Suriyadi Halim Omar J:

Pursuant to an administrative exercise, this case was transferred to my court, with it fixed for mention before me on 31 January 2001. On that date one Encik Azahir was present, supposedly on behalf of the defendants, and at the same time undertook to mention on behalf of the plaintiff's solicitor. Regretfully for the plaintiff, I still struck out the case despite the defendants' counsel's undertaking and remarks. To appreciate why I struck out this case, a cursory perusal of the chronology of events becomes highly necessary.

Sometime on 21 April 1996 the writ of summons was filed. The affidavit of service affirming the service by post to both the defendants on 27 September 1996 was filed. On 4 November 1996 the certificate of non-appearance was filed. Videa letter dated 2 February 1998 a show cause letter for want of prosecution was posted to the plaintiff. The reply was that as they had obtained a judgment in default order (JID) on 30 May 1998 their presence in court thus was excused. Subsequently an application was filed by the defendants to have that JID set aside, to permit them to file their defence and to stay the execution of the JID pending the outcome of the setting aside application. Affidavit and counter affidavits ensued from both sides. Finally on 11 September 2000 the court pronounced that the JID was indeed defective, and accordingly ordered the defendants to file their defences within fourteen days. At this stage the abovementioned Azahir was present and had mentioned the matter for the plaintiff. The defendants subsequently filed their defences. To cut the matter short, the court videa letter dated 23 January 2001 had informed the plaintiff's counsel that the case had been transferred to my court, and his presence was required on the fateful day of 31 January 2001. As said above, as neither the plaintiff nor his counsel were present, and in spite of Encik Azahir's willingness to mention on behalf of the plaintiff's counsel, I still struck out the case.

It transpired that on the very day of 31 January 2001, the plaintiff's counsel had faxed a message to my Senior Assistant Registrar. On that document were imprinted the words "received 31 January 2001, Mahkamah Tinggi Malaya, Kota Bharu". I did not scribble anything on it, to indicate whether I had consented or otherwise, to the contents of the fax. How could I have that opportunity when that was the very day of the mention date? I thus knew of that fax in the open court. Amongst the reasons supplied, for not being present were:

1. the counsel personally handling the matter had resigned;

2. the substitute counsel was tied down with civil action 5-5-2003 at the Sessions court, Kuala Lumpur; and

3. the defendant's counsel had agreed to mention on behalf of the plaintiff.

As regards whether I ought to grant an adjournment, I took into account the following matters:

1. The importance of the proceedings and their likely adverse consequences to the party seeking the adjournment.

2. The risk of the party being prejudiced in the conduct of the proceedings if the application were refused.

3. The risk of prejudice or other disadvantage to the party if the adjournment were granted.

4. The convenience of the court.

5. The interest of justice generally in the efficient dispatch of court business.

6. The disability of not delaying future litigants by adjourning early and thus leaving the court empty.

7. The extent to which the party applying for the adjournment had been responsible for creating the difficulty which had led to the application (The White Book1997 p. 617).

After due consideration I struck out the case, without going through the merits of the case as:

1. the plaintiff had been informed to be present but had not done so;

2. the reasons were unacceptable, as reiterated in many circulars e.g. Chief Justice Circular KHN No. 47 of 2000;

3. the fact that the defendant was willing to mention the matter on behalf of the plaintiff did not