P.Raveentharan A/L A.Periasamy v Tetuan Gurdip Sarjit & Co (BA-22NCvC-78-02/2024)

This Court now delivers its detailed Grounds of Judgment in respect of the Plaintiff’s applications vide Enclosures 66, 68 and 70 whereby the Plaintiff seeks to set aside the orders of this Court delivered on 7 November 2024 relating to Enclosures 11, 15 and 18. The thrust of the Plaintiff’s case is that the said orders were made in his absence and therefore must be treated as ex parte orders capable of being set aside pursuant to Order 32 rule 6 of the Rules of Court 2012 (“ROC 2012”).

The Defendant opposes the applications and submits that the orders were made inter partes, after proper notice and opportunity to be heard were afforded to the Plaintiff pursuant to Order 32 rule 5 ROC 2012. Thus, the Defendant contends that the present applications amount to an improper collateral attack on final interlocutory orders and constitute an abuse of process, the proper recourse being an appeal rather than a rehearing application cloaked as a setting aside motion.

Having considered the full factual matrix, the procedural chronology, the parties’ affidavit evidence, the comprehensive submissions, and the governing legal principles, this Court finds that the Plaintiff has failed to demonstrate any grounds for disturbance of the orders made on 7 November 2024. The Plaintiff was not denied a right to be heard; rather, he failed to exercise it despite ample notice and indulgence. These applications are without merit and are dismissed.

The Plaintiff commenced this suit alleging misconduct and wrongful acts on the part of the Defendant, a law firm. Upon service, the Defendant duly entered appearance and filed a Defence. Subsequently, the Defendant filed Enclosure 11, an application under Order 18 rule 19 ROC 2012 to strike out the Plaintiff’s Statement of Claim on the basis that the claim disclosed no reasonable cause of action, was scandalous and vexatious, and amounted to an abuse of process of Court.

The matter proceeded for case management. The Plaintiff attended and participated on several dates including 25 April 2024, 7 May 2024 and 1 August 2024. Directions were given for the filing of written submissions on Enclosure 11. The Plaintiff sought an extension of time, which this Court granted, demonstrating procedural fairness and indulgence to the Plaintiff.

Despite such indulgence, the Plaintiff failed to file submissions and provided no explanation or justification. No document was filed to show any attempt to comply with the Court’s direction.

The hearing of Enclosure 11 was set for 17 October 2024. On that date, the Plaintiff did not attend. No letter, no prior request for adjournment, no affidavit, and no communication whatsoever was made to the Court. The Defendant, however, attended and addressed the Court.

Satisfied that notice was duly given, this Court exercised its powers under Order 32 rule 5 ROC 2012 and proceeded to hear the Defendant. Judgment was reserved, and the matter was fixed for 7 November 2024 for pronouncement of decision.

The Court communicated the decision date to both parties on 21 October 2024 via email. The Defendant also issued a letter to the Plaintiff on 17 October 2024 notifying him again of the decision date. The Plaintiff gave no response.

On the morning of 7 November 2024, the Plaintiff filed a letter dated 6 October 2024 attaching a medical certificate and purported to request adjournment. The letter was unsupported by affidavit. No explanation was furnished for why the medical certificate was not disclosed before the hearing or prior to the decision date notification.

This Court noted that the medical certificate pre-dated the hearing date and was never produced earlier. Given the timeline and context, as well as the lack of affidavit support and lack of explanation, the request was rejected.

Thereafter, this Court proceeded to deliver its orders: Enclosure 11 was allowed; Enclosure 15 was dismissed; Enclosure 18 was allowed.

The Plaintiff now seeks to set aside those orders on grounds that they were ex parte.

Several issues arise for determination: i) whether the orders of 7 November 2024 were ex parte orders within the contemplation of Order 32 rule 6 ROC 2012; ii) whether the Plaintiff was in fact denied the right to be heard, thereby giving rise to a breach of natural justice; iii) whether this Court acted within its jurisdiction in proceeding under Order 32 rule 5 ROC 2012 when the Plaintiff failed to attend the hearing; iv) whether any exceptional circumstances exist justifying the setting aside of the orders and v) whether the Plaintiff’s proper remedy lies by way of appeal rather than by the present applications.

The Plaintiff submits that because he was absent on 17 October 2024 and 7 November 2024, the orders made must be categorised as ex parte. He argues that the right to be heard is fundamental, and the Court ought to have adjourned in light of the medical certificate furnished.

He contends that the omission of the heading “Dalam Mahkamah Tinggi Malaya di Shah Alam” in certain cause papers filed by the Defendant amounted to a fatal jurisdictional defect. According to the Plaintiff, the Court erred in allowing the rectification via Enclosure 18, and that the Plaintiff’s own striking-out application (Enclosure 15) ought to have been granted.

The Plaintiff asserts that the striking-out order against him was draconian, and that his claim ought to be restored and heard on the merits.

The Plaintiff further contends that natural justice requires that an order made without his presence must be set aside as of right under Order 32 rule 6 ROC 2012.

The Defendant submits that the orders were made inter partes, not ex parte. The Plaintiff had full notice, participated in earlier case management stages, sought and obtained extensions, and thereafter simply defaulted. Thus, the matter fell within the scope of Order 32 rule 5 ROC 2012, not Order 32 rule 6.

It is contended that the medical certificate was a tactical afterthought, not a bona fide justification. The certificate was dated 6 October 2024, but no disclosure was made until judgment morning. Further, the certificate does not state incapacity to attend Court on 17 October 2024 nor explain the Plaintiff’s silence.

The Defendant argues that the omission in the heading was non-substantive, did not prejudice the Plaintiff, and that amendment was properly granted under the law.

The Defendant maintains that the Plaintiff’s Statement of Claim was hopeless and the striking-out was warranted. The Plaintiff cannot now re-litigate matters through the backdoor.

The appropriate avenue, if the Plaintiff is dissatisfied, is an appeal.

The key question before this Court is whether the orders dated 7 November 2024 ought to be treated as ex parte orders susceptible to being set aside under Order 32 rule 6 of the Rules of Court 2012. The Plaintiff contends that because he was not present when the Court heard Enclosure 11 or when the Court delivered its decision, the orders must be considered ex parte. Respectfully, such a proposition finds no footing in law. The law does not recognise absence by choice as a basis for converting an inter partes proceeding into one that is ex parte.

To determine this issue, this Court must assess (i) whether the Plaintiff was afforded notice; (ii) whether he had genuine opportunity to be heard; (iii) whether the absence was voluntary or justified; and (iv) whether the Court acted within its powers in proceeding under Order 32 rule 5 ROC 2012. In assessing these issues, the Court is guided by the bedrock principles of procedural fairness, natural justice, and the doctrine of finality.

The chronology is not disputed. The Plaintiff attended earlier case managements and himself sought extensions to file submissions. The Court granted indulgence. Despite this, no submissions were filed. No request for further time was made. No explanation was offered. Then, on the day fixed for hearing, the Plaintiff simply did not appear. Silence and inaction followed until the morning of judgment more than three weeks later. This conduct is wholly inconsistent with the conduct of a litigant desirous of pursuing his claim diligently.

The jurisprudential foundation is clear: the right to be heard is not violated where a litigant, having been accorded notice and opportunity, elects not to avail himself of that opportunity. The right to be heard is a right of reasonable opportunity. It does not entitle a party to abandon the proceedings, only to resurface later and demand a rehearing. In Ridge v Baldwin [1964] AC 40, it was emphasised that natural justice requires the opportunity to be heard, not a guarantee that a party will utilise it. Malaysian courts have consistently adopted this principle.

The Court of Appeal in Karen Yap Chew Ling v Binary Group Services Bhd & Anor [2023] 4 MLJ 792 reaffirmed that there is no breach of natural justice where a litigant has been given a real and reasonable opportunity to be heard but elects not to avail herself of it. At paragragh 25-26, the Court held that the right to be heard is satisfied once notice has been given and the party is afforded the opportunity to attend, give evidence, and be cross-examined; a litigant who chooses not to participate cannot later complain that the proceedings are unfair. The present facts fall squarely within that principle—notice was provided, the opportunity to be heard existed, yet the party defaulted. The Court was therefore fully entitled to proceed in their absence.

In the present matter, the Plaintiff was given ample notice and ample indulgence. He did not file submissions. He did not attend. He did not communicate. The failure lies with the Plaintiff; the Court did not deny him his right.

The Plaintiff relies on a medical certificate dated 6 October

However, it must be emphasised that the certificate predates both the hearing date and the notice fixing the delivery of judgment. Despite having this certificate, the Plaintiff remained silent for over a month. He did not write to the Court, nor file affidavit evidence. The certificate appeared only on the morning of decision. Courts have long recognised the potential for medical certificates to be misused as tactical tools to delay proceedings. The Court is therefore entitled indeed duty-bound to scrutinise such certificates critically.

In Esso Production Malaysia Inc v Aladdin Mohd Hashim [2000] 3 MLJ 270, the Court of Appeal reaffirmed that an application for adjournment is not granted as of right. Adjournment lies wholly within the discretion of the trial judge, who must assess the bona fides, timing, and overall conduct of the party seeking it.

A medical certificate, by itself, does not automatically compel the Court to adjourn proceedings; it is merely one factor to be weighed in the broader interests of justice. Here, the suspicious timing of the certificate and the party’s total silence for more than 30 days raise serious doubts as to good faith. A litigant genuinely prevented from attending would ordinarily notify the registry promptly and seek directions, not resurface belatedly with a medical excuse. The conduct in this case is therefore antithetical to bona fide litigation behaviour, and the refusal of adjournment is fully justified.

Further, the certificate does not state that the Plaintiff was medically unfit to attend Court on 17 October 2024. It merely covers a period before the hearing date. It provides no explanation for non-attendance on the hearing day nor for non-filing of submissions. It therefore has no bearing on the crucial date. Courts do not act on vague or ambiguous medical assertions.

It is equally crucial to consider the statutory framework. Order 32 rule 5 ROC 2012 grants the Court specific power to proceed in the absence of a party once notice has been served. This rule exists to prevent obstruction of the judicial process. The Court cannot permit a party who has elected to be absent to later invoke natural justice as a sword to undo proceedings.

Order 32 rule 6 ROC 2012 does not, in contrast, apply to hearings where notice has been served but a party simply fails to attend. The rule applies where an order was obtained without notice altogether. The present case is thus expressly excluded from the ambit of Order 32 rule 6.

In Al-Mehdawi v Secretary of State for the Home Department [1989] 3 All ER 843, the House of Lords held that there is no denial of natural justice where a party loses his opportunity to be heard through his own fault, or the negligence of his adviser. That reasoning applies with equal force here. A litigant who abandons his obligation to prosecute his own case cannot later assert that he has been denied fairness.

Likewise, the Court cannot condone conduct that reflects a wilful disregard of procedural requirements. Litigation depends on parties complying with established rules, timelines, and directions; when a litigant intentionally ignores these obligations, the integrity of the process is compromised. The justice system cannot function if procedural compliance is treated as optional. There must be finality and order in legal proceedings, and parties cannot expect to revisit or reopen matters simply because they failed to act when they were supposed to. Allowing such conduct would reward indifference, undermine certainty, and erode the discipline necessary for the fair administration of justice.

This Court must also consider public interest in procedural discipline. The administration of justice requires that directions are obeyed, hearings are honoured, and judicial time is respected. To accept the Plaintiff’s proposition would invite chaos: litigants could ignore orders, boycott hearings, and return at their convenience claiming the right to a second chance. Such a precedent would undermine the rule of law and erode the authority of the Court.

The Plaintiff’s secondary argument concerns the heading on the Defendant’s cause papers. The omission was clerical. This Court granted leave to amend under Enclosure 18. Order 1A ROC 2012 commands the Court to give effect to the overriding objective of justice. Courts are guardians of substantive justice, not slaves to rigid technicality. The Plaintiff suffered no prejudice whatsoever. His attempt to invalidate proceedings over a technical heading error is inconsistent with modern civil jurisprudence.

Procedural rules are designed to uphold fairness and ensure that the administration of justice functions in an orderly and reliable manner. They are not meant to operate as technical obstacles or to defeat legitimate claims or defences on the basis of minor irregularities. A purely technical omission does not, by itself, invalidate substantive rights or render proceedings defective unless real and demonstrable prejudice is shown. In the present circumstances, no prejudice whatsoever has been established. The omission relied upon is wholly immaterial to the merits of the case and provides no basis to disturb or delay the proper adjudication of the matter.

In contrast, the Plaintiff’s own pleading was defective. The Statement of Claim failed to disclose any sustainable cause of action. The Court examined it substantively and found it wanting. The striking-out was lawful, justified and consistent with authority. In Bandar Builder Sdn Bhd v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36, the Supreme Court affirmed that pleadings devoid of reasonable cause of action may and should be struck out to prevent abuse and waste of judicial resources.

Natural justice is an anchor of the judicial system. But it does not exist to facilitate manipulation or delay. As Lord Diplock observed in Breen v Amalgamated Engineering Union [1971] 2 QB 175, natural justice is not a phrase with a “magic wand” effect to reopen proceedings.

The Plaintiff’s true avenue of redress, if aggrieved, lies in an appeal to the Court of Appeal under the ROC, not a collateral attempt to reverse a final judicial act by the same Court. To permit otherwise would subvert the appellate hierarchy.

This Court is satisfied that the Plaintiff was afforded more than adequate opportunity. His default was deliberate or negligent, not coerced. The law does not protect deliberate non-participation. It is axiomatic that one cannot approbate and reprobate the litigation process, attending when convenient, ignoring when inconvenient, and then demanding resurrection of proceedings.

Having considered the applicable legal principles, factual chronology, and authorities, this Court finds that no breach of natural justice has occurred, no procedural irregularity exists, and no exceptional circumstances justify setting aside. Finality dictates that the orders of 7 November 2024 must stand.

The Court concluded its findings with a decisive ruling on the matter. It was held that the orders issued on 7 November 2024 were inter partes (binding on the parties) and valid.

Consequently, the remedy sought by the Plaintiff was inappropriate, as Order 32 rule 6 ROC does not apply. The Court specifically found that the Plaintiff was afforded opportunity to be heard but failed to exercise it, confirming that no breach of natural justice occurred. Regarding the medical evidence presented, the Court determined that the medical certificate was neither timely nor credible.

Finally, the judgment affirmed the substance of the Defendant's applications, ruling that the amendment under Enclosure 18 was properly granted and the striking-out under Enclosure 11 was justified. The Plaintiff's proper recourse, the Court emphasized, is an appeal, and not a rehearing disguised as setting aside the orders.

Accordingly, Enclosures 66, 68 and 70 are dismissed. The orders of 7 November 2024 remain valid and binding. Dated this 14 November 2025 -sgd- ………………………………….. Datin Asmah binti Musa Pesuruhjaya Kehakiman Mahkamah Tinggi Malaya Mahkamah Tinggi Shah Alam Plaintiff : Mr. P. Raveentharan a/l A. Periasamy Counsel for Defendant : Mr. Gurdip Sarjit Tetuan Gurdip, Sarjit & Co.