Gopal Sri Ram JCA:

[1] This is a case in which the learned judge of the High Court set aside a judgment entered in default of appearance. The facts of immediate relevance to the entry of the judgment are but brief.

[2] On 8 March 1997, the plaintiff (the appellant before us) purportedly served a writ on the defendant (the respondent in the appeal). No appearance was entered. A certificate of non-appearance was then filed. The plaintiff, acting under RHC O 13 r 6, took out a summons for judgment. This is because the foot of the writ carried a prayer for specific relief that fell outside those heads of claim in respect of which an ex parte judgment form may be filed in the usual way. In due course, judgment on the summons in default of appearance was entered against the defendant. Later, the defendant applied to set aside the judgment and the judge acceded to that application. The plaintiff then appealed to us.

[3] The defendant relied on a number of grounds in support of its application to set aside the judgment in question. Some of these were procedural in nature and some substantive. The learned judge does not appear to have considered the substantive merits of the defendant's case in support of its application. He merely confined himself to procedural points. He held that the judgment was bad because the plaintiff had proceeded under the wrong rule of Court. He was of the opinion that the plaintiff ought to have proceeded under RHC O 19 r 7(1) instead of O 13 r 6.

[4] Counsel for the plaintiff has argued that the former rule of Court applies only to cases where there has been default in the delivery of a pleading whereas the latter rule applies to cases where there is default of appearance. I think that the submission of counsel for the plaintiff is correct. But, it is does not advance his case. There are two principal reasons for this. The first of these is the historical background to the present litigation which I shall discuss later in this judgment. The second, I shall deal with straightaway.

[5] At one point in the history of our procedural jurisprudence, our courts treated the observance of the rules of Court as a matter of first importance. A perusal of the Malayan Law Journal will reveal cases in which an action or other proceeding terminated against a litigant because he or she failed to observe a particular rule of Court. And there are judgments of judges of much learning and experience in which one finds statements stressing upon the importance of due observance of the rules of Court. Indeed the law reports are replete with examples of cases in which an action or other proceeding has failed on procedural grounds.

[6] Similarly, mandatory and directory provisions whether in the rules of Court or other procedural legislation were interpreted in a straightjacket fashion. So, as a general rule, when a provision said "shall", it was regarded as being mandatory in effect, whereas if it said, "may", then it was treated as being merely directory. Non-compliance of the former rendered invalidated proceedings, but non-compliance of the latter did not. No attention whatsoever was paid to the consequences of non-compliance of such provisions. It did not matter, for instance, whether anybody was prejudiced by, or whether any injustice resulted from, the non-compliance in question.

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An examination of the relevant authorities, the leading textbooks and the numerous authorities to which they refer confirm the limitations of applying a solely mandatory/directory classification (se