JUDGMENT

Muniandy Kannyappan JC:

(Enclosure 79)

Background

[1] The plaintiffs filed this civil suit against the defendants on 9 October 2018.

[2] The Civil Suit is a contentious probate proceeding that is governed by O 72 of the Rules of 2012 ( ROC ).

[3] The plaintiffs proceeded to obtain judgment in default (JID) against the first and second defendant.

[4] The JID was set aside against the first and second defendant on 20 September 2019 and they were ordered to file their defence. Defence was filed on 18 October 2019.

[5] The third defendant on 26 May 2019 applied to intervene in this civil suit.

[6] On agreement of parties, by consent on 14 June 2019, the third defendant was allowed to intervene.

[7] Trial of this case had proceeded on 20 November 2019 and PW1 Perumal Sunderan had testified. He is an Accountant by profession and holds a Power of Attorney given to him by the plaintiffs. (Marked and tendered as ID2 during trial). Hearing of the case was postponed as counsel for first and second defendant had reserved his right to cross-examine PW1 on a later date. The Court was also informed that there will be three more witnesses testifying for case of the plaintiffs.

[8] On 23 October 2019, the first and second defendant had filed an application to strike out the plaintiffs' claim against them. It is found in encl 79. The said application was dismissed with costs of RM3000 to be paid by the first and second defendant to the plaintiffs. Hence this appeal to the Court of Appeal against the said order of dismissal.

Chronology Of Events

The Law

[9] The law governing a striking out application is contained in O 18 r 19 ROC . The principles are trite and well entrenched. The leading authority is Supreme Court case of Bandar Builder v. United Malayan Banking Corp , . Essentially it is employed only in the following situation:

Since it is a summary process of adjudication, it is for a plain and obvious case.

Where it can be clearly seen that a claim is on the face of it obviously unsustainable.

There is no necessity for a minute examination of the documents and facts of the case, in order to see if the party has a cause of action.

Subsequently, in cases like Sivarasa Rasiah v. Che Hamzah Che Ismail , [2012] 1 MLJ 473, CA; Sivakumar a/l Varatharaju Naidu v. Ganesan a/l Retanam; [2011] 6 MLJ 70; [2010] 9 CLJ 825; it was decided that a striking out order should not be made summarily by the Court if there is issue of law that requires lengthy argument and mature consideration. So long as the claim on the face of it discloses some cause of action or raises some question fit to be tried it should not be struck out. The mere fact that the case is weak and not likely to succeed is no ground for the pleadings to be struck out. If one has to go into lengthy and mature consideration in detail of the issues of law and/or fact, then the matter is not appropriate to be struck out summarily, it must be determined at trial. The pleadings must be entirely hopeless, baseless or without foundation in law before they can be struck out.

Contention Of Parties

[10] The salient facts of the case distilled from the judgment of Her Ladyship Rosnaini binti Saub J (as she then was) in Civil Suit No: 22NCVC-487-08/2016 (referred to in the affidavit in reply by the First Plaintiff to the present suit to oppose application by first and second defendant to strike out the Writ and Statement of Claim at p 72) involving similar parties like in the present suit, is the following:

"...

[2] All the parties herein are family members. In fact they are siblings. Their late mother, Ponnamal A/P Ramasamy Pillai ('the deceased') died on 25 November 1988 and has left her Last Will and Testament dated 21 November 1980 ('the Writ). In the Will the Deceased bequeathed and gave all her assets and properties equally to her six children, that is, all the parties herein. This means each of the children will receive 1/6 share of the Deceased's assets and properties. Vijaya and Bala (the present Propo