Sharma J (delivering oral judgment):

[1] This is one of the cases where I had called for the records under s 32 of the Courts of Judicature Act 1964 for purpose of 'satisfying myself as to the correctness, legality or propriety of the decision of the learned Magistrate. The plaintiff sued the defendant for repayment of a sum of $142.80 interest and costs on a promissory note executed by the defendant. The plaintiff in her statement of claim admitted that she was a licensed moneylender. The defence filed by the defendant denied having borrowed any money from the plaintiff but admitted having taken the loan in question from a man whose name he was unable to furnish. The suit came up for hearing before the learned Magistrate on the 9 January 1971 who purported to have acted, as he says, under O 1 r 2 of the Subordinate Courts Rules and he, without taking any evidence from the plaintiff or her witnesses, started to record a swam statement from the defendant only in answer to questions put by him. The record shows that no opportunity even was given to the plaintiff to cross-examine the defendant. In the first instance I am at a loss to understand what relevance O 1 r 2 of the Subordinate Courts Rules had in this connection. Order 1 r 2 reads:

"In any matter of practice or procedure not provided for in these Rules the Court may apply any appropriate provision thereof by construing the same with such modification not affecting the substance as may be necessary or proper to adapt the same to the matter before it."

[2] It is hard to imagine what appropriate provision of the Subordinate Courts Rules the learned Magistrate was trying to adapt for the purposes of departing from the established principles and practice of letting the plaintiff prove her case first and how he could deprive the plaintiff of even an opportunity to cross- examine the defendant on what he had stated in answer to what he was asked by the learned Magistrate. The statement recorded by the turned Magistrate from the defendant in answer to this questioning is "I am 38 years old, residing at 2331, Klebang Kechil - working as a bus conductor. I cannot read, write or converse in English." On that bare statement the learned Magistrate made the following order:

"I find the defendant could not read, write or converse in English. As such I found that promissory note(tendered as P1) could not be used, as the basis of Plaintiff's claim. As such claim dismissed."