Faiza Tamby Chik J:

[1] The applicant had filed a notice of motion dated 14 August 1998 (encl 1) and an affidavit-in-support affirmed by Tan Tiong on 12 August 1998 (encl 2).

[2] The applicant is seeking an order of court to have a letter dated 1 November 1993 to be sent to the Jabatan Kimia in order to verify the signature contained therein and to further compel the first respondent to provide specimen signatures for that purpose. Further, the applicant is also seeking a stay of the Sessions court Suit No 52-4885-95 pending the verification of the signature by the Jabatan Kimia.

[3] The first respondent had raised preliminary objections to encls 1 and 2 vide letter dated 17 August 1998 to the applicant's solicitors.

[4] The preliminary objections are as follows:

(1) that the mode of application by way of notice of motion is bad in law;

(2) that the application did not comply with Form 10 of the Rules of the High 1980 ('the RHC');

(3) that the application had not stated the statute or the rules of the court under which the court is being moved;

(4) that the application should not have been made in Shah Alam High court;

(5) that this application is bad in law as it amounts to a mandatory injunction against a government body;

(6) that there is a delay in making the application;

(7) that there is no explanation or reasonable explanation for the delay in making the application;

(8) that the affidavit did not comply with O 41 r 1(4) of the RHC; and

(9) that the affidavit did not comply with O 41 r 5(1) of the RHC.

[5] The preliminary objections are raised without prejudice to the first respondent's right to affirm an affidavit-in-reply to encl 2 in the event the preliminary objections are disallowed.

Preliminary Objection

(1) That the mode of application by way of 'notis usul' is bad in law.

(2) That the application did not comply with Form 10 of the RHC.

(3) That the application had not stated the statute or the rules of court under which the court is being moved.

[6] Enclosure 1 that is filed herein is an originating application. Order 5 r 1 of the RHC reads:

Subject to the provisions of any written law and of these rules, civil proceedings in the High court may be begun by writ, originating summons, originating motion or petition.

[7]Order 5 r 3 reads:

Proceedings by which an application is to be made to the High court or a Judge thereof under any written law must be begun by originating summons except where by these rules or by or under any written law the application in question is expressly required or authorized to be made by some other means.

[8] Pursuant to O 5 r 1 of the RHC, it is clear that there are only four modes of originating process. They are: writ of summons, originating summons, originating motion or petition. By virtue of the applicant filing the originating process by way of a 'notis usul' (notice of motion), the application has clearly contravened O 5 r 1 of the RHC.

[9] What is a notice of motion? Pursuant to O 8 r 3(1) of the RHC, a notice of an originating motion must be in Form 9 and the notice of any other motion in Form 10 of the RHC. Under Form 9, the notice of originating motion has the following titles:

In the High court of Malaya at...

OM No...

(Seal)

In the matter of...

and

In the matter of...

[10] The applicant has clearly not followed Form 9 of the RHC in this case. The notice of motion filed in this case is following Form 10 of the RHC. This notice of motion (encl 1) is akin to a summons in chambers which is normally used as an interlocutory application and not as an originating process. This is clearly wrong as one does not use a summons in chambers to originate an action in court. The Federal court in Yap Hong Thin & Anor v. Seenevasam, [1970] 1 MLJ 143 had the occasion to deal with a similar preliminary objection. The question posed to the Federal court then was whether an application for recovery of possession under the Control of Rent Act can be made by way of originating motion. The Federal court upheld the de