the notice of appointment for assessment of damages.” [Emphasis added]

With these two distinctively opposing Court of Appeal decisions, I am guided by principle of the merits and justification for the undue delay in considering this extension of time application. D2 averred that the delay was due to its appointment of a valuer company to prepare the valuation report and also alleges interference / encroachment by the Plaintiff and/or its agents of the land/property. I find this reason unacceptable.

As contended D1 in its submission to oppose this extension of time application where it quoted the recent case of Bunyak Anak Gadin & Ors v Superintendent of Land [2024] CLJU 1698 at [36] which held that:- “[36] In this case, the Court finds the Plaintiffs’ delay plainly excessive and unreasonable. … [42] It is implausible that a qualified valuer could not assess the value of the area or damages suffered by the Plaintiffs for almost a decade after the Plaintiffs commenced the action arising from the infringement of their NCR they claimed over the area of the land as ascertained and adjudged by the Court.” [Emphasis added]

Furthermore, the applicant D2 had failed to provide any affidavit in support by D3. Alas, D2 had failed to produce and/or show to the court via its submission of any coherent or plausible circumstances to justify the delay to support its application.

Consequently, I am of the view that there is insufficient plausible grounds and justification for exercising the discretion to extend time in favour of D2 and D3. Both applicants had been sitting on their rights and this Application is merely an afterthought.

For the foregoing reasons, I therefore dismiss this Application with cost of Rm3,500.00 each to the Plaintiff and First Defendant. Dated: 19th August, 2025 -------------------------------------------------------- DR JOHN LEE KIEN HOW @ MOHD JOHAN LEE JUDGE HIGH COURT MALAYA ALOR SETAR S/N FrfakoaLz0OGXw0i51v4RQ For The Plaintiff : Syazwani Messrs. Azlina & Alfian Advocates & Solicitors For The 1st Defendant : Wilson Lim & Chong Man Yee Messrs. Wilson Lim Advocates & Solicitors For The 2nd Defendant : Ahmad Farid & Siti Zuhairah Messrs. Ahmad Farid & Associates Advocates & Solicitors Table of Authorities Cases Soh Keng Hian v Amerian International Insurance Co. Ltd [1996] 1 MLJ 191 at 194 Northwest Holdings Sdn Bhd v Muhibbah Engineering (M) Bhd [2004] 4 MLJ 481 Vellasamy Ponnusamy & Ors v Gurbachan Singh Bagawan Singh & Anor [2020] 7 CLJ 512 Tetuan Sri Ling & associates v Lian Meng Wah [2015] 3 CLJ 63 Bunyak Anak Gadin & Ors v Superintendent of Land [2024]