P. Thiagarajan A/L Pavadai v Pasupathy A/L Gopalsamy (Berdagang Sebagai Thisaigal Tv) (WA-23CY-6-02/2022)

PASUPATHY (TRADING AS THISAIGAL TV) [Mobile No.: +6016-669 9162]

SENGGUTUAN A/L VEERAN … DEFENDANTS GROUNDS OF DECISION [Encl. 82: Plaintiff's Application to Amend Writ and

This is the Notice of Application by the Plaintiff filed on 20.8.2025 under Order 20 rule 5 and Order 92 rule 4 of the Rules of Court 2012 for the following orders:

That the Plaintiff be granted leave to amend the Writ and Statement of Claim both dated 25.1.2022 as shown in Annexure A and B, respectively that is annexed together with this notice of application.

Costs be in the cause;

and such other and further reliefs as this Court may deem fit and proper.

The grounds of this application are as follows:

The application seeks to add the surname/father’s name of the 1st Defendant in the Defendant’s name appearing at the intitulement and to add “/in the brand name of” after “trading as” and before “Thisaigal TV” in the description of the 1st Defendant there - both in the Statement of Claim and Writ. This is to render it complete as per his NRIC. There is no prejudice to the 1st Defendant by this amendment, which does not cause any substantive change, as he always knew the claim was addressed to him, entered appearance, and defended the claim as the 1st Defendant without any objection on this point, and acknowledged himself as the owner of Thisaigal TV at the material time. At the time the action was filed, the 1st Defendant's full name as per his NRIC was not available to the Plaintiff, nor did the 1st Defendant gave that in response to the pre-action letter dated 1.11.2021 issued by Arun Kasi & Co on behalf of the Plaintiff.

The application also seeks to correct a typographical error by adding “not” before “selected” in the fourth sub-paragraph of the first paragraph 7 of the statement of claim, which provides a written translation in English of the alleged defamatory broadcast. This was a genuine typographical error and caused no confusion to the 1st Defendant as his version of the translation itself has the “not” and he effectively pointed out this error in his pleading, and effectively the Plaintiff conducted the trial on the basis that the “not” is added there. As such, there is no prejudice to the 1st Defendant by the amendment.

The application seeks to prefer the spelling of “Vanniar” to “Vanniyar” or “Vanieer” (all referring to the same Tamil caste) to refer to the Tamil caste in the English translation of the broadcast included in the Statement of Claim, for consistency between the registration certificate of the relevant association “Persatuan Kebajikan Vanniar Malaysia”. There is no prejudice to the 1st Defendant by this as both refer to the same caste without any confusion and effectively sound alike, and they are different spellings with which one may write down the word with English alphabets when the word is originally pronounced in Tamil.

The application seeks to include the transcript in Tamil and Bahasa Malaysia translation of the broadcast via two annexures (Annexure 1 and 2) to the Statement of Claim. There is no prejudice to the 1st Defendant by this as the English translation of the relevant defamatory statement was provided in the Statement of Claim, and also the Bahasa Malaysia version and Tamil transcript were subsequently provided in the bundles of documents. Further, the 1st Defendant himself provides his version of the Bahasa Malaysia translation in the bundles of documents. The proposed annexure now for Tamil transcript adopts the version already included in the bundle and not rebutted with any alternative version from the 1st Defendant. The proposed annexure now for the Bahasa Malaysia translation adopts the 1st Defendant’s version in the bundles subject to a caveat that the word “Vanniyar” there referring to the caste may be spelled “Vanniyar” or “Vanniar” or “Vanieer”.

The proposed amended version of the Statement of Claim also incorporates two cosmetic corrections of typographical nature, allowed or made during the trial, namely changing the word “case” to “caste” in the English translation appearing at the first paragraph 7, and renumbering the second paragraph 7 as “7A”.

The proposed amendments are made bona fide, do not change the character of the suit, and cause no prejudice to the 1st Defendant that cannot be compensated by cost.

All other grounds as appearing in the affidavit in support of this application.

The cause papers filed in relation to Encl. 82 are as follows:

Plaintiff’s Affidavit in Support of the Plaintiff filed on 20.8.2025 (Encl. 83) and Reply Affidavit of the Plaintiff filed on 18.9.2025 (Encl. 88);

1st Defendant’s Affidavit in Reply filed on 2.9.2025 (Encl. 88);

Plaintiff’s Written Submissions filed on 6.10.2025 (Encl. 94), Bundle of Authorities (Encl. 95), Reply Submissions (Encl. 103) filed on 17.10.2025 and Bundle of

1st Defendant’s Written Submissions filed on 6.10.2025 (Encl. 96), Bundle of Authorities (Encl. 97), Reply Submissions (Encl. 101) filed on 17.10.2025 and Bundle of Authorities (Encl. 102);

The trial for this action commenced on 18.8.2025 and concluded on 20.8.2025. The Court struck off the case against the 2nd Defendant without liberty to file afresh and with no order as to costs as the Plaintiff withdrew the case against the same on 18.8.2025 (Encl. 89). The case is now fixed for Oral Submissions post trial.

The Plaintiff’s submissions in a nutshell are as follows:

Amendment to have 1st Defendant name in full the Writ and Statement of Claim. The amendment sought is to better describe it as per his NRIC (National Registration Identity Card) a more complete the description of his relation to Thiasigal TV as follows: “PASUPATY A/L GOPALSAMY (BERDAGANG SEBAGAI/DENGAN NAMA JENAMA

Clerical Corrections para 7, 8 and Translation of the Alleged Defamatory Statement.

the addition of the word ‘not’ before selected in the 4th paragraph of paragraph 7 of the Statement of Claim to read as follows: “When the situation is like that, because another candidate for the post who was a Vanniyar not was selected, the said candidate pleaded to the Klang based Vanniyar.”

(ii) a further clerical amendment concerns the spelling “Vanieer” and “Vanniyar” of paragraph 8 of the Statement of Claim to read as follows: “Pemimpin Persatuan Vanniar yang mempunyai Omam dan berpangkalan di Klang, yang disebut dalam siaran di atas, ialah Plaintif yang pada setiap masa material menjadi Presiden Persatuan Vanniar Malaysia (Malaysian Vanniar Welfare Association) [Persatuan] dan berpangkalan di Klang.”

Inclusion of Transcript in Tamil and Bahasa Malaysia Translation of the Broadcast via Two Annexures (Annexure 1 and Annexure 2) Annexure 1 – the Tamil transcript of the broadcast; and Annexure 2 – the Bahasa Melayu translation.

The proposed amendments are made bona fide and are limited to clerical corrections or formal amendment, consistency in the spelling and translation and the inclusion of transcripts which were part of the Common Bundle.

Amendments sought after trial may be permitted where no prejudice arises that cannot be compensated by costs. The amendments serve only to ensure consistency and accuracy in the record. 1st Defendant Submissions (Encl. 96 and 105)

The 1st Defendant opposes this application on the basis that it is a mala fide attempt to add the alleged verbatim Tamil transcript and Bahasa Malaysia translation which was not in the Statement of Claim thus to improve the Plaintiff’s pleaded case. The application was filed very late in the day after the conclusion of the trial.

The 1st Defendant opposes the proposed amendments on the grounds as follows:

The said amendment application is an afterthought, mala fide and an abuse of process of Court;

The proposed amendments to the pleadings are a tactical manoeuvre, to add and to improve the pleadings and if allowed the Plaintiff will enjoy an unfair advantage;

The Plaintiff has not justified or provide any reasonable explanation as to the delay in filing for the amendment application; and

The prejudice caused by this application to the 1st Defendant cannot be compensated by costs and time.

Order 20 rule 5 of the Rules of Court 2012 is the relevant law governing the amendment of pleadings with leave of court. “Amendment of writ or pleading with leave (O. 20 r. 5)

(1) Subject to Order 15 rules 6, 6a, 7 and 8 and the following provisions of this rule, the Court may at stage of the proceedings allow the Plaintiff to amend his writ, or any party to amend his pleading on such terms as to costs or otherwise as may be just and in such a manner, if any, as it may direct.”

The Federal Court in Yamaha Motor Co. Ltd v. Yamaha Malaysia Sdn. Bhd. & Ors [1982] 1 MLRA 417 at p. 418 outlined the general principle when the Court will allow such amendments as will cause no injustice to the other parties as follows: “Three basic questions should be considered to determine whether injustice would or would not result,

whether the application is bona fide;

whether the prejudice caused to the other side can be compensated by cost; and

whether the amendments would not in effect turn the suit from one character into a suit of another and inconsistent character.”

The Federal Court in the case of Hong Leong Finance Bhd. v. Low Thiam Hoe & Another Appeal [2016] 3 MLRA 81 at p. (para. 18) decided as follows: “Nowadays the court recognizes especially under the new case management regime that a different approach needs to be taken to prevent delay in the progress of a case to trial and for its completion. The progress of the case is no longer left in the hands of the litigants but with the court in the driver’s seat. (see the case of Syed Omar Syed Mohamed v. Perbadanan Nasional Berhad [2013] 1 MLRA 181) In particular when an application to amend the pleading is made at a very late stage as was done in the present case, the principles in Yamaha Motor Co. Ltd v. Yamaha Malaysia Sdn. Bhd. & Ors [1982] 1 MLRA 417 ought not to be the sole consideration. This is because an order for compensation by payment of costs in such a case may not be an adequate remedy and it would also disrupt the administration of justice which affects the courts, the parties and the other users of the judicial process.”

The Court of Appeal in the case of Public Bank Bhd. v. National Feedlot Corporation Sdn. Bhd. & Ors. and Another Appeal [2018] 6 MLRA 495 at p. 504 decided as follows: “[15] What perhaps is of prime importance is for litigating parties to comprehend and accept that the conduct of litigation has changed substantially since 2009. The difference in approach is that where litigation was once conducted at the pace and manner dictated by advocates and solicitors, the emphasis has changed such that it is now the courts that steer the conduct of litigation so as to ensure a just, expeditious and economic disposal of matters. This means that time is not at large and costs are an important consideration while the primary goal of ensuring that justice is meted out is not compromised. [16] The goal of a just judgment or decision, coupled with an expeditious and economical disposal are not mutually exclusive. On the contrary, these objectives complement and serve each other well. This new approach is reflected in our Rules of Court 2012. Intrinsic to the scheme of how matters are conducted is the proper management of a case, as it greatly affects the progress of litigation generally. A failure to carry out a material step or inaction ought not to be condoned, and can of itself be penalised, even if it does not give rise to adverse consequences on the litigation itself.”

In the case of Lim Leong Hock v. Hua Hang Shipping & Trading (M) Sdn. Bhd. & Ors [2025] CLJU 1887, the High Court decided as follows: “[82] Courts require the original defamatory statement in this original language and a certified translation into Bahasa Malaysia as per Order 92 Rule 1 of the Rules of Court 2012 to ensure accuracy for assessment. The alleged defamatory words as uttered must be reproduced in verbatim in the statement of claim and a certified translation must be tendered. [89] However, this Court is of the view that it is not sufficient to submit the translation and submit it as an annexure only and not in the pleadings.”

The Court of Appeal in the case of Rekha d/o Munisamy v. Ortus Expert White Sdn. Bhd. & Anor. [2021] 7 CLJ 353 decided as follows: “[50] The statutory provisions and case law authorities as narrated above, relied upon by the defendant on this point are quite clear in requiring such translation to be made by the plaintiffs. These are cogent authorities supporting the defendant’s contention that the alleged defamatory statements must be translated into Bahasa Melayu.”

The High Court in the case of Hiroto Watanabe v. Law Yen Yen [2012] 8 MLJ 2002 at para. 44 decided as follows: “[44] Order 20 r 5 … This rule implies that an amendment ought to be allowed if such amendment causes no prejudice or injustice which cannot be compensated by costs or other means.”

I have perused and deliberated the Affidavits in Support, Written Submissions and Authorities filed by the Plaintiff and Defendant. I have heard and considered the Oral Submissions and Arguments forwarded and articulated by the respective parties’ counsel.

By Encl. 82, the Plaintiff seeks leave to amend the Writ and Statement of Claim dated 25.1.2022, pursuant to O. 20 r. 5 and/or O. 92 r. 4 of the Rules of Court 2012. Encl. 82 was filed on 20.8.2025 on the final day of the trial. Whether the application was made bona fide

The Plaintiff argued that the proposed amendments are bona fide and they are limited to clerical or formal amendments, consistency in spelling and translation and the inclusion of transcripts which are already part of the Common Bundles. Whether the prejudice caused to the other side can be compensated by cost

The proposed amendments sought after trial may be permitted where no prejudice arises that cannot be compensated by costs. (see Hiroto Watanabe (supra)) The amendments serve only to ensure consistency and accuracy in the record.

The Plaintiff’s counsel referred to the case of Lim Sek Cheon v. Ng Kah Seng @ Ng Kai Seng [2024] MLJU 3160 where the High Court decided that the proposed amendment merely seeks to include the translation of the impugned defamatory statements in the Malay language. It does not introduce any new or fresh facts or issues that would necessitate a response from the Defendant.

The 1st Defendant’s counsel referred to the case of Conlay Construction Sdn. Bhd. v. Perembun (M) Sdn. Bhd. [2013] 9 CLJ 828 where the Federal Court decided as follows: “[16] We will now deal with Question No. 3 posed before this court on the issue of amendment made at the trial after close of evidence given by both parties. [17] The learned trial judge was mindful of the fact that this was an amendment that was made late in the day after the witnesses have been called to give evidence and tested by cross-examination and the parties had closed their case. [18] The learned trial judge in our view in any event was correct in so far as the merits of the case were concerned in refusing the defendant’s application for amendment.” Whether the amendments would not in effect turn the suit from one character into a suit of another and inconsistent character?

The Plaintiff submits that the amendments are formal and technical in nature and does not necessitate any reopening of the case, recall of witnesses or additional evidence. The Court will need to consider whether the changes alleged in the amendment sought to be made are the same or substantially the same as those alleged to support a cause of action already pleaded. (see Bu Yaw Seng & Anor. v. Chin Kim Yong & Ors [2021] CLJU 2476) Concession by 1st Defendant

The 1st Defendant conceded to the Proposed Amendment in the interest of justice as reflected in para. 5 of the 1st Defendant’s Reply Submissions (Encl. 101) as follows:

amendment to the 1st Defendant’s name in the intitulement;

amendment to the word “case” to “caste” (para. 7);

renumbering the second paragraph 7 to 7A. Amendment to have 1st Defendant name in full the Writ and Statement of Claim.

The Court allowed the Plaintiff’s application to add the surname/father’s name of the 1st Defendant in the 1st Defendant’s name appearing at the intitulement and to add “/in the brand name of” after “trading as” and before “Thisaigal TV” in the description of the 1st Defendant both in the Statement of Claim and Writ. Clerical Corrections para 7 Statement of Claim

The Court allowed amendment to the word “case” to “caste” (para. 7 Statement of Claim) and the renumbering of the second paragraph 7 to 7A to the Statement of Claim. Objection to the other Proposed Amendments

The 1st Defendant objected to the Proposed Amendment as reflected in para. 6 of the 1st Defendant’s Reply Submissions (Encl. 101) as follows:

To add the word “not” in the alleged defamatory statement in the first paragraph 7 of the Statement of

Inclusion of Transcript in Tamil and Bahasa Malaysia Translation of the Broadcast as reflected in Annexure 1 and Annexure 2 to the Statement of Claim; and

Amendment to regularise the spelling of the caste “Vanniyar” and “Vanieer” to “Vanniar” in paragraph 8 of the Statement of Claim. Tactical Manoeuvre, Prejudicial and Abuse of the Court’s Process

The Court have to take into consideration whether the amendment application was made as a tactical manoeuvre when Encl. 82 was filed on the 3rd day of the trial preceding the conclusion of the trial on the even day. The burden is on the Applicant (the Plaintiff in this case) to furnish a reasonable explanation for such delay. see Hong Leong Finance Bhd. case (supra).

The Court is inclined to agree with the 1st Defendant’s Submissions in Reply (para. 17) that if the Plaintiff is allowed to rectify the rectify the omission of the word “not” in paragraph 7 of the Statement of Claim, this would deprive the 1st Defendant the opportunity to defend and prove the inaccuracy of the Plaintiff’s English translation of the alleged defamatory broadcast hence prejudicing the 1st Defendant’s defence.

I am of the considered view that there was no reasonable explanation or justification for the proposed amendments. Be that as it may, it is therefore crystal clear that in the absence of any cogent and reasonable explanation for the filing of Encl. 82 at a stage when the trial was nearing conclusion on the even date, the Plaintiff has failed to discharge the burden on a balance of probabilities. Court or Judge shall have regard to Justice

Order 1A of the Rules of Court 2012 reads as follows: 1A Regard shall be to justice (O 1A) “In administering these Rules, the Court or a Judge shall have regard to the overriding interest of justice and not only to the technical non-compliance with these Rules”

I am mindful of the provisions in Order 1A and Order 2 rule 3 of the Rules of Court 2012 have been further fortified to ensure that this application (in this case Encl. 82) is heard on its merits.

The Court must consider the overriding interest of justice and not only the technical non-compliance of the rules. (see Redang Paradise Vacation Sdn Bhd v. Yap Chuan Bin and other appeals [2017] 5 MLJ 35 para. 5 Court of Appeal).

The established law on the amendment of pleadings in Order 20 rule 5 ROC 2012 must be dealt with if the Court were to allow the Plaintiff to amend his writ, or any party to amend his pleading on such terms as to costs or otherwise as may be just and in such a manner, if any, as it may direct.

In this instant application, the Court in exercising its discretion based on the principle of justice hereby finds that the Plaintiff’s application on the proposed amendments in respect of paragraph 23 (a), (b) and (c) cannot be allowed. (see the case of Bukit Kiara Properties Services Sdn. Bhd. v. Gunalan & Associates & Verve Suites Mont’ Kiara Management Corporation (VSMKMC) [2025] CLJU 1829 at paras 29 & 30 High Court)

In this regard, the Court is inclined to agree with the 1st Defendant’s submissions that the Plaintiff’s application to amend at this late stage tantamount to an abuse of the process of Court. Summary of Court’s analysis

The Court allowed the proposed amendments as follows:

amendment to the 1st Defendant’s name and Identity Card No. (Pasupathy a/l Gopalsamy I/C No. 800910-14-6515) and to add “/in the brand name of” after “trading as” and before “Thisaigal TV” in the description of the 1st Defendant both in the Writ and Statement of Claim.

amendment to the word “case” to “caste” (para. 7); and

renumbering the second paragraph 7 of the Statement of Claim to paragraph 7A.

The Court dismissed the proposed amendments as follows:

To add the word “not” in the alleged defamatory statement in the first paragraph 7 of the Statement of

Inclusion of Transcript in Tamil and Bahasa Malaysia Translation of the Broadcast as reflected in Annexure 1 and Annexure 2 to the Statement of Claim [see the case of Rekha d/o Munisamy (supra)]; and

Amendment to regularise the spelling of the caste “Vanniyar” and “Vanieer” to “Vanniar” in paragraph 8 of the Statement of Claim.

Based on the reasons adumbrated above, the Plaintiff’s Application to amend the Writ and the Statement of Claim in Encl. 82 is hereby allowed in part (subject to paras. 35 and 36 above). Each party to bear their own cost. Dated: 10 November 2025 Sgd ………………………………………….. (EDDIE YEO SOON CHYE) Judicial Commissioner High Court of Malaya Kuala Lumpur Counsel for the Plaintiff: Dr. Arun Kasi & Linda Alisbert Messrs. Arun Kasi & Co. Kuala Lumpur. Counsel for the 1st Defendant: Paramjothy Pahavan Messrs. P Paramjothy & Co. Kuala Lumpur.