Azmel Maamor JCA:

[1] The appellant/plaintiffs, each of whom were the purchasers of 45 double-storey terrace houses from the respondent/defendant brought action against the defendant claiming that the houses they purchased were not built according to specifications, the quality of the materials used was poor and the workmanship was of a low standard. The learned High Court Judge dismissed their claim. On appeal to this court we unanimously allowed their appeal, we now state our grounds.

Facts Of The Case

[2] The plaintiffs purchased from the defendant double storey terrace houses in Taman Nirwana Fasa 2, Ampang, Selangor. Vacant possession of those houses were delivered to the plaintiffs sometime in early 1987. Subsequent to the delivery the plaintiffs complained against the defendant that their houses were not built according to specifications, the quality of materials used was poor and the workmanship was of a low standard. In support of their contention, the plaintiffs engaged an engineer, (PW1) who prepared a report detailing the defects found by him on those 45 houses. PW1 also produced photographs showing the nature of those defects. In his evidence PW1 stated the costs to make good those defects would be in the region between RM14,000 and RM20,000. In the statement of claim, however, the plaintiffs claim a sum of not more than RM25,000.

Decision Of Judge At Commencement Of Hearing

[3] At the commencement of hearing 12 plaintiffs who were the owners of 12 houses were not present in court. They were Plaintiffs No. 3, 6, 11, 13, 17, 20, 23, 28, 33, 37, 41 and 44. Because of their absence the learned judge struck off their actions.

[4] In our view the decision of the learned judge was not proper. In a civil action a counsel may appear on behalf of a plaintiff without the need of that plaintiff to be present in court. On record Mr. Rajadevan appeared on behalf of all the plaintiffs including the 12 absent plaintiffs. It is therefore wrong in law to strike out the plaintiffs' actions when their counsel was present in court. The presence of a plaintiff is not essential in a civil action. So long as someone is present in court on his behalf it would not be lawful for the court to strike out the plaintiff's action. His presence would become necessary if he is required to give evidence. In a civil action it is not uncommon where other persons give evidence on behalf of the plaintiff without the plaintiff himself giving evidence. In the light of very clear misdirection made by the learned judge in striking out the actions of the said 12 plaintiffs on the ground of their absence we therefore ruled that that part of decision of the learned judge be reversed and the affected plaintiffs are at liberty to file afresh.

Hearing In Respect Of Remaining Plaintiffs

[5] The proceedings in respect of the remaining plaintiffs proceeded with 2 witnesses being called on behalf of the plaintiffs. The 1st witness, Hj. Ahmad Kamal Kunji (PW1), a professional civil engineer registered with Lembaga Jurutera Malaysia with 25 years experience behind him testified that he was appointed by the plaintiffs to do an inspection regarding the defects of construction found in their respective 45 houses. So an inspection of all the parts of the 45 houses was carried out by PW1 himself. This was done sometime in November 1987. However he only completed writing his engineering report in early 1998 which was produced in Ikatan Dokumen Bundle B - (encl. 53). As regards of the basis of his investigation, PW1 said:

Asas-asas kajian adalah berdasarkan pembinaan yang telah dibuat berbanding dengan pelan-pelan lukisan pihak pemaju iaitu lukisan akitek, lukisan jurutera, spesifikasi kontrak diantara pemaju dan pemborong, Uniform Building By-Laws 1984, Akta 133 dan Amalan Baik Pembinaan (Sound Construction Practice). Saya juga telah melantik firma Perunding yang boleh membuat kajian lantai iaitu Malaysian Soil Investigation telah menjalankan pemeriksaan pada 27hb