Siti Mariati Binti Che Noh v Telekom Malaysia Berhad (JA-11A-2-10/2025)

This appeal arises from the decision of the learned Magistrate delivered on 24 September 2025, allowing the Respondent's application under Order 18 rule 19(1)(b) and (d) of the Rules of Court 2012 ("ROC 2012") and striking out the Appellant's action.

The appeal concerns a relatively narrow but important question of civil procedure, namely whether a plaintiff may, after the expiry of the statutory limitation period, add a new defendant to an existing action and thereafter rely upon the doctrine of relation back to defeat the newly added defendant's accrued limitation defence.

The issue is not novel. It has been the subject of authoritative pronouncement by the Federal Court in Instantcolor System Sdn Bhd v Inkmaker Asia Pacific Sdn Bhd [2017] 2 MLJ 697. The task before this Court is therefore to determine whether the learned Magistrate correctly applied the governing principles to the facts of the present case.

Having considered the Record of Appeal, the Supplementary Record of Appeal, the Grounds of Judgment of the learned Magistrate, the written submissions of parties, the submissions in reply, and the authorities relied upon, this Court is satisfied that no appealable error has been established.

For reasons which follow, the appeal is dismissed.

The material facts are largely undisputed. The Appellant alleges that on 15 November 2018 she was involved in a motor vehicle accident at Jalan Persiaran Indahpura Utama, Kulai. The accident was allegedly caused by a pothole at the material location.

Shortly before expiry of the six-year limitation period, the Appellant commenced proceedings on 12 October 2024 against a company known as Cash Construction & Supplier. Telekom Malaysia Berhad was not named as a defendant in the original writ.

Subsequently, the Appellant filed a Notice of Application dated 14 March 2025 seeking leave to amend the writ and statement of claim to add Telekom Malaysia Berhad as a defendant. The amendment application was allowed on 18 March 2025. Telekom Malaysia Berhad thereby became the second defendant in the proceedings.

Thereafter, the Appellant discontinued the claim against Cash Construction & Supplier, leaving Telekom Malaysia Berhad as the sole remaining defendant. Following the filing of an amended defence, the Respondent applied under Order 18 rule 19 ROC 2012 to strike out the claim on the basis that the cause of action against it was statute-barred.

The learned Magistrate accepted the Respondent's contention and held that the Appellant's claim was time-barred and that the doctrine of relation back was unavailable. The claim was accordingly struck out with costs.

The Appellant contends that the learned Magistrate erred in law and fact in concluding that the action was time-barred.

The Appellant submits that once leave to amend was granted, the amended writ should be treated as if Telekom Malaysia Berhad had been named as a defendant from the outset.

Reliance is placed principally on the Federal Court decision in Sio Koon Lin & Anor v S.B. Mehra [1981] 1 MLJ 225. The Respondent, on the other hand, submits that the learned Magistrate correctly applied the Federal Court decision in Instantcolor System Sdn Bhd (supra) and that the Appellant's claim is plainly unsustainable.

Before considering the substantive issues, it is necessary to identify the proper role of this Court sitting as an appellate court.

The Appellant correctly referred this Court to the decision of the Court of Appeal in Lee Ing Chin @ Lee Teck Seng & Ors v Gan Yook Chin & Anor [2003] 2 MLJ 97.

In Lee Ing Chin (supra), the Court of Appeal stated that an appellate court will not intervene unless the trial court was shown to be plainly wrong in arriving at its decision or where there had been no or insufficient judicial appreciation of the evidence. The principle has been repeatedly affirmed. An appeal is not a rehearing in which the appellate court merely substitutes its own view because it may have arrived at a different conclusion.

Rather, appellate intervention is warranted only where there is demonstrable error in law, misdirection, failure to consider material evidence, consideration of irrelevant matters, or where the decision is plainly wrong.

In the present case, the issue before the learned Magistrate was essentially one of law. The material chronology was not disputed. The critical question was whether the Appellant could rely on the doctrine of relation back to overcome the limitation defence available to the Respondent.

Accordingly, the Appellant bears the burden of demonstrating that the learned Magistrate misapplied the governing legal principles. It is therefore necessary to examine the legal framework within which the striking-out application was determined.

The Respondent's application was brought pursuant to Order 18 rule 19(1)(b) and (d) of the ROC 2012. The relevant limbs permit the Court to strike out a pleading where it is:

frivolous or vexatious; or

otherwise an abuse of the process of the Court.

The principles governing the exercise of this jurisdiction are settled beyond controversy. The leading authority remains Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 4 CLJ 7. The Respondent relied heavily upon Bandar Builder (supra) before both the Magistrate's Court and this Court.

In that case, the Supreme Court stated: "The principles upon which the courts acts in exercising its power under any of the four limbs of O.18 r.19(1) are well settled. It is only in plain and obvious cases that recourse should be had to the summary process under this rule ... and this summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it obviously unsustainable."

The Supreme Court emphasised that striking out is a drastic remedy and should be exercised sparingly. Nevertheless, the same authorities also recognise that where a claim is clearly barred by statute, including by limitation legislation, the claim may properly be struck out without proceeding to trial. A Court is not required to permit a plainly unsustainable claim to proceed merely because pleadings have been filed.

Indeed, one of the recognised purposes of Order 18 rule 19 is to prevent abuse of the Court's process and to avoid unnecessary expenditure of judicial resources on claims which are legally untenable.

The learned Magistrate also relied upon Harapan Permai Sdn Bhd v Sabah Forest Industries Sdn Bhd [2011] 2 MLJ 192. In Harapan Permai (supra), the Court of Appeal reiterated that a pleading may be struck out if it is obviously unsustainable. The Court referred to its earlier observations in Indah Desa Saujana Corp Sdn Bhd v James Foong Cheng Yuen (supra) and observed that there exists a "plethora of weighty authorities" establishing that a claim may be struck out where it is legally unsustainable.

What emerges from these authorities is a consistent principle, that is, where a claim is barred as a matter of law and no factual investigation can alter that conclusion, the claim may properly be struck out.

The present appeal therefore turns on whether the limitation issue was sufficiently clear and decisive to justify summary disposal. If the Respondent acquired an accrued limitation defence which cannot be displaced by amendment, then the learned Magistrate was plainly correct. Conversely, if the doctrine of relation back operated to deem the Respondent to have been sued from the date of the original writ, then the Appellant's action would survive.

The dispute therefore narrows to the interaction between:

Order 20 rule 5 ROC 2012;

the doctrine of relation back; and

section 6(1)(a) of the Limitation Act 1953.

Section 6(1)(a) of the Limitation Act 1953 provides that actions founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued.

The alleged accident occurred on 15 November 2018. The limitation period therefore expired on 15 November 2024. The chronology is important. The original writ was filed on 12 October 2024. However, the Respondent was not named in that writ.

The Respondent only became a party pursuant to the order granting leave to amend on 18 March 2025. By then, the statutory limitation period had already expired. The Respondent therefore contends that it acquired a complete limitation defence which cannot subsequently be defeated by procedural amendment.

The Appellant contends otherwise. According to the Appellant, once leave to amend was granted, the amended writ must be treated as though it had existed from the date of the original writ.

That submission brings into focus the doctrine of relation back and the authorities relied upon by the parties. It is therefore necessary to examine those authorities in detail.

The Appellant's principal argument is founded upon Order 20 rule 5 of the ROC 2012 and the common law doctrine of relation back.

Learned counsel for the Appellant submits that once leave to amend was granted, the amended writ and statement of claim must be treated as having existed from the commencement of the action.

According to the Appellant, the amendment adding Telekom Malaysia Berhad should therefore be regarded as taking effect from 12 October 2024, namely the date of the original writ.

If that proposition is correct, the action against the Respondent would have been commenced before expiry of the limitation period.

The difficulty with the Appellant's submission is that it overlooks the distinction between:

amendments affecting existing parties already before the

amendments introducing an entirely new defendant after limitation has accrued.

The distinction is fundamental. It lies at the heart of the Federal Court's decision in Instantcolor System Sdn Bhd (supra).

The Appellant places considerable reliance upon Sio Koon Lin & Anor v S.B. Mehra [1981] 1 MLJ 225. That reliance is understandable. Sio Koon Lin (supra) contains statements recognising the general principle that an amendment, once allowed, ordinarily takes effect retrospectively. The Appellant argues that this principle applies equally to the present case.

With respect, this Court is unable to agree. As correctly submitted by the Respondent, Sio Koon Lin (supra) did not concern the addition of a new defendant after expiry of a limitation period.

The issue before the Federal Court in Sio Koon Lin (supra) was whether the amendment introduced a new cause of action that did not exist at the date of the writ.

The case was therefore concerned with a fundamentally different legal problem. It did not involve a defendant who had acquired an accrued limitation defence. More importantly, it did not involve the question whether a plaintiff could use an amendment to circumvent a statutory limitation period by introducing a new party after limitation had expired.

The Respondent is therefore correct in submitting that Sio Koon Lin (supra) is distinguishable on its facts and legal context. Indeed, the Respondent's submissions accurately identify the critical distinction in that the Sio Koon Lin (supra) case was not at all about introducing a new party to the claim through an amendment, which is the present case.

In this Court’s view, that distinction is decisive. The controlling authority is Instantcolor System Sdn Bhd v Inkmaker Asia Pacific Sdn Bhd (supra).

Unlike Sio Koon Lin (supra), Instantcolor (supra) dealt directly with the effect of adding a new defendant after expiry of the limitation period.

The Federal Court considered the scope of Order 20 rule 5 and whether the doctrine of relation back could be relied upon to defeat an accrued limitation defence. After an extensive review of the authorities, the Federal Court held: "[32] In the present case the second defendant was added as a co-defendant pursuant to the application of the plaintiff after expiry of the limitation period. This fact is not in dispute. Reading the provision of O 20 r 5 of the RHC 1980 the power of amendment does not extend to the amendment of adding a new defendant after the expiry of the relevant limitation period. To borrow the words of Lord Denning MR in Sterman, '... it is a strict rule of the court that no amendment can be allowed which would deprive the defendant of the benefit of the Statute of Limitations'. Therefore, the doctrine of relation back as envisaged under r 5(2) is not applicable to an amendment to join the second defendant as a co-defendant."

The Federal Court could not have expressed the principle more clearly. The doctrine of relation back does not apply where the amendment seeks to add a new defendant after limitation has expired. The reason is equally clear. A limitation defence is not merely procedural. It is a substantive legal right. Once accrued, it cannot be removed by procedural amendment.

The Federal Court continued: "[42] ... we hold that the doctrine of relation back is not applicable to the facts of the present case. We also hold that the joinder of second defendant as a co-defendant in the present proceedings is to take effect in law on the date of the court order ... adding it as a party, not retrospectively to the date of the commencement of the action against the first defendant."

Again, the proposition is directly applicable to the present appeal. Here, Telekom Malaysia Berhad was not named in the original writ. It only became a defendant pursuant to the order dated 18 March 2025.

Applying Instantcolor (supra), the action against the Respondent must therefore be regarded as having commenced on 18 March

By that date, the limitation period had already expired. The Respondent consequently acquired a complete limitation defence.

The Appellant submits that Instantcolor (supra) is distinguishable because the amendment in that case occurred approximately eight years after commencement of the proceedings, whereas the present amendment occurred after a considerably shorter interval. With respect, that distinction is immaterial.

The Federal Court's ratio was not based upon the number of years that had elapsed after commencement of the action. Rather, it was based upon the fact that the new defendant was added after expiry of the limitation period. Whether the amendment occurred one month, one year or eight years after expiry of limitation is not the point.

The operative question is whether the defendant had already acquired a limitation defence at the time of joinder. In the present case, the answer is plainly yes. The Respondent was joined only after the six-year limitation period had expired. The distinction advanced by the Appellant therefore does not undermine the applicability of Instantcolor (supra).

The Respondent also relies upon Lin Wen-Chih & Anor v Pacific Forest Industries Sdn Bhd & Anor (supra). Although arising in a different factual context, the decision reinforces an important principle.

Limitation statutes are enacted to promote certainty and finality in litigation. Once limitation has expired, a defendant acquires a substantive legal protection. Courts should therefore be slow to permit procedural mechanisms to circumvent statutory limitation periods.

To hold otherwise would undermine the legislative policy embodied in section 6 of the Limitation Act 1953. The present appeal illustrates precisely why the principle is necessary. The Appellant commenced proceedings against one entity within the limitation period. Subsequently, after limitation had expired, the Appellant sought to introduce a completely different party and thereafter discontinued the action against the original defendant.

If the Appellant's argument were accepted, any plaintiff could effectively preserve claims indefinitely by suing one party before expiry of limitation and later substituting another party after limitation had accrued.

Such a result would be wholly inconsistent with the purpose of the Limitation Act 1953. It would also be contrary to the Federal Court's pronouncement in Instantcolor (supra).

Against this legal background, it is difficult to identify any error in the learned Magistrate's reasoning. The learned Magistrate correctly identified the material dates, correctly recognised that the Respondent was added after expiry of limitation, and correctly concluded that the doctrine of relation back was unavailable. Most importantly, the learned Magistrate correctly applied the ratio of Instantcolor (supra).

Once that conclusion was reached, the result was inevitable. The claim against the Respondent was statute-barred, and the action was therefore legally unsustainable.

The learned Magistrate was fully entitled to conclude that the claim fell within the principles articulated in Bandar Builder and Harapan Permai (supra). In those circumstances, striking out was not merely permissible, it was the correct course.

Having considered the Record of Appeal, the Grounds of Judgment of the learned Magistrate, the submissions of parties and the authorities relied upon, this Court is satisfied that the learned Magistrate committed no error of law or principle warranting appellate intervention.

The factual chronology is straightforward and largely undisputed. The cause of action arose on 15 November 2018. The six-year limitation period prescribed by section 6(1)(a) of the Limitation Act 1953 expired on 15 November 2024.

While the Appellant commenced proceedings against Cash Construction & Supplier before the expiry of that limitation period, Telekom Malaysia Berhad was not named as a defendant in the original writ.

The Respondent only became a party to the proceedings pursuant to the order granting leave to amend on 18 March 2025. By then, the statutory limitation period had already expired. The Respondent therefore acquired a complete limitation defence under section 6(1)(a) of the Limitation Act 1953.

The Appellant's attempt to invoke the doctrine of relation back cannot succeed in light of the Federal Court's decision in Instantcolor System Sdn Bhd (supra). This Court is bound by that decision.

The Federal Court expressly held that the doctrine of relation back is not applicable where a plaintiff seeks to add a new defendant after expiry of the limitation period and that the joinder takes effect only from the date of the order adding the defendant as a party. The facts of the present appeal fall squarely within that principle.

Conversely, Sio Koon Lin & Anor (supra) does not assist the Appellant. As discussed earlier, that case concerned amendments to pleadings and causes of action and did not involve the joinder of a new defendant after limitation had accrued. The Respondent is therefore correct in submitting that the authority is distinguishable.

Once Instantcolor (supra) is applied, the conclusion becomes unavoidable. The claim against Telekom Malaysia Berhad was commenced only upon its joinder on 18 March 2025. The action against the Respondent was therefore commenced after expiry of the limitation period. In those circumstances, the Respondent's limitation defence is complete and unanswerable.

The Court is mindful that striking out is a drastic remedy and that the principles in Bandar Builder (supra) require caution before terminating proceedings summarily. However, Bandar Builder (supra) itself recognises that where a claim is plainly and obviously unsustainable, the Court is entitled to invoke Order 18 rule 19.

A claim that is clearly barred by statute is one such example. No amount of evidence at trial can alter the legal consequence that the Respondent was only joined after limitation had expired. The issue is therefore not evidential but legal. In such circumstances, a trial would serve no legitimate purpose.

The learned Magistrate was therefore correct in concluding that the action was plainly unsustainable and liable to be struck out.

For all the reasons set out above, this Court finds that:

the learned Magistrate correctly identified and applied the relevant legal principles;

the Respondent was joined as a defendant only after the expiry of the limitation period prescribed by section 6(1)(a) of the Limitation Act 1953;

the doctrine of relation back is unavailable in light of the Federal Court's decision in Instantcolor System Sdn Bhd (supra);

Sio Koon Lin & Anor (supra) is distinguishable on the facts and does not assist the Appellant;

the Respondent acquired a complete limitation defence which cannot be defeated by amendment; and

the Appellant's claim against the Respondent is plainly unsustainable and liable to be struck out pursuant to Order 18 rule 19 of the Rules of Court 2012. 20 75. Accordingly, the appeal is dismissed.

The order of the learned Magistrate dated 24 September 2025 allowing the Respondent's application under Order 18 rule 19(1)(b) and (d) of the Rules of Court 2012 is hereby affirmed.

Costs of the appeal in the sum of RM5,000.00 are awarded to the Respondent, subject to allocatur. Dated: 10th June 2026 -sgd- …………………………………………. (BUDIMAN LUTFI BIN MOHAMED) JUDICIAL COMMISSIONER HIGH COURT, JOHOR BAHRU Solicitors for the Appellant : Messrs S. Satheesan & Co. No. 7.03 & 7.03A, Susur 1/1 Off Jalan Tun Abdul Razak 80888 Ibrahim International Business District Johor Darul Ta’zim Solicitors for the Respondent : Messrs Jayadeep Hari & Jamil Suite 2.03, 2nd Floor, Block A No. 45, Jalan Medan Setia Satu Plaza Damansara Bukit Damansara 50490 Kuala Lumpur Wilayah Persekutuan