Tenaga Nasional Berhad (TNB) v MAHADEVAN A/L K SUBRAMANIAM (WA-24NCvC-1855-05/2024)

The Plaintiff has instructed its solicitors to file a Civil Suit against the Defendant, due to the Defendant’s alleged conduct of tampering the electrical meter on the Defendant's premises.

The Civil Suit was dismissed by the learned Magistrate on 30.08.2023, (Decision). Thereafter, the Plaintiff instructed the Firm to file an appeal against the Decision.

The solicitor in charge from the Firm that handled the Civil Suit was Miss Keerthana Rajendran (Ms. Keerthana). Ms. Keerthana was, at the 3 material time, practising at the Firm. She ceased practice from the Firm on 29.03.2024.

However, the appeal was not filed within the fourteen (14) days’ period prescribed under Order 55 of the Rules of Court 2012, i.e., on or before 12.09.2023.

Consequently, the Plaintiff filed an Application for Extension of Time to file the Notice of Appeal at the Magistrates Court on 29.09.2023, 31 days after the Decision.

On 04.10.2023, the Application for Extension of Time to file the Notice of Appeal was called for case management at the Magistrates Court. During the case management session, the Magistrates Court informed the Plaintiff that the application should not have been filed at the Magistrates Court and instead should have been filed at the High Court, as such application is under the jurisdiction of the High Court. The Magistrates Court then directed that the application be withdrawn, to be filed at the High Court.

The Firm later learned that Ms. Keerthana did not file the application for an extension of time at the High Court following the withdrawal of the application at the Magistrates Court.

Subsequently, the Plaintiff instructed the Firm to file this Originating Summons.

This Originating Summons was filed on 04.10.2023, about nine (9) months after the Decision.

It was not disputed that there was a delay.

The Plaintiff contended that, the delay was not caused by the Plaintiff and should not be held against the Plaintiff and that, the Originating Summons ought to be allowed.

The Plaintiff submitted that on 10.06.2024, Enclosures 1 and 2 were personally served on the Defendant's Solicitors, who acknowledged receipt, but to date, the Defendant has failed to enter an appearance or file a Notice of Appointment of Solicitors.

Order 3 rule 5 of the Rules of Court 2012 (ROC) empowers the Court to extend time.

In this regard, this Court is stand guided by the Court of Appeal’s decision in Nordin Kassim v. Murallitharan Munisamy; Majlis Peguam (Intervener) [2025] 4 MLRA 125; [2025] CLJU 97; [2025] MLJU 146, where the Court of Appeal held- [22] In Rohman Norhakim Abd Aziz v. Ismail Mohd Yusak & Anor [2020] MLRHU 1046; [2020] 1 LNS 1903, the High Court held as follows: “[19] It is undisputable here that the delay of 6 months here is by any standard inordinate and substantial. The plaintiff’s claim was dismissed on 6 March 2019. The appeal against the dismissal of the claim was filed within time but was not served on the 1st defendant within the time frame required by O 55 r 3(4) (at [10] supra). The application for extension of time was only filed in November 2019.

The onus is on the plaintiff as the applicant to provide the court with good and substantial reasons for the long delay. The only reason proffered by the plaintiff for the failure to serve within time was that his former solicitors had failed to do so. It was not explained why the plaintiff did not procure an affidavit from the former solicitor to explain why he had not served the notice of appeal and record of appeal on the 1st defendant on time.

There is a general rule that where a solicitor’s default is put forward as the explanation for the delay, this does not amount to a sufficient ground to grant an extension of time to file or serve a notice of appeal. I accept the plaintiff’s contention that this rule is not absolute and in appropriate cases the court can grant an extension as the court does not like an innocent litigant to suffer for the mistake of his lawyers.

In Chong Kueng Ying & Ors v. Lovis Lavagna [1972] 1 MLRA 54; [1971] 2 MLJ 225, Suffian FCJ (as he then was) delivering the judgment of the court held as follows: “The mistake of a legal adviser is not sufficient ground for granting leave.” Our Decision

There was an inordinate delay of 154 days and/or about five (5) months in taking out encl 1. The Appellant failed to furnish any relevant evidence to explain the delay in filing the Notice of Appeal against the High Court’s decision within the time limit prescribed.

The inexcusable long delay for the current motion is pursuant to the Appellant’s own conduct and this Honourable Court finds no favour with the Appellant’s contention that the delay was pursuant to the Appellant’s application for leave to appeal.

The Appellant being an advocate and solicitor has only himself to blame for the unwarranted delay. There has been a flagrant breach of the rules of the court and there was no acceptable explanation for it. …” (Emphasis Added) [17] Further, Federal Court in the case of Chin Hua Sawmill Co Sdn Bhd v. Tuan Yusoff bin Tuan Mohamed [1973] 1 LNS 15; [1973] 1 MLRA 764; [1974] 1 MLJ 58 held as follows- "Here is a clear admission that the failure to serve the notice was due to the solicitor's mistake. Needless to say, that such mistake is not a ground for granting special leave. That must be so for the obvious reason that it is not possible to draw a dividing line between a mistake which can support the exercise of a discretionary power and that which cannot. A mistake is a mistake whatever may be the reason for it. As to whether or not Mr. Foo's mistake amounts to negligence we express no opinion." (Emphasis Added) [18] In Nordin Kassim (supra), the delay was 154 days or about five (5) months after the decision made at the High Court. The Court of Appeal held that the delay was inordinate and inexcusable. [19] Similarly, in this Originating Summons, there was a delay of at least nine (9) months. The reason for the delay was that Ms. Keerthana had wrongly filed the application for an extension of time at the Magistrates Court. Ms. Keerthana had also failed to file the application for extension at the High Court. [20] This Court finds that the delay was inordinate and inexcusable and the mistake of a lawyer handling the matter is not a sufficient ground for granting leave. CONCLUSION [21] Therefore, this Originating Summons is dismissed with costs. -SGD- (DR. SUZANA BINTI MUHAMAD SAID) Judicial Commissioner of the High Court NCVC 1 Kuala Lumpur Court Dated: 3 JULY 2025 COUNSELS FOR THE PLAINTIFF Tetuan Hafarizam Wan & Aisha Mubarak Peguambela & Peguamcara Level 21, Menara MARA 232, Jalan Tuanku Abdul Rahman 50100 Kuala Lumpur FOR THE DEFENDANT Tetuan Law Chambers of Gobindran Peguambela & Peguamcara No. 141, 3rd Floor Pesiaran Pegaga, Taman Bayu Perdana 41200 Klang