Gopal Sri Ram JCA (delivering judgment of the court)::

[1] This is the judgment of the court.

[2] This appeal is directed against the order of the High Court, Kuantan granting the respondent before us unconditional leave to defend the action. The subject matter of the claim in this case is for goods allegedly sold and delivered by the appellant to the respondent. It is the appellant’s case that the documents produced before the High Court amply proved the existence of [*815] the debt from the respondent. The learned senior assistant registrar who heard the summons for judgment at first instance agreed with the appellant and entered judgment. On appeal by the respondent the judge in chambers, after full and careful examination of the whole of evidence before her came to the conclusion that there was an issue to go for trial.

[3] We have said often enough that this court will be most reluctant to entertain appeals against orders granting unconditional leave to defend which entail a re-examination of documentary and affidavit evidence raised before the High Court. It is only in very rare cases that this court will entertain such appeals, for example where there is only a question of law or where there are no disputes as to facts and the defence taken obviously lacks bona fides.

[4] The proper approach to a summons to judgment has been set out in a number of cases. No useful purpose will be served by a discussion of all of them here. Suffice that we quote from two well known authorities. The first is Societe des Etains de Bayas Tudjuh v Woh Heng Mining Kongsi [1978] 2 MLJ 267 at p 269, where Abdoolcader J said:

If a defendant, though he admits part of the plaintiff’s claim, sets up

a defence to the residue and a counterclaim for a larger amount than

the part of the plaintiff’s claim admitted, he is entitled to

unconditional leave to defend as to the whole (Court v Sheen 7

TLR 556). When a bone fide counterclaim is set up arising out of the

subject matter of the action and connected with the grounds of defence,

unconditional leave to defend should be given, even where the defendant

admits part of the plaintiff’s claim, as in such circumstances such

admission is only subject to the counterclaim which might turn out to

be larger in amount (Court v Sheen). Order 14 was not intended to

shut out a defendant who could show that there was a triable issue

applicable to the claim as a whole from laying his defence before the

court, or to make him liable in such a case to be put on terms of

paying into court as a condition of leave to defend (Jacobs v Booth’s

Distillery Co 85 LT 262). Where there is clearly no defence to the

plaintiff’s claim, so that the plaintiff should not be put to the

trouble and expense of proving it, but the defendant sets up a

plausible counterclaim for an amount not less than the plaintiff’s

claim, the order should not be for leave to defend but should be for

judgment for the plaintiff on the claim with a stay of execution until

the trial of the counterclaim (Sheppards & Co v Wilkinson &

Jarvis (1889) 6 TLR 13).

[5] The second is, Malayan Insurance (M) Sdn Bhd v Asia Hotel Sdn Bhd [1987] 2 MLJ 183 at p 185 where Hashim Yeop A Sani SCJ (later CJ (Malaya)), a judge of much learning had this to say:

The underlying philosophy in the O 14 provision is to prevent a

plaintiff clearly entitled to the money from being delayed his judgment

where there is no fairly arguable defence to the claim. The provision

should only be applied to cases where [*816] there is no

reasonable doubt that the plaintiff is entitled to judgment. Order 14

is not intended to shut out a defendant. The jurisdiction should only

be exercised in very clear cases.

[6] Having very carefully scrutinised the judgment under appeal, we are satisfied that the learned judge h

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