JUDGMENT

1. There are two applications for hearing this morning:-

a) ;the plaintiff's application (encl. 81) for striking out of the defendant's Reply dated 14th October, 1998 to the plaintiff's Defence to the Counterclaim in contravention of O. 18 r. 4 of the Rules of the High Court 1980; and

b) ;the defendant's application (encl. 94) for leave to file and serve the said Reply.

As the applications are inter-related, they will be heard together.

2. The plaintiff filed a writ of summons and served it on the defendants on 1st September, 1998, and the defendants filed its Defence and Counterclaim on 16th September, 1998. On 29th September, 1998 the plaintiff filed Summons For Further and Better Particulars. The plaintiff filed a Reply and Defence to the Counterclaim on 30th September, 1998. The defendants had filed a Reply dated 14th October, 1998 to the plaintiff's Defence to the [3] Counterclaim and served it on the plaintiff who accepted it on "without prejudice" basis. The plaintiff then filed this application for leave to file its reply of the 14th October, 1998.

3. In the first application (encl. 81), the plaintiff's counsel averred that the pleading had already closed after the expiration of 14 days after service of the plaintiff's Reply and Defence to the Counterclaim (O. 18 r. 20 Rules of the High Court 1980) i.e. 14th October, 1998. The plaintiff could not have filed a reply after the pleading had closed. There is no provision under the Rules of the High Court 1980 which allows the defendant to serve a reply to the plaintiff's Reply and Defence to the Counterclaim. Any pleading thereafter, must be with the leave of the Court as provided for under O. 18 r. 4 of the Rules of the High Court 1980. The defendants failed to obtain leave of Court before filing this reply.

4. Order 18 r. 4 of the Rules of the High Court 1980 states:-

"No pleading subsequent to a reply or a defence to a counterclaim, shall be served except with the leave of the Court."

It is clear that the provision under Rule 4 of Order 18 is mandatory, leave of the Court must be obtained. This means that after the pleading is closed no pleading, e.g. a rejoinder, shall be served unless with the leave of Court. It is mandatory that leave must be obtained before a rejoinder is filed and served.

5. In Yu Oi Yong & Anor v Ho Toong Peng & Ors (1977) 1 MLJ 120 , Chang Min Tat J. (as he then was) reminded us, at page 121, thus:-

"There should, in my view, be some adherence to the rules of court, unless required by circumstances, if there is to be any meaning or purpose in such rules

It should, I think, be realised by practitioners as well as by judges that while strict and slavish adherence to forms and rules can sometimes hinder the administration of justice, these forms and rules should not be disregarded for no reason whatsoever, since they embody the experience of the courts over the years in the cause of speedy and efficient administration of justice."

6. In S.A. Andavan v Registrar Of Titles, Negeri Sembilan & Ors (1977) 2 MLJ 220 , Ajaib Singh J. (as he then was) at page 225, said:- [4]

"Litigation is governed by rules of procedure and no side may take undue advantage over another by side-stepping any rule and it is the duty of the court to ensure that the parties engage themselves in a fair contest."

7. Malaysian High Court Practice, Vol. I, 1998 Edition, page 475, para 18.4.1 states:

"Pleading subsequent to a reply or a defence to counterclaim.

This would usually be the defendant's answer to the plaintiff's reply. Although uncommon, an answer may be necessary, for example where the defendant raises a counterclaim of libel and the plaintiff pleads qualified privilege in reply to which the defendant wishes to plead express malice. It may also be necessary to comply to O 18 r 8(1)."

Para 18.4.2 states:

"Leave of court.

The application for leave is to be made inter parties by summons or in a summons for direction: Monck v Smythe (1895) 1 Jr R 200. It will only b