Mohd Hishamudin Bin Mohd Yunus JC:

This is an application by the plaintiff for summary judgment against the second, third and fourth defendants pursuant to O. 14 of the Rules of the High Court (default judgment had already been obtained against the first defendant).

All the defendants are partners of a partnership known as "Eng Hup Seng Ricemill and Trading Company."

The plaintiff, in its statement of claim, avers that it had granted the partnership with an overdraft facility and that as of 31 October 1992, the partnership, in breach of the condition of the facility, had exceeded the limit of RM800,000 by RM356,598.78. Despite being reminded by the plaintiff to regularise the account, the defendants had failed to do so. Accordingly, the plaintiff served each of the defendants with a letter of demand demanding that the amount of RM1,156,598.78 be paid within fourteen days. The defendants failed to comply. By this action, the plaintiff claims for the said amount.

In support of its application, the plaintiff filed four affidavits, that is to say:

(a) the affidavit of Abdul Hamid bin Ku Saad affirmed on 23 August 1993 (enclosure 14);

(b) the affidavit ("afidavit pembetulan") of Abdul Hamid bin Ku Saad affirmed on 28 October 1993 (enclosure 15);

(c) the affidavit ("afidavit balas") of Abdul Hamid bin Ku Saad affirmed on 2 February 1994 (enclosure 23); and

(d) the affidavit ("afidavit tambahan") of Abdul Hamid bin Ku Saad affirmed on 21 February 1994 (enclosure 27).

In opposing the application, the defendants filed their statement of defence and the following three affidavits:

(a) the affidavit of Lim Tee Keng affirmed on 5 November 1993 (enclosure 19);

(b) the affidavit of Lim Tee Keng ("afidavit balasan") affirmed on 6 January 1994 (enclosure 21);and

(c) the affidavit ("afidavit balasan tambahan") affirmed by Lim Tee Keng on 29 April 1994 (enclosure 28).

The affidavit in enclosure 19 adopts the statement of defence.

At the commencement of this hearing, two preliminary issues were raised. I shall deal with these procedural issues first. First, the learned Counsel for the plaintiff, Encik Lor Chin Yoon, objected to the defendants' affidavit in enclosure 28. This objection was based on O. 32 r. 13 (2)(b) of the Rules of the High Court which provided:

(O. 32, r. 13)(2) Save as otherwise provided in these rules:

(a) ...

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

on him.

According to Encik Lor, enclosure 28 was filed and served on him only on 5 May 1994 whereas plaintiff's affidavit (enclosure 27) was served on the defendants' solicitor much earlier, that is, on 21 February 1994. The learned Counsel for the defendants, Encik Tan Lip Gay, in reply, admitted the delay but said that he had difficulty in getting from his clients a Penang High Court writ of summons no.22-169-93, which is needed for the purpose of the affidavit (enclosure 28), and argued that the delay did not in any way prejudice the plaintiff. He urged me to exercise my discretion to allow enclosure 28 to be used in the proceeding. At the outset I must say that on a technical issue such as this I am always reminded by what was said by Ong Hock Sim F.J. in Government Of State Of Pahang V. Tengku Abdul Aziz & Anor [1977]

We are inclined to the view that justice would not be served by acceding to objections on technicalities for non-compliance.

At the same time, however, I am also of the view that litigants should not treat rules of procedure lightly. Nor should they take the Court for granted. Any litigant who neglects to adhere strictly to the rules of procedure do so at his own peril. Although generally the Court has a discretion to allow an affidavit to be used despite there being a clear non-compliance with O. 32, r. 13(2)(b), nevertheless, in the present case, I upheld the objection and ruled