JUDGMENT

Richard Malanjum JC:

This action was commenced on 20 June 1987 as an application for an order for sale of a charged land by the plaintiff. In view of the various allegations contained in the affidavit in opposition of the defendant the proceeding was ordered on 7 November 1988 to continue as if it had begun by writ of summons with the affidavits filed to stand as pleadings. The parties were also given the liberty to apply for further particulars where necessary.

Service of Notices of Hearing:

On 28 November 1992 this Court fixed the hearing of this case to be on 8 April 1993 at 9.00 a.m. On the day of hearing this Court was informed that the notice of hearing was not served on the defendant as attempts to locate him by the High Court process server at the given address failed. From the endorsements of the process server I note that an attempt was also made to locate him at his office on 7 April 1993 but the process server was told that the defendant was not in the office. On the same day the process server went to the house of the defendant where he saw the defendant's motorcycle but no one opened the gate. The matter was therefore adjourned to the afternoon to enable Counsel for the plaintiff to locate the defendant at his place of work. When the Court resumed learned Counsel for the plaintiff informed the Court that his staff went to the office of the defendant but was told that the defendant was on sick leave. Whereupon an attempt was made to locate the defen- dant at his house but no one was at home, Accordingly the hearing was adjourned to 12 April 1993 at 2.30 p.m. on the application of learned Counsel for the plaintiff. A fresh notice of hearing was issued accordingly and learned Counsel for the plaintiff agreed to effect the service. I had earlier on granted the request of learned Counsel for the plaintiff that his office be given a letter so as to en- able him to seek assistance from the Director of the Department of Royal Malaysia Customs and Excise, Kuching where the defendant works. I granted the request of the learned Counsel for the plaintiff after considering that the defendant was indeed a difficult person to serve the notice of hearing on after reading the endorsements of the Court process server on the notice of hearing as well as the previous hearings of this case as recorded in the Court's file. I note that the defendant was initially represented by Counsel but the matter was adjourned four times. At the fifth hearing the defendant was no longer represented by Counsel and he was also absent. The hearing was again adjourned to 7 November 1988 by which time the pre-siding Judge at that time made the order as abovementioned.

When the hearing of the summons for directions was heard on 1 December 1988 the defendant was absent as he was unserved. For the next three hearings of the summons for directions, namely, on 14 January 1989, 4 March 1989 and 15 April 1989 they ended up in adjournments as the defendant was unserved. And on 10 June 1985 the hearing of the summons for directions came up with the defendant having been served but he was absent as well. The hearing proceeded with the relevant orders made. Thereafter nothing was done on this case until it was called for mention on 28 November 1992.

At the hearing on 12 April 1993 learned Counsel for the plaintiff informed the Court that the defendant had been duly served with the notice of hearing on 10 April 1993 at 11.30 a.m. and the defendant duly signed on a copy of the letter of the learned Senior Assistant Registrar which was addressed to the Director of the Royal Malaysia Customs and Excise, Kuching as well as on the notice of hearing itself. The defendant was absent and no one came to Court to inform of the reason for his absence and there was no letter of any sort from the defendant to indicate the reason for his absence. I would have considered any explanation of the defen- dant orally or in writing but there was none even at the time of writing this