Suriyadi Halim Omar J:

Sometime on 11 January 1993 the plaintiff had filed a writ of summons against the defendant at the High Court. On 10 October 1993 it was served on the defendant by way of substituted service, ie, by posting the said writ at the defendant's last known address. The defendant however did not enter appearance, hence prompting the plaintiff to enter a judgment in default of appearance (JID) against the defendant on 12 December 1993.

The defendant however made no effort to have the JID against him set aside until more than six years later, when he through his counsel filed a summons-in-chambers (encl. 10). The premise of the application was that as the service was bad, it being served at the last known address instead, the JID order thus was a nullity and must be set aside. The application was first heard before the senior assistant registrar, and upon hearing the application dismissed it thus leaving the JID unscathed.

Being dissatisfied with that decision the defendant again through his counsel filed a notice of appeal to the judge in chambers (encl. 15). At the commencement of the hearing of the notice of appeal before me, the plaintiff's counsel had raised a preliminary objection, stating that the defendant's application in encl. 10 was defective as it rebelled against O. 42 r. 13 of the Rules of High Court 1980, which provides:

where in these Rules provisions are made for the setting aside or varying of any order or judgment, a party intending to set aside or vary such order or judgment must make his application to the Court and serve it on the other party who has obtained the order or judgment within thirty days after the receipt of the order or judgment by him.

Adverting to the above provision, the plaintiff's counsel adamantly submitted that the defendant's application was long overdue, ie, more than six years after the JID had been entered and served on the defendant. He contended that the application should therefore be dismissed, without the necessity of any consideration of the merits of the case. In a gist therefore, I had to consider, inter alia, whether I was endowed with the statutory powers or alternatively possessed the inherent jurisdiction to have the order set aside, in the circumstances of the case.

As the matter under discussion concerned an order of JID of appearance, O. 13 is of significance particularly O. 13 r. 8 of the Rules of High Court, as the defendant had wanted to set aside that order. This sub-rule reads:

8. The Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of this Order.

Perusing O. 13 it is indisputable that this provision is silent on the time frame factor, particularly as to when a party should take steps to set aside that order. Be that as it may, O. 42 r. 13 Rules of the High Court (Amendment) Rule 1993, (effective 1993) provides that a party intending to set aside or to vary such order or judgment must make his application to the court, and serve it on the party who has obtained the order or judgment, within 30 days after the service of the order or judgment on him. Since a judgment in default of appearance order may be set aside, as permitted by O. 42 r. 13, the stringent requirement of making the application and serving it on the party who has obtained the judgment within thirty days after receipt of the order or judgment, must be adhered to. But what if an aggrieved or interested party were to be out of time, as in this case, what then should it do? I was painfully aware of the fact too that this sub-rule had not provided for any provisions for any extension of time, for purposes of abridgment of time. After due deliberation, I was of the opinion that an interested party in such a predicament could advert to O. 3 r. 5 of the Rules of the High Court, to extend the time but subject to an application. In the current case, as no application was made pursuant to the latter sub-provision, purposefully to abridge t