The Court of Appeal holds discretionary power to extend time limits set in prior orders, ensuring justice and finality in litigation despite functus officio principles.

Wong Kian Kheong JCA:

A. Background

[1] For ease of reference, we shall refer to parties as they were in the High Court (HC).

[2] Three plaintiffs (Plaintiffs) have filed a suit in the HC (Suit) against two defendants (Defendants) for, among others, an order of specific performance of a Sale and Purchase Agreement dated 24 February 2016 (SPA).

[3] According to the SPA, among others, the Defendants as co-proprietors of a piece of land held under Grant 47136, Lot no 4472, Mukim Ulu Langat, Ulu Langat District, Selangor (Land), had sold the Land at a price of RM2.6 million to five co-purchasers, namely, the Plaintiffs, Mr Soo Teck Lee (Mr Soo) and Ms Lim Siew Kien (Ms Lim).

[4] The defence in the Suit had pleaded, among others, that the SPA was a sham agreement because the Land was actually used as a security for certain purchases between the parties.

[5] The Defendants filed an application in the HC to strike out the Suit on the ground that the Plaintiffs had failed to join Mr Soo and Ms Lim as parties in the Suit (Defendants' Striking Out Application).

[6] The learned HC Judge dismissed the Defendants' Striking Out Application with costs [HC's Dismissal (Defendants' Striking Out Application)].

[7] The Defendants appealed to the Court of Appeal (CA) against the HC's Dismissal (Defendants' Striking Out Application) [Defendants' 1st Appeal (CA)].

[9] With regard to the Defendants' 1st Appeal (CA), the following order was made by CA on 25 August 2021 [CA's Order (25 August 2021)], among others:

(1) the Defendants' 1st Appeal (CA) was dismissed {para (a) [CA's Order (25 August 2021)]}; and

(2) the HC's Dismissal (Defendants' Striking Out Application) was varied wherein the Plaintiffs were required to join Mr Soo and Ms Lim as co-plaintiffs or co-defendants in the Suit within 14 days from the date of CA's Order (25 August 2021) {14 Days Period [para (b)]} and if the Plaintiffs fail to do so, the Suit shall stand as struck off {para (b) [CA's Order (25 August 2021)]}.

[10] Pursuant to para (b) [CA's Order (25 August 2021)], on 2 September 2021 the Plaintiffs filed an application to join Mr Soo and Ms Lim as parties in the Suit [Plaintiffs' Joinder Application (HC)]. The Plaintiffs' Joinder Application (HC) was supported by an affidavit purportedly affirmed on 2 September 2021 by the 2nd plaintiff (2nd Plaintiff) before a Commissioner for Oaths, YM Tengku Fariddudin bin Tengku Sulaiman (CFO).

[11] The Defendants objected to the Plaintiffs' Joinder Application (HC) on the ground that, among others, the 2nd Plaintiff's affidavit had not been affirmed before the CFO.

[12] The learned HC Judge struck out the Plaintiffs' Joinder Application (HC) with:

(1) no order as to costs; and

(2) liberty to file a fresh Plaintiffs' Joinder Application (HC) subject to "direction" (arahan) which may be obtained by the Plaintiffs from the CA with regard to the 14 Days Period [para (b)] (time period for the Plaintiffs to join Mr Soo and Ms Lim as parties in the Suit)

[HC's Order (Plaintiffs' Joinder Application)].

[13] The Defendants have filed an appeal to CA against the HC's Order (Plaintiffs' Joinder Application) [Defendants' 2nd Appeal (CA)].

B. Proceedings In CA

[14] In the Defendants' 1st Appeal (CA), the Defendants filed a notice of motion in Court encl no 19 [Encl 19 (Defendants' 1st Appeal)] for the following orders from the CA, among others:

(1) an order to enforce para (b) [CA's Order (25 Augu