Mohd Noor Ahmad J:

The defendant appealed against the decision of the learned senior assistant registrar which dismissed its preliminary objection against the use of the affidavit of one Abdullah Hazawi bin Jaafar affirmed on 10 March 1997 (hereinafter referred to as 'the said affidavit') by the plaintiff in the proceeding under O. 14 of the Rules of the High Court 1980. The objection was grounded on the delay in filing the said affidavit contrary to O. 32 r. 13(2)(b) of the rules. I dismissed the appeal and hence this appeal.

Briefly, by a writ filed on 5 July 1996, the plaintiff claimed against the defendant, inter alia, a sum of RM31,625,000 being the arrears of assessment in respect of Paka Power Station owned by the defendant. On 9 September 1996, the plaintiff filed an application for summary judgment under O. 14 of the rules with the supporting affidavit affirmed by one Abdullah Hazawi bin Jaafar (per encls. (3) and (2). On 23 September 1996, the defendant filed and served two affidavits in reply (per encls. (12) and (14)). On 6 February 1997, the defendant filed an application under O. 18 r. 19 of the rules together with an affidavit in support to strike out the writ and the statement of claim (per encls. (22) and (20). On 12 March 1997, the plaintiff filed an affidavit in reply, which is the said affidavit (per encl. (28)). On 13 March 1997, the plaintiff filed two notices of its intention to use firstly, the said affidavit at the hearing of its O. 14 application and secondly the affidavit in support of its application under O. 14 of the rules (encl. (2)) at the hearing of the defendant's application under O. 18 r. 19 of the rules, of which the defendant were duly notified (per encls. (27) and (26)). The hearing of O. 14 application was proceeded first on 18 March 1997 where the preliminary objections was raised.

The defendant contended that as the plaintiff was served with the defendant's affidavits in reply (encls. (12) and (14)) to the plaintiff's affidavit in support of the O. 14 application (encl. (2)) on 23 September 1996, the plaintiff if it intended to reply to the defendant's affidavits in reply should have filed and served it within 14 days from 23 September 1996 as required under O. 32 r. 13(2) of the rules. Hence, there was a delay of more than five months calculated from 23 September 1996 when the defendants affidavits in reply were served on the plaintiff to 12 March 1997 when the said affidavit was filed. In having filed and served the notice of intention to use the said affidavit at the hearing of the O. 14 application the plaintiff was attempting to circumvent the requirement of O. 32 r. 13(2) of the rules. Therefore, the said affidavit ought to be rejected.

The issue before me is whether the plaintiff is entitled to use the said affidavit (which was filed for the purpose of the application under O. 18 r. 19 of the rules) at the hearing of the O. 14 application by the plaintiff merely giving notice to the defendant of its intention to do so? My view is that the plaintiff is entitled to resort to the procedure provided for under O. 32 r. 13(1)(a) of the rules.

Rule 13(1) reads:

Any party -

(a) filing an affidavit intended to be used by him in any proceedings in Chambers; or

(b) intending to use in any such proceedings any affidavit filed by him in previous proceedings, must give notice to every other party of the filing or, as the case may be, of his intention to do so.

And r. 13(2) provides:

Save as otherwise provided in these rules -

(a) an affidavit intended to be used in support of an application must be filed and served on the other party within 14 days from the date of the filing of the application; and

(b) a party wishing to reply an affidavit served on him must file his affidavit and serve it on the other party within 14 days from the date on which the affidavit he intends to reply was served on him.

It is evident that by virtue of the phrase "Save as otherwise provided in