Abdul Malik Ishak J:

[1] The defendant did not file his statement of defence even though he was served with the writ of summons together with the statement of claim indorsed therein on 17 May 1993 at 3.30pm. An affidavit of service in encl 8 clearly shows that service of the writ with the statement of claim was indeed served on the defendant. A memorandum of appearance dated 22 May 1993 and filed by Tetuan Kadir & Co on 24 May 1993 in encl 10 shows that the defendant intends to defend the action and this brings into sharp focus O 18 r 2(1) of the Rules of the High 1980 ('RHC') which reads as follows:

Subject to para (2), a defendant who enters an appearance in, and intends to defend, an action must, unless the Court gives leave to the contrary, serve a defence on the plaintiff before the expiration of 14 days after the time limited for appearing or after the statement of claim is served on him, whichever is the later.

[2] This rule clearly provides that the defendant who enters an appearance and intends to defend must serve a defence; it recognises beyond doubt that the plaintiff must first have served his statement of claim. The effect of this rule can simply be stated as follows: The defendant must serve his defence within the 14 days after the time limited for appearance or after the statement of claim is served on him, whichever is the later. Thus, it is correct to say that a defence is served by virtue of the rule as set out in the RHC and not by an order from the Court.

[3] Here, the defendant failed to file his statement of defence and he runs foul of O 18 r 2(1) of the RHC.

[4] Since the defendant failed to serve a defence on the plaintiff, the latter has the right to apply to the Court for judgment and on the hearing of the application the Court shall give such judgment as the plaintiff appears entitled to on her statement of claim (O 19 r 7(1) of the RHC). It must not be forgotten that this rule applies in the context of the plaintiff and the defendant and not to third party proceedings (O 16 r 5 of the RHC). The default in serving a defence by the defendant cannot be followed by judgment without an order for the simple reason that the plaintiff must apply for judgment by summons or motion (O 19 r 7(3) of the RHC). Unfortunately, the plaintiff was not properly advised and there was therefore no application by summons or motion to obtain judgment in default of defence.

[5] By a summons in chambers in encl 12, which was dated 20 July 1993, the intervener sought to intervene and she affirmed an affidavit on 11 June 1993 as reflected in encl 13. In that affidavit she adverted to the affidavit of Harun bin Hj. Faudzar (SPP1) ('Harun') who was said to have been authorised by her to affirm an affidavit on her behalf in support of encl 12. In due course the judge in chambers allowed the intervener to intervene and an order to that effect was extracted on 11 August 1993 as reflected in encl 27. The intervener must have intervened under O 15 r 6(2)(b)(ii) of the RHC which states that:

6(2) At any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application:

(b) order any of the following persons to be added as a party, namely:

(ii) any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which in the opinion of the Court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter; but no person shall be added as a plaintiff without his consent signified in writing or in such other manner as may be authorized.

[6] It is of importance to remember that it is always a necessity to have before the courts the proper and necessary parties for the determination of any point in issue (Norbury v. Griffiths [1918] 2 KB 369 CA; and Performing Right Society