JUDGMENT

[ENCLOSURES (41) AND (42)]

I. APPEALS

The plaintiff has lodged two notices of appeal viz. enclosures (41) and (42) against two decisions made by the learned registrar on 18 September 2001, allowing with costs :-

1. the first defendant's application under O. 18 r. 19(1)(b) or (d) of the Rules of the High 1980 to strike out the plaintiff's claim against the first defendant; and

2. the second defendant's application to set aside the service of the writ of summons herein on the second defendant and to delete the second defendant as a party hereto.

For brevity, a reference to an order and a rule hereinafter shall be a reference to that order and rule in the Rules of the High 1980 .

II. FACTUAL BACKGROUND

As far as the first defendant is concerned, the plaintiff's statement of claim is founded on alleged libel and slander (hereinafter referred to as "the defamation action") against, inter alia , the first defendant as the President, Council of the Justices of the Peace, State of Negeri Sembilan.

The averments in the statement of claim run into some 28 pages. At this juncture of the interlocutory appeal, it is inappropriate for me to delve upon or embark on a critical or minute examination of those averments as they remain as mere averments.

In relation to the second defendant, the relevant factual background revealed that on 9 April 2001 at about 8.00pm, the plaintiff's representative handed over the writ herein against the second defendant to the second defendant's wife who refused to accept it and told the plaintiff's representative to serve it on the second defendant the following day.

On 10 April 2001, at about 8.00am, the second defendant found in his house copies of allegedly wet and torn documents which were allegedly left by the plaintiff's representative the night before.

However, the plaintiff's version of the service was that his process server, one Khairul Aazam, served the writ on the second defendant in the latter's house at about 3.45pm on 9 April 2001, although the second defendant had asked the process server to wait and serve the same on the second defendant's solicitors. Nothing was said of the identity of his solicitors. The process server went back to the second defendant's house at 7.00pm of the same night and pushed the same under the front door of the second defendant's house.

The second defendant subsequently entered conditional appearance.

III. SUBMISSION FOR PLAINTIFF

En. K. Balaguru, learned counsel for the plaintiff, submitted that O. 18 r. 19(b) and (d) of the Rules of the High 1980 relied upon by the first defendant never existed at all, and that the correct rule was O. 18 r. 19(1)(b) and (d) . On that ground alone, he asked the Court to allow the plaintiff's appeal in limine .

A preliminary objection was raised for the plaintiff with regard to the admissibility of the second defendant's affidavit in support affirmed on 4 May 2001, as it was said to have failed to comply with one of the jurats in Form 78 under O. 41 r. 1(8) and r. 9(2) , and hence it was defective, citing numerous authorities.

He then submitted that the plaintiff's writ had been properly served on the second defendant, and that the second defendant has been correctly sued as a party, being the person who has lodged a police report against the plaintiff.

IV. CONTENTION FOR DEFENDANTS

In essence, Datuk N. Chandran and En. Sri Dev Nair, learned counsel for the first and the second defendants went through the plaintiff's statement of claim, referring to such documents as a police report, a statutory declaration and the affidavits filed herein and asked the Court to hold that the first defendant was entitled to the defence of qualified privilege and hence on the peculiar facts of this case there was no need to have a trial for the purpose of establishing the defence.

In relation to the preliminary objection in relation to the admissibility of the second defendant's affidavit, it was submitted that the affidavit is admissible.

They then stressed t