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2025 MarsdenLR 3028
HIGH COURT MALAYA SHAH ALAM
BHAVANASH SHARMA GURCHAN SINGH SHARMA & ANOR – Appellant
Versus
AIA BHD – Respondent
[Civil Appeal No: BA-12ANCC-3-02/2023]
The appeal was dismissed as incompetent under Section 28(1)(c) of the Courts of Judicature Act 1964, affirming the Sessions Court's discretion to allow extensions for compliance with court orders.
Headnote:(A) Courts of Judicature Act 1964 - Section 28(1)(c) - Rules of Court 2012 - Order 18 Rule 19 - Appeal against dismissal of application to strike out Statement of Claim - Appeal dismissed as incompetent due to amendments disallowing appeals on striking out applications - Court found no grounds for exception to apply. (Paras 6, 7, 8)
(B) Extension of time - Court has discretion to allow extension of time for compliance with court orders in the interest of justice - Delay of 3 days in serving further and better particulars was deemed acceptable. (Paras 5, 9)
Facts of the case:
The appeal was against the Sessions Court's dismissal of an application to strike out the Statement of Claim based on the failure to furnish further and better particulars as ordered by the High Court. The Defendants argued that the Statement of Claim was automatically struck out due to non-compliance. (Paras 1, 3, 12)
Findings of Court:
The appeal was dismissed on the grounds of incompetence as per the Courts of Judicature Act, and the Sessions Court's decision to allow an extension of time for compliance was upheld. (Paras 6, 18)
Issues: The main issues included whether the Statement of Claim was automatically struck out due to non-compliance with the High Court Order and the adequacy of the particulars furnished. (Paras 12, 15)
Ratio Decidendi: The court ruled that the appeal was incompetent under Section 28(1)(c) of the Courts of Judicature Act 1964, and the Sessions Court had the discretion to allow an extension of time for compliance with court orders. (Paras 6, 9)
Result: Appeal dismissed with costs of RM5,000.00.
JUDGMENT
Introduction
[1] This Appeal was filed against the Order of the Sessions Court dated 31 January 2023 that dismissed the Appellants/Defendants' application in encl 84 in the Court below. Enclosure 84 was filed on 27 October 2022 under O 18 r 19 of the Rules of 2012 and/or the inherent jurisdiction of the Court to strike out the entire Statement of Claim ("SOC") on grounds that:
(a) pursuant to an Order of the High Court dated 15 September 2022 ("HC Order"), the SOC had been struck out automatically on the Respondent/Plaintiff's failure to furnish further and better particulars of its SOC ("F&BP") within 2 days of the HC Order; and
(b) the F&BP served on 22 September 2022 was incomplete.
[2] I will refer to the parties as they were in the Court below.
Background Facts
[3] The HC Order had reversed an earlier Order of the Sessions Court that dismissed the Defendants' application for F&BP. Consequent to that reversal, it was understood by all parties that the prayers in the application for F&BP were therefore allowed, including the prayer for a default Order that the SOC be struck out if the F&BP is not furnished within 2 days:
3. Bahawa Plaintif diperintahkan untuk menyampaikan butir-butir diatas secara bertulis dalam masa dua (2) hari dari tarikh perintah ini;
4. Sekiranya Plaintif gagal memberikan butir-butir seperti yang diperintahkan oleh Makhamah yang Mulia mengikut masa yang ditetapkan diperenggan 3 di atas, suatu perintah bahawa Panyataan Tuntutan Plaintif dibatalkan;
[4] There was no further appeal against the HC Order.
[5] In dismissing encl 84, the Sessions Court decided as follows:
(a) An extension of time was allowed to regularize the late service of the F&BP.
There was a delay of only 3 days [excluding the weekend on 17 September 2022 and 18 September 2022 per O 3 r 2 and 4 of the Rules of 2012] in serving the F&BP. Order 2 r 1 and 3 of the Rules of 2012 empowered the Sessions Court to exercise its discretion to consider an application for extension of time in the interest of justice even though it was not filed promptly. The Defendants had not objected to the service of the F&BP on 22 September 2022 and even served their Reply to the Counterclaim Defence on 5 October 2022.
(b) The complaint that the F&BP furnished pursuant to the HC Order was incomplete because no 2013 valuation report was furnished was rejected because no particulars of such valuation report was requested or pleaded in this action.
The alleged unfulfilled request for F&BP relates to para 9 of the SOC:
"Atas kegagalan defendan pertama dan defendan kedua tersebut, pihak plaintif dalam menguatkuasakan haknya telah melaksanakan haknya di bawah Perjanjian LACA tersebut untuk menjual Hartanah tersebut melalui lelongan awam pada 26 June 2020 (selepas itu dirujuk sebagai "Lelongan Awam tersebut")."
On 2 September 2021 following a request by letter for details of the public auction, the Plaintiff's former solicitors, Sidek Teoh Dennis & Wong ("STDW"), had already furnished copies of 7 Proclamations of Sale and a valuation report dated 26 August 2020, containing all the particulars requested.
Analysis and Findings
[6] This Court is bound by s 28(1)(c) of the Courts of Judicature Act 1964 to dismiss this Appeal on grounds that the appeal is incompetent (See Azinal Sdn Bhd v. Jannath Gani & Ors And Other Appeals ("Azinal") on the interpretation of the equivalent s 68(1)(f) of the for appeals to the Court of Appeal).
[7] The amendments to the Courts of Judicature Act 1964 to expand the list of non-appealable matters was held in Azinal to have retrospective effect. In this case, encl 84 itself was filed on 27 October 2022 after the amendment to disallow appeals on any dismissal of a striking out application came into effect on 1 October 2022 and so there is no question that s 28(1)(c) of the applies. There are no grounds cited why there should be an exception for an appeal on encl 84 to be entertained since it is an
