Low Hop Bing J:

Declaratory Relief

By way of this originating summons in encl. (1), the plaintiff seeks a declaration that the defendant, in accordance with letter dated 22 May 1982 issued by the Secretary General of the Treasury, is only entitled to receive from the plaintiff payment of the sum of RM820.09 monthly until February 2006 as the due monthly instalment in respect of a housing loan facility that was granted by the defendant to the plaintiff on 22 October 1980 ("the facility") and that the defendant be estopped from asserting otherwise.

The plaintiff also prays that the defendant be ordered to deliver a statement of the redemption sum for the facility as requested by the plaintiff calculated on the basis of the monthly instalment of RM820.09 only.

Affidavits

The plaintiff affirmed and filed his affidavit in support on 19 September 2002 which was served on the defendant on 30 September 2002.

The plaintiff who appeared in person argued that contrary to O. 28 r. 3(4) of the Rules of the High Court 1980, the defendant's affidavit in reply was only filed and served on the plaintiff's solicitors on 24 October 2002, and that, since the plaintiffs consent has not been sought nor was there any application by the defendant for an enlargement of time, there was no proper affidavit in reply to the plaintiffs originating summons.

The plaintiff stressed that the defendant's other affidavit dated 12 November 2002 was served on the plaintiff's solicitor that afternoon when the plaintiff's summons was fixed for hearing on 14 November 2002.

As a consequence, the plaintiff submitted that the defendant had disregarded the rules governing procedure and so the plaintiff was entitled to the orders sought as the plaintiffs originating summons stood unopposed.

For the defendant, learned senior federal counsel Cik Rafidah Omar, contended that the court presiding over this case shall have regard to the justice of the case, relying on O. 1Aand O. 2 r. 3 of the Rules of the High Court 1980, as amended in 2002. She requested the court to exercise its inherent jurisdiction to accept the defendant's affidavits or alternatively prays for an extension of time to file these affidavits, so that justice could be meted out, as it was a procedural non-compliance, without intending any disrespect to the court.

The relevant rule governing the service of the defendant's affidavits is contained in O. 28 r. 3(4) which is reproduced in extensoas follows:

(4) Where the defendant intends to adduce evidence with reference to the originating summons served on him, he must also do so by affidavit and the affidavit must be filed and a copy thereof must be served on the plaintiff not later than 14 days after being served with a copy of the affidavit by the plaintiff under paragraph (2).

Having regard to the above provisions contained in O. 28 r. 3(4), since the plaintiffs affidavit was served on the defendant on 30 September 2002, the defendant must serve on the plaintiff an affidavit in reply on or before 14 October 2002. In the instant case, since the defendant's first affidavit was served on 24 October 2002, there has been a delay of ten days.

In respect of the defendant's second affidavit in reply, served on the plaintiff on 12 November 2002, when the hearing had been fixed for 14 November 2002, a delay of 28 days had been occasioned.

On these delays, while it is true that there had been no formal application for enlargement of time, there was in the submissions presented for the defendants an oral application for such an enlargement. I am inclined to grant the enlargement which I hereby do, as the facts of the case must be expressed in their entirety in order to enable the court to arrive at a proper decision.

Had the plaintiff applied for time to file further affidavits in reply, I would have had no hesitation in granting the application, more so as the hearing of this originating summons had proceeded by way of written submissions and there was indeed