JUDGMENT

Edgar Joseph Jr. SCJ:

This was an application to strike out the statement of claim insofar as it concerns the second to the seventh defendants on the ground that it discloses no reasonable cause of action and/or that it is scandalous, frivolous or vexatious and/or that it is an abuse of the process of the Court and that the action be dismissed as against them. The application was made under O. 18 r. 19 and also under the inherent jurisdiction of the Court.

It is well established that where the only ground on which the application is made is that the pleading discloses no reasonable cause of action or defence, no evidence is admitted (Att. Gen Republic of Peru v. Peruvian Guano Co. [1887] 36 Ch D 489, 498) and where the only ground on which the application on which the statement of claim can be said to disclose no reasonable cause of action is that the action is unlikely to succeed, affidavit evidence is equally inadmissible (Wenlock v. Maloney [1965] 1 WLR 1238). However, in an application on any of the other grounds mentioned in the rule or where the inherent jurisdiction of the Court is invoked, affidavit evidence may be and is ordinarily used. Moreover, on an application to strike out the statement of claim or to dismiss the action, it is not permissible to try the action on affidavits when the facts and issues are in dispute. (See Wenlock v. Moloney ibid). Also to be borne in mind is the principle that the Court will not permit a plaintiff to be driven from the judgment seat "except where the cause of action is obviously bad and almost incontestably bad." (Per Fletcher Moulton LJ in Dyson v. AG [1911] 1 KB 410, 419). Lastly, the rule empowers the Court to amend any pleading or endorsement or any matter therein. This power is additional to the powers of the Court to amend under O. 20. So its incorporation in this rule emphasises that in suitable and proper cases the Court may exercise its coercive and curative powers at the same time.

It is with the above principles in mind that I turn to consider the application before me which I had adjourned into Court for further argument having earlier granted it in Chambers.

I must now address myself to the statement of claim which is sought to be struck out.

By way of introduction the plaintiff alleged that at all material times to the suit the first to the fifth defendants are partners in a partnership business known as Hotel Kuala Lumpur carrying on business at Butterworth ("the partnership business") while the sixth and the seventh defendants became partners on 1 April 1984 as a result of succeeding to the share of their deceased father Kau Pee Tee who had been a partner.

It was alleged that the plaintiff was also, at all material times, a partner of the partnership business, in respect of a half share through the first defendant, the second to the seventh defendants having known, acquiesced and/or consented to the plaintiff holding the half share through the first defendant. However, the plaintiff's share had never been registered under the provisions of the Registration of Businesses Act and although no written agreement evidencing the plaintiff's alleged share in the partnership was ever signed, the plaintiff did produce, by way of affidavit, profit and loss accounts of the partnership business for the years 1979 to 1981 and 1983 and 1984. The plaintiff further produced, his income tax Assessment Notices showing his share in the partnership business income from 1971 to 1982 upon which he was duly taxed by the Department of Inland Revenue.

The plaintiff went on to allege both in his statement of claim and in his affidavit that in respect of the period 1971 to 1984 there is due and owing to him from the partnership business a sum of RM103,705 representing his share of the profits of which only RM39,000 had been paid, leaving a balance of RM64,705 still due and owing to him. Notwithstanding, a demand made by his solicitors in writing by letter dated 19 November 1986, for this bal