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2021 MarsdenLR 3210
HIGH COURT MALAYA KUALA LUMPUR
JEGA JOTHY C THIAGARAJAH & ORS – Appellant
Versus
RUMAH BERHALA SRI NAGESWARI – Respondent
[Civil Suit No: WA-22NCVC-582-09/2020]
The court ruled that a plaintiff cannot withdraw a suit without leave after a certain stage, particularly if doing so may cause injustice or disadvantage to the defendant.
Headnote:(A) Rules of Court 2012 – Order 21 Rule 3 – Application for withdrawal of suit – Plaintiffs sought to discontinue the suit with liberty to file afresh based on prior suit's striking out for lack of locus standi – Application dismissed due to lack of merits and potential injustice to the defendant. (Paras 2, 6, 45)
(B) Legal principles – A suit cannot be withdrawn without leave after fourteen days of service of defence – Court holds broad discretion in granting or refusing leave, especially when the defendant has gained advantages in the proceedings. (Paras 8, 9)
Facts of the case: The plaintiffs, having previously filed a similar suit against the association in a different capacity, applied to withdraw the current suit following adverse findings in Suit 572 regarding their standing.
Findings of Court: The plaintiffs were not entitled to withdraw without injustices being caused to the defendant, who had gained significant advantages and was dominus litis.
Issues: Whether the plaintiffs had locus standi, and whether allowing withdrawal would unfairly benefit them while prejudicing the defendant.
Ratio Decidendi: The court emphasized that allowing withdrawal without conditions could lead to substantial injustices and abuse of process.
Result: Application for withdrawal dismissed, with costs.
JUDGMENT
Introduction
[1] This concerned an application by the three plaintiffs to discontinue and withdraw their present suit against the defendant, with liberty to file afresh, under O 21 r 3 of the Rules of 2012 ("the ROC 2012"). At the conclusion of the hearing, which was conducted by way of remote communication technology via Zoom, I dismissed the application and highlighted the main grounds for the same. This judgment contains the full reasons for the decision.
Key Background Facts
[2] In essence, the first and second plaintiffs, who claimed to be members of the public who donated to the finances of the Hindu Temple - Persatuan Rumah Berhala Sri Nageswari, and the third plaintiff, a former office bearer of the association managing the temple, are suing the association for alleged wrongdoing such as abuse of position and breach of trust in its management and administration, including particularly in respect of the renovation works of the temple. The principal reliefs prayed for by the plaintiffs are injunctions directed against certain named individuals said to be office bearers of the association.
[3] Prior to the commencement of this suit, the same three plaintiffs had together with three others, instituted a similar suit against the association's current and former office bearers in their personal individual capacity, which was also based on the similar set of facts and reliefs under Kuala Lumpur High Court Suit No: WA-22NCVC-572-09/2020 ("Suit 572").
[4] The plaintiffs' cause of action there was also based on misuse of funds, breach of trusts and mismanagement of the temple. This Court on 19 March 2021 had struck out Suit 572 against one of the defendants (being the one who first filed the application) in that suit on the basis of among others absence of the requisite locus standi on the part of the plaintiffs to commence the action, and that the plaintiffs were not office bearers of the association.
[5] The plaintiffs now contended that the reason for this withdrawal application is exactly the fact that Suit 572 had been struck out against the third defendant there on account of lack of locus standi. Since they have appealed against that decision to the Court of Appeal, the plaintiffs in the instant suit now sought to withdraw the suit with liberty to file afresh pending the decision of the Court of Appeal in respect of the appeal against that decision in Suit 572.
Evaluation & Findings Of This Court
[6] Having examined the affidavit evidence and considered the submissions by the parties, including those made at the hearing of the application, I find the plaintiffs' application to withdraw to be lacking in merits, for a number of reasons.
The Governing Legal Principles
[7] It is apposite to start with the applicable law. The provisions governing withdrawal of a suit like the one presently is set out in O 21 r 3 of the Rules of 2012 ("the ROC 2012") as follows:
3. Discontinuance of action with leave (O 21 r 3)
(1) Except as provided by r 2, a party may not discontinue an action (whether begun by writ or otherwise) or counterclaim, or withdraw any particular claim made by him therein, without the leave of the Court, and the Court hearing an application for the grant of such leave may order the action or counterclaim to be discontinued, or any particular claim made therein to be struck out, as against any or all of the parties against whom it is brought or made on such terms as to costs, the bringing of a subsequent action or otherwise as it thinks just.
(2) An application for leave under this rule shall be made by a notice of application.
[8] Two points may be made. First, the plaintiffs relied on O 21 r 3 on the necessity to apply for leave of Court because they could no longer invoke the provisions allowing withdrawal without leave. Under O 21 r 2(1) a plaintiff may, without the leave of the Court, discontinue the action at any time not later than fourteen days after the service of the defence on him. In
