Raus Sharif J:

Appeal

This is an appeal by the appellant (plaintiff) against the decision of the learned Sessions Court Judge who had, on 25 June 2002, dismissed with costs the plaintiff's application for summary judgment under O. 26A of the Subordinate Courts Rules 1980 (Order 26A).

Facts

On 4 April 2001, the plaintiff being the statutory assignee of book debts of Pan Designer Sdn. Bhd. (the said assignor), viaa factoring agreement dated 21 April 1992 filed an action against the respondent (defendant) videSessions Court Case No. 5-52-3053-2001. The amount claimed was RM155,381.29 with interest and costs being the book debts due and owing by the defendant to the supplier whom was the said assignor. On 28 September 2001, the plaintiff filed the notice of application for summary judgment against the defendant for the said sum. On 25 June 2002, the learned Sessions Court Judge dismissed the plaintiff's application with costs.

Preliminary Objection

Before this court, the learned counsel for the defendant, raised a preliminary objection to the effect that the plaintiff has no right of appeal. This is because, the dismissal of the plaintiff's summary judgement application under O. 26A against the defendant is not a final order but rather a 'ruling' as opposed to a decision within the meaning of 'decision' in s. 3 of the Court of Judicature Act 1964 (CJA). According to learned counsel, the order of the learned Sessions Court Judge does not finally dispose the rights of the plaintiff and as such, there cannot be any appeal against the said order.

Thus, the preliminary issue for determination is whether an order of dismissal under O. 26A application is appealable. Zakaria Sam JC in Alexander John Shek Kwok Bun v. WAB Keluarga Realty Sdn Bhd [2002] 1 CLJ 480 held that a dismissal of O. 26A did not fall within the meaning of 'decision' under s. 3 of CJA. In Kee Yeh Maritime Co Ltd v. Coastal Shipping Sdn Bhd [2001] 5 CLJ 194, Richard Malanjum J (now JCA) held that the plaintiff's application to strike out the defence and granting the defendant leave to defend was only an interlocutory order and consequently not a 'decision' as defined by s. 3, hence it was not appealable. However, in Sitrac Corp Sdn Bhd v. Lim Siew Eng [2002] 4 CLJ 463 Abdul Aziz J (now JCA) decided differently. The question concerning this case was whether or not the decision to dismiss the appellants' application to strike out the plaintiffs' summons and statement of claim was appealable. Abdul Aziz J in answering that such decision is appealable declined to follow the judgement of Richard Malanjum J, due to the fact that Richard Malanjum J, was not, or did not feel, called upon to consider the words 'ruling made in the course of a trial or hearing of any cause or matter'. The Court of Appeal in Syarikat Tingan Lumber Sdn Bhd v. Takang Timber Sdn Bhd [2003] 2 CLJ 177, laid down the applicable principle at p. 185 as follows:

... what must be asked, is not only whether a ruling does not dispose the final rights of the parties but also the question whether it was a ruling made in the course of a trial or hearing, of any cause or matter. If it was not a ruling made in the course of a trial or matter, regardless of the fact that it did not dispose of the rights of the parties, it may not be excluded by the definition of 'decision' as provided in s. 3 of the CJA as amended, and is therefore, appealable.

It is clear to me that a dismissal of an O. 26A is certainly within the meaning of the word "decision" in s. 3 of CJA. This is because a dismissal of an O. 26A application can only be made after considering the application in question, the affidavits in support and in opposition, documentary exhibits, pleadings and all the relevant materials in the file. Surely it is not a ruling made in the course of a trial or hearing of any cause or matter. Moreover, to deny the plaintiff the right to appeal would create an unequal situation, whereby a decision allowing an O. 26A