JUDGMENT

This is an application under 032 r13, 041 r3, 02 r1 & 2 and 092 r4 of the Rules of High Court 1980 (the RHC) to strike out -

(1) the affidavits of Tin San Chin and joint affidavit of Lau Bit Leong and Kok Eng Kuen, both affirmed on 7th March, 1996 in support of the plaintiffs' summons-in-chambers filed on 12th March, 1996; and

(2) the affidavit of Tin San Chin affirmed on 11th March, 1996 in support of the plaintiffs' summons-in-chambers filed on 13th March, 1996.

This application is supported by the affidavit of H.C. Sim affirmed on 25th April, 1996 for the defendant. [2]

In the summons-in-chambers of 12th March, 1996, the plaintiffs sought for leave to withdraw the third plaintiff as a party to the action, and in the summons-in-chambers of 13th March, 1996 the plaintiffs sought for a summary judgment under 014 r1 and/or 018 r19 of the Rules of High Court 1980. Each of the summons was accompanied by the relevant affidavits in support, and filed together, and both summons were served upon the defendant on 18th April, 1996. The grounds for striking out the plaintiffs' affidavits were that, first, for non-compliance with 032 r13(2)(a), and at the hearing of this application, learned counsel Mr. Lim Lip Sze also submitted that as the affidavits concerned pre-dated the applications, then a notice to use these affidavits in the plaintiffs' applications was required under 032 r13(1)(a). Secondly both Tin San Chin's affidavits were not valid or defective for non-compliance with 041 r3; and thirdly, the joint affidavit of Lau and Kok was not valid and defective as the jurat of the affidavit ends on a fresh page.

I will deal with the first ground which deals with 032 r13 - Sub-rule 13(2)(a) of 032 reads as follows:-

"An affidavit intended to be used in support of an application must be filed and served on the other party within 14 days from the date of the filing of the application."

Learned counsel, Mr. Lim Lip Sze, contended that the affidavits in support of the summons filed on 12th March and 13th March, 1996 were served on the defendant's solicitors on 18th April, 1996 which was more than 14 days from the dates of the filing of the summons on 12th March and 13th March, 1996 respectively. He cited as authorities the cases of Malayan Banking Bhd. v. Lim Tee Yong & 3 Ors. (1994) 4 CLJ 558 and K.S. Chua & Co. v. Chui Miang Chew & 5 Ors, (1995) 3 AMR 2605. In both cases, the affidavits in support of the applications were not filed together and at the same time as the filing of the applications; they were filed subsequent to the dates of the filing of the applications, and as such they had exceeded the prescribed time limit of 14 days. [3]

The true construction r13(2)(a) of 032 is that where an application has been filed and the affidavit in support of the application is filed thereafter, i.e. subsequent to the date of filing of the application, the affidavit should be filed within 14 days after the date on which the application was filed. It is very apparent that 032 r13(2)(a) does not apply to a case where the affidavit in support was filed together with and at the same time as the application was filed. The rationale is that when the application and the affidavit in support are filed together, they are deemed to be part and parcel of the application, i.e. the affidavit cannot to be treated as a separate document independent of the application or vice versa. There is no rule which requires that the application should be served on the other party within 14 days of its filing. In my view, this is procedurally correct, and the application cum affidavit does not come within the ambit of 032 r13(2)(a) Rules of High Court. In the circumstances, I hold that 032 r13(2)(a) does not apply in the case.

The defendant's other contention was that as the affidavits were affirmed prior to the dates of their filing with the applications and that they were intended to be used in these applications, a notice to use the affidavit