Lampiran
Lampiran 45); 6. kos; dan 7. relif-relif lain dan/atau perintah-perintah lain sebagaimana yang dianggap wajar oleh Mahkamah Yang Mulia ini. Enclosure 53 MAKA ADALAH PADA HARI INI DIPERINTAHKAN bahawa:- [a] Permohonan Plaintif di bawah Lampiran 41 dibenarkan; [b] Pernyataan Pembelaan Dan Tuntutan Balas Defendan bertarikh 30 April 2021 dibatalkan; [c] Penghakiman dimasukkan terhadap Defendan sepertimana yang dituntut dibawah perenggan-perenggan 17(a), 17(b) dan 17(c) dalam Pernyataan Tuntutan Plaintif bertarikh 31 Mac 2021; dan [d] Defendan hendaklah membayar kepada Plaintif kos sebanyak RM1,000.00. Bertarikh pada 6 Jun 2023 Enclosure 52 MAKA ADALAH PADA HARI INI DIHAKIMKAN bahawa Defendan hendaklah membayar kepada Plaintif seperti yang berikut:- [a] wang jumlah sebanyak RM21,000.00 {yang terdiri daripada RM18,000.00 sebagai "Security Deposif' dan RM3,000.00 sebagai "Utilities Deposit'; [b] faedah di bawah Aturan 42 Kaedah 12 Kaedah-Kaedah Mahkamah 2012 pada kadar 5% setahun dari tarikh penghakiman sehingga tarikh penyelesaian sepenuhnya; dan S/N x9a64jafhUeQ/gFD3SnqHg [c] Kos sebanyak RM2428.00. Bertarikh pada 6 Jun 2023 [2] The parties will be referred to as Plaintiff and Defendant in this judgement. B. BACKGROUND CASE [3] The Plaintiff’s case against the Defendant at the Magistrate Court was for the return of the Security Deposit and Utilities Deposit amounting to RM21,000.00. During the case management, the Plaintiff filed an application to strike out the Defendant’s Statement of Defence and Counterclaim dated 30.4.2021 at Enclosure 41. Upon hearing the application, the learned Magistrate allowed the Plaintiff’s application and enter judgement against the Defendant as per Enclosure 52 and 53. [4] Dissatisfied with the decision, the Defendant then filed for an application under Enclosure 54 to set aside the Order dated 6.6.2024 and Judgement dated 6.6.2023. Upon hearing Enclosure 54, the learned Magistrate dismissed the Defendant’s application and now the Defendant appeal to this Court. C. THE APPELLANT/DEFENDANT SUBMISSION [5] The Defendant submitted that the Magistrate dismissed Enclosure 41 based on non-compliance under Order 34 Rule 2(4) Rules of Court 2012. There was no unless order or peremptory order was made by the Magistrate regarding to the non-compliance with pre-trial directions by the parties at all material times, in particular during the case S/N x9a64jafhUeQ/gFD3SnqHg management via e-review on 3.1.2024 in failing to file the witness statement. According to the Defendant, in the absence of the unless order or a peremptory order, the application to set aside the Order and the Judgement at Enclosure 41 under Order 34 Rule 2(4) is proper mode and in accordance with the provisions of the law rather than filing an appeal. The Defendant has already provided cogent explanation in resepct of the delay in the filing of the witness statement. Moreover, no objection was raised by the Plaintiff’s solicitor regarding the Defendant’s delay in filing the Defendant’s witness statement at any material times, and thus, the filing of Enclosure 41 by the Plaintiff’s solicitor was clearly motivated by malice. [6] The delay was not intentional, excessive, or inexcusable, and there was no deliberate non-compliance with the pre-trial directions by the Defendant. The Plaintiff was also not prejudiced by the delay in filing the Defendant’s witness statement, and if there was any prejudice, it can be compensated with costs. Order 83 Rule 2(4) and Order 34 Rule 1(3) of the Rules of Court 2012 are not mandatory and are curable, and this Court has its inherent powers to prevent injustice or to prevent an abuse of the court’s process. D. THE RESPONDENT/ PLAINTIFF’S SUBMISSION [7] In view that the merits of the Enclosure 41 were heard and decided by the Court, the Plaintiff submits that the Magistrate Court is therefore functus officio upon the pronouncement of the said Order and Judgement under Enclosure 41. This is supported by the case of PLENITUDE HOLDINGS SDN BHD v TAN SRI KHOO TECK PUAT & ANOR [1993] 2 MLJ 469 where the Court held that: S/N x9a64jafhUeQ/gFD3SnqHg “In regard to the submissions by learned counsel for the second defendant that the court has the jurisdiction to allow the application by the second defendant, it must be borne in mind that in the present case, apart from the reasons given above, this court is ‘functus officio’ once judgment on the merits of the case had been pronounced and the order perfected. In the instant case the Supreme Court had affirmed the judgment of the High Court and the order of the Supreme Court has been drawn up, perfected and agreed to by all parties concerned” [8] Therefore, the only legal remedy available for the Defendant who is dissatisfied with the decision of the Magistrate Court under Enclosure 41 was to file for an appeal to the High Court. This legal principle finds its support from the case of HOW HOCK SING v. LEE SAY PENG & ORS [2015] 9 CLJ 368 where the Court held that: “[31] I shall in the rest of this judgment consider the issue as to the proper mode of challenging the decision of the learned DR in dismissing the action under Order 34 r 2 (3) of RC 2012. Simply stated, the question is whether the plaintiff was correct in having made an application to set aside (Enclosure 19) the decision of the learned DR and reinstate the action or that he should have instead appealed to the Judge in Chambers under Order 56... [32] The decision of the Federal Court in the case of Lim Oh & 6 Ors v Allen & Gledhill (sued as a firm) [2001] 3 AMR 2981 (“Lim Oh”) is the leading authority for the proposition that for a case that has been struck out due to failure to comply with a S/N x9a64jafhUeQ/gFD3SnqHg peremptory order, the remedy for the aggrieved party is to appeal against the decision to strike out. This passage from the judgment of Steve Shim CJ (Sabah & Sarawak) is most instructive... [36] The principle in Lim Oh should therefore rightfully represent the law governing the proper mode of challenging any decision to dismiss or strike out actions by reasons of any violation of “unless order” under Order 34 r 2(3) of RC 2012. A party whose action is dismissed on account of non adherence to an “unless order” must therefore appeal against the said decision instead of seeking to reinstate the case… [9] It is therefore well-established that once an Order and/or Judgement had been delivered and perfected, it could not be altered, varied or set aside by the same Court as the Court is now functus officio. The Plaintiff therefore submits that the Defendant’s decision to file for an application to set aside the said Order and Judgement granted (instead of an appeal to the High Court) is wrong. Hence, this court is to dismiss the Defendant’s appeal with cost. E. MAGISTRATE’S DECISION [10] The learned Magistrate had dismissed the Defendant’s application under Enclosure 54 mainly because she was of the view that the proper mode of challenging decision at Enclosures 52 and 53 was by way of an appeal not by set aside. S/N x9a64jafhUeQ/gFD3SnqHg [11] The learned Magistrate observed that Enclosure 41 to strike out the Defence and Counterclaim by the Plaintiff was heard inter parte and decided on merit upon hearing the respective submission for and against Enclosure 41. She was also in the agreement with the brief ground of decision of the previous Magistrate when Enclosure 41 was dismissed. In her finding she regarded the Court to be functus officio. F. ANALYSIS AND FINDINGS [12] Upon hearing submission of both parties, I found no reasons or justification to intervene with the learned Magistrate’s decision. In the case of KUNNA MANI A/PPK SINNIAH V SELVU KANAGASABAI & ANOR [2018] MLJU 457 it was clearly decided that a party who is aggrieved by an “inter-partes” decision must appeal against that order and the court has no jurisdiction to set aside the inter-partes order. [13] Since Enclosure 41 was heard inter parte and was decided on the and not dismissing it under Order 34 Rule 2 (3) Rules of Court 2012, therefore the issue on unless order is irrelevant. The learned Magistrate has not erred when dismissing Enclosure 54 on the view that the proper mode of challenging the Magistrate decision is by way of appeal and not by the setting aside application. In the case of Retnam Pillai v Bahagia Trading Agency [1977] 1 MLJ 127, it was enunciated that “in cases of inter parte judgement, the setting aside of the judgment should be by way of appeal.” S/N x9a64jafhUeQ/gFD3SnqHg [14] Based on the above reasons, I dismissed the Defendant’s appeal with cost RM3,000.00 to be paid by the Defendant to the Plaintiff. SGD (ROZANA BINTI ALI YUSOFF) Judge High Court of Penang Dated on 5 Mei 2025 Counsel Sit Jie Hao (Messrs Lee Law Office) for the Appellant. Nur Liyana Izzati binti Abd Aziz and Benjamin Chwee Yew Keng (Messrs Gibb & Co.) for the Respondent. S/N x9a64jafhUeQ/gFD3SnqHg