Palaniandy A/L Sadayan v 1. ) Regu A/L Vedy Kaundan (WA-12ANCvC-134-08/2023)

REGU A/L VEDY KAUNDAN (No. K/P: 621102-01-5601)

MANI ARASI A/P CHANDRAN (No. K/P: 661229-10-5248) …RESPONDEN-RESPONDEN (DALAM MAHKAMAH SESYEN DI KUALA LUMPUR DALAM NEGERI WILAYAH PERSEKUTUAN, MALAYSIA GUAMAN NO : WA-A52NCvC-202-03/2019 ANTARA PALANIANDY A/L SADAYAN (No. K/P: 590122-10-6755) …PLAINTIF

DAN REGU A/L VEDY KAUNDAN (No. K/P: 621102-01-5601)

MANI ARASI A/P CHANDRAN (No. K/P: 661229-10-5248)

AAKASH GREEN ENERGY SDN. BHD. (No. SYARIKAT: 1098571-M) …DEFENDAN-DEFENDAN) 30/09/2024 09:34:53 WA-12ANCvC-134-08/2023 Kand. 65 GROUNDS OF JUDGEMENT (APPEALS NO. 133 & 134) (Heard together) INTRODUCTION [1] These two (2) appeals are heard together as both originate from the same civil matter filed at the Kuala Lumpur Sessions Court case No: WA-A52NCvC-202-03/2019 (KLSC Civil Suit). The appeals are against the decisions of the Learned Sessions Court Judge (SCJ) namely-

decision on 20-7-2023 (SC Order) which dismissed the

(ii) decision on 16-8-2023 which struck out the Plaintiff’s application (Enclosure 387) to set aside the SC Order and to restore/reinstate the Writ of Summons and Statement of Claim (Appeal No. 133). [2] For ease of reference, the respective parties shall be referred to as the Plaintiff and Defendants as they were in the Sessions Court. BRIEF FACTS [3] The Plaintiff filed the KLSC Civil Suit for RM125,000.00 with interest and cost. [4] During the trial of the case on 20 July 2023, the Plaintiff was absent but his Counsel attended. The reason for absence was that the Plaintiff was away in Kathmandu, Nepal to perform pilgrimage prayer and seek traditional medical treatment. The Plaintiff has only himself as a witness for his case. [5] The Learned SCJ in her Grounds of Judgement, pointed out her frustration that the trial has been postponed for at least four (4) times and that the date of 20 July 2023 was long fixed since August 2022. [6] Subsequently, the Learned SCJ pronounced her judgement, dismissing the Plaintiff’s claim. [7] It was observed from the Records of Appeal at page 214, that the Plaintiff’s witness statement was filed on 13 July 2023, a week before the full trial but still, the Plaintiff made himself not available on the day of trial. The Plaintiff in his affidavit affirmed on the 4 August 2023 (Affidavit) had confirmed that he was away in Nepal on 11 July 2023. [8] The Plaintiff stated in his Affidavit that he had applied for an adjournment for the trial on 20 July 2023. He further contended that the Court had replied that his Counsel to attend Court on that day. He further stated at paragraph 14 of his Affidavit (at page 41 of the Records of Appeal), that if the Court had replied that no adjournment is allowed, there was a likelihood that he would come back to attend the trial. [9] The Defendants however, objected to the postponement of the trial on 20 July 2023 and were ready with two (2) witnesses. [10] Furthermore, the adjournment was applied by the Plaintiff at the eleventh hour despite the fact that the trial date was agreed upon by both parties about a year ago. The request for adjournment was accordingly refused by the learned SCJ and proceeded with her judgement that dismissed the Plaintiff’s claim. FINDINGS AND ANALYSIS [11] The Federal Court in Lee Ah Tee v. Ong Tiow Pheng & Ors. [1983] 1 MLRA 293, [1984] 1 MLJ 107 held that-

This was not a case of refusing an application for adjournment but a case of refusing to further adjourn the hearing after a number of adjournments granted previously. The judicial commissioner had exercised his discretion correctly in refusing a further adjournment after all the previous adjournments. (paras 8 & 12) Discretion of the Court for Case Adjournment [12] This Court is guided by the case of Lee Ah Tee (supra) where it was held- [9] The discretion of the Judge to allow or refuse an application for adjournment was a subject dealt with in depth by the Court of Appeal in Dick v. Piller [1943] All ER 627. We agree to and adopt the following principles as regards the discretion in allowing or refusing an adjournment:

Whether or not a party should be granted an adjournment is wholly at the discretion of the Judge. He would exercise the discretion solely upon his view of the facts.

Prima facie this discretion is unfettered.

The question to ask in any particular case is whether on the facts there are adequate or sufficient reasons to refuse the adjournment.

Although an appellate Court has power to interfere with the Judge's decision in regard to the granting of an adjournment, it would refrain from doing so unless it appears that such discretion has been exercised in a way which tended to show that all necessary matters were not taken into consideration or the decision was otherwise arbitrarily made.

An appellate Court ought to be very slow to interfere with the exercise of the discretion. But if it appears that the result of the order made below would be to defeat the rights of the parties altogether or that there would be an injustice to one or the other of the parties then the appellate Court has power and indeed a duty to review the exercise of the discretion. [13] Accordingly, Order 35 Rule 1(2) provides that “If, when the trial of an action is called on, one party does not appear, the Judge may proceed with the trial of the action or any counterclaim in the absence of that party, or without trial give judgment or dismiss the action, or make any other order as he thinks fit.”. [14] In Appeal No. 133, the Plaintiff relied on Order 35 Rule 2 of the ROC 2012 to set aside the SC Order. Order 35 Rule 2 is a provision that allows for setting aside of a judgement in absence of party. For clarity, Order 35 Rule 2 stipulates-Judgment given in absence of party may be set aside (O. 35, r. 2)

Any judgment or order obtained where one party does not appear at the trial may be set aside by the Court, on the application of that party, on such terms as it thinks just.

An application under this rule shall be made within fourteen days after the date of the judgment or order sought to be set aside without prejudice, however, to the power of the Court to extend the period.

In considering an application made under this rule, the Court shall have regard to the following matters:

the interest of justice;

whether the absence of the applicant or counsel was deliberate, or due to an accident or mistake;

the prospects of success of the applicant at trial;

whether there is any delay in making the application;

whether the conduct of the applicant has caused prejudice to the other party which cannot be compensated by an order of costs. [15] It was plainly clear that on the day of trial, the Defendants were all ready with their witnesses to give evidence. The only person not attending was the Plaintiff. [16] Accordingly, the learned SCJ struck out Enclosure 387 on the basis that on the day of trial, the judgement was indeed delivered, and the Plaintiff’s claim was dismissed. Thus, it should not have been a set aside application but to appeal. [17] Order 35 Rule 2 provides that in considering an application, the Court shall have regard to the following matters:

the interest of justice;

whether the absence of the applicant or counsel was deliberate, or due to an accident or mistake;

the prospects of success of the applicant at trial;

whether there is any delay in making the application;

whether the conduct of the applicant has caused prejudice to the other party which cannot be compensated by an order of costs. [18] The contention of the Defendants is that the absence of the Plaintiff was deliberate. [19] The Defendants listed out the reprehensible conduct of the Plaintiff as-

failure to abide by the law in filing/service the notice of appeal;

failure to abide by the law in filing/service the appeal record;

failure to extend a copy of the draft appeal record/index to the 1st & 2nd Defendants;

the Plaintiff’s failure to attend the trial on 20/07/2023, despite the trial date being fixed on a date that was agreed upon by the Plaintiff;

having known of the trial date for almost 1 year, the Plaintiff books his ticket for his tour to Nepal, less than 2 months (25/05/2023) before the scheduled trial date on 20/07/2023, intentionally encompassing the trial dates on 20/07/2023 and 21/07/2023, which the Learned SCJ termed as “… tidak bertanggungjawab memandangkan Plaintif sedia maklum tarikh bicara yang telah ditetapkan setahun sebelum itu …”

till today, the Plaintiff has failed to produce any medical certificate, in accordance with the Chief Registrar’s letter dated 20/04/2000, which is in effect till today;

this conduct of the Plaintiff in failing to appear for trial dates or seeking to postpone trial dates is rampant (as noted by the Learned SCJ in her grounds of judgment), where this Plaintiff failed to attend Court for his trial on 18/05/2021, 01/06/2021, 01/09/2021 and wrote to Court for an adjournment of the trial fixed for 08/12/2021, on the grounds that he wanted to file more applications after 2 days of trial on 14/09/2021 and 15/09/2021. [20] This Court is of the view that it is important to take into consideration of the Plaintiff’s conduct. His absence during the trial was evidence of this. In Chuah Tim Lan (supra), it was held- “[25] Non-compliance of the Rules apart, the conduct of the applicant was reprehensible, and this came out strongly as seen by the propensity of the applicant to ignore and disregard the Rules and the above mentioned Practice Directions. It was a conduct that was contumacious to say the least. … Even though the non-service of the sealed motion and supporting affidavit to the respondent's solicitor did not prejudice the respondent in the circumstances of the case, it amplifies the applicant's nonchalance in complying with the Rules.” [21] This Court finds that the Plaintiff’s trip to Nepal was not a circumstance out of his control. Similarly, In Tee Ha Leong v Messrs. Low & Lim & Anor [2005] 4 MLJ 426, the Court rejected the application of the plaintiff for an adjournment, as he failed to attend Court because he wanted to accompany his son for enrolment into the medical faculty in a UK university, The Court held that the reason advanced was not a circumstance beyond the control of the plaintiff. [22] In Tee Ha Leong (supra), it was held- “[27] Having considered the above authorities, which are all made by courts of concurrent jurisdiction, I am of the view that there is a distinction between striking out and dismissing a case. If the case if struck out then O 35 r 2(1) of the RHC can be utilised to apply for reinstatement. But when the case is dismissed, as in this instance case, then the avenue open to the aggrieved party is to appeal. This is based on the rational that the case was already heard on merits.” [23] This was further elaborated in Anne Lim Keng See (trading as Golden Kintex-Sole-proprietorship) v Malayan Banking Bhd [2009] 9 MLJ 502; [2009] 10 CLJ 34; [2009] 1 MLRH 185, it was held- “[18] Upon a perusal of the cases and O 35 r 1(1) and (2) of the RHC, the position can be stated thus. If neither party appears at the hearing, the action may be struck out. However, if one party appears and the court is ready to hear the matter on its merits, then the testimony of all the witnesses present must be heard before a decision is pronounced. In the case where neither the plaintiff nor his or her witnesses are present, then the appropriate order is a dismissal of the action.” [24] It is undisputed that the Plaintiff was absent on the day of trial and it is also apparent that the application for adjournment was never allowed by the Learned SCJ. [25] The appeal to the Federal Court in Lembaga Kemajuan Tanah Persekutuan (FELDA) (supra), was also dismissed where the Federal Court echoed the sentiments of the Court of Appeal. [26] The Defendants contended that the matters for appeal are prejudicial to them as they will have no peace of mind with the civil suit and endless appeals by the Plaintiff hanging over their heads with no resolution as the Plaintiff refuses to proceed to the trial/hearing of the KLSC Civil Suit and endless appeals. [27] The Federal Court in Lembaga Kemajuan Tanah Persekutuan (Felda) & Anor v Awang Soh Mamat & Ors And Another Application [2010] 1 MLRA 88; [2010] 3 CLJ 895; [2010] MLJU 34, held that “gone are the days when the absence of a solicitor or counsel or a party on the hearing date will be looked upon with lenience.”. [28] Prior to the decision of the Federal Court, the Court of Appeal in Lembaga Kemajuan Tanah Persekutuan (Felda) & Anor v Awang Soh Mamat & Ors [2009] 4 MLJ 610; [2009] 2 MLRA 1; [2009] 5 CLJ 1; [2010] 1 AMR 285 held- [18] But when a judgment is entered after a trial has proceeded a different set of rules applies. In the English Court of Appeal case of Shocked & Anor v. Goldschmidt & Ors [1998] 1 All ER 375, the major factors to be considered to set aside such default judgment differ from that in Evans v. Bartlam in the order of priority and prominence. The reason for the absence of the party at the trial has become the "predominant consideration" over that of a defence on merit. This can be observed from the judgment of Leggatt LJ when he said:

Where a party with notice of proceedings has disregarded the opportunity of appearing at and participating in the trial, he will normally be bound by the decision. (2) Where judgment has been given after a trial it is the explanation for the absence of the absent party that is most important: unless the absence was not deliberate but was due to accident or mistake, the court will be unlikely to allow a rehearing. (3) Where the setting aside would entail a complete retrial on matters of fact which have already been investigated by the court the application will not be granted unless there are strong reasons for doing so. (4) The court will not consider setting aside judgment regularly obtained unless the party applying enjoys real prospects of success. (5) Delaying in applying to set aside is relevant, particularly if during the period of delay the successful party has acted on the judgment, or third parties have acquired rights by reference to it. (6) In considering justice between parties, the conduct of the person applying to set aside the judgment has to be considered: where he has failed to comply with orders of the court, the court will be less ready to exercise its discretion his favour

A material consideration is whether the successful party would be prejudiced by the judgment being set aside, especially if he cannot be protected against the financial consequences. (8) There is a public interest in there being an end to litigation and in not having the time of the court occupied by two trials, particularly if neither is short. Breach of the ROC 2012 [29] It was also evidenced that the Plaintiff has breached the provision of Order 55 Rule 3 when the Record of Appeal was served late to the Defendants. [30] In Chuah Tim Lan v RHB Bank Bhd & Anor [2008] 6 MLJ 793; [2008] 9 CLJ 1; [2008] 6 AMR 650, the Court of Appeal held “The non-compliance of the rules in relation to the impugned record of appeal was not an irregularity but a nullity and as such no record of appeal had been filed. …”. CONCLUSION [31] In this regard, for all the reasons aforesaid, this Court finds that there is no merit in the Plaintiffs’ Appeals No. 133 and 134, to warrant appellate intervention. The Learned SCJ did not err in her decision. (See: Ong Leong Chiou v Keller (M) Sdn. Bhd. & Ors. (FC) [2021] 4 MLRA 211; [2021] 3 MLJ 622; [2021] 4 CLJ 821, Tengku Dato’ Ibrahim Petra Tengku Indra Petra v. Petra Perdana Berhad & Another Case (FC) [2018] 1 MLRA 263; [2018] 2 MLJ 177; [2018] 2 CLJ 641, Ng Hoo Kui & Anor v. Wendy Tan Lee Peng & Ors (FC) [2020] 12 MLJ 67; [2020] 6 MLRA 193; [2020] 10 CLJ 1 and MMC Oil & Gas Engineering Sdn Bhd v. Tan Bock Kwee & Sons Sdn Bhd (CA) [2016] 3 MLRA 144; [2016] 2 MLJ 428; [2016] 4 CLJ 665). [32] Therefore, after careful scrutiny and judicious consideration of all the evidence before this Court, including the written and oral submissions of both parties, this Court dismissed both the appeals with cost. -SGD- (DR. SUZANA BINTI MUHAMAD SAID) Pesuruhjaya Kehakiman Mahkamah Tinggi Sivil NCVC1 Kuala Lumpur DATED: 27 SEPTEMBER 2024 COUNSELS FOR THE APPELLANT Tetuan Yusran & Harmel Peguambela & Peguamcara No. 9, Jalan Bahagia 24 Taman Sri Bahagia 56000 Cheras Kuala Lumpur FOR THE RESPONDENTS Tetuan Lim Chong Leong & Subasini Peguambela & Peguamcara No. 11, Jalan D Taman Batu, Jalan Kuching 52000 Kuala Lumpur