JUDGMENT

Zaleha Zahari JCA:

[1] The sole issue in this appeal is whether it was open to the defendants (respondents before us), in the circumstances of the present case, to raise the plea that the claim of the plaintiffs (appellants before us) was time-barred pursuant to s. 7(5) of the Civil Law Act 1956 (the Act) .

[2] This case arose from an accident on 11 December 1993 involving motor van No. JCH 3146 and motor lorry No. JCC 5590. More than four years after the date of the accident, ie, on 6 December 1997, the plaintiffs filed the action which is the subject matter of this appeal pursuant to s. 7 of the Act . The defendants filed their statement of defence on 27 February 1998. Limitation was not raised as an issue in the defence filed.

[4] On this issue of limitation the Sessions Court Judge held that parties were bound by their pleadings. She took the view that if the defendants had intended to rely on limitation as a defence, it must be pleaded pursuant to O. 14 r. 14(1) of the Subordinate Rules 1980 . By reason of the defendants' failure do so she held that it was accordingly not open for them to rely on the same. The Sessions Court Judge then entered judgment for the plaintiffs.

[5] On appeal, the Sessions Court Judge's decision was reversed. The High Court Judge took a contrary view. The reasoning of the High Court Judge in making the decision that he did was as follows: By reason of the Act having its own period of limitation as provided in s. 7(5) , and by reason of the Limitation Act 1953 being not applicable to this case, the High Court Judge held that s. 7(5) was an absolute provision which has to be applied under all circumstances; that any person mindful of instituting any proceedings under s. 7 must do so within three years after the death of the person deceased. His Lordship also took into consideration the absence of a pari materia provision in terms of s. 4 of the Limitation Act 1953 in the Act. In the absence of such a provision in the Act, he held that it was not necessary for the defendants to plead limitation as a defence.

[6] Section 4 of the Limitation Act referred to by the High Court Judge reads as follows:

Nothing in this Act shall operate as a bar to an action unless this Act has been expressly pleaded as a defence thereto in any case under any written law relating to civil procedure for the time being in force such a defence is required to be so pleaded.

[7] The learned High Court Judge took the view that it is for the plaintiffs to take notice of the time frame prescribed by the Act and not for the defendant to plead it. He concluded that as the plaintiffs' action was instituted outside of the time frame prescribed by s. 7(5) it was ultra vires the Act. The defendant's appeal was then allowed but he made no order as to costs. Dissatisfied with the High Court Judge's order, the plaintiffs appealed.

[9] Parliament has provided that a defendant, placed in the position such as the present, the opportunity to avoid the plaintiffs "stale" claim. Section 7(5) enables them to raise a procedural bar preventing the plai