Suriyadi Halim Omar J:

[1] The appellant-cum-defendant, Leong Sing, was a partnership between two persons namely Teh Peng Lam and Teh Chwee Swi. During the subsistence of the partnership business went along as usual but unfortunately a cause of action accrued on 7 August 1987 when this partnership defaulted in its payment for items which were bought and delivered from the respondents. Despite that default no legal action was undertaken by the respondents to recover the sum owing which totalled RM16,350.39. On 1 November 1989 that partnership turned into a sole proprietorship when Teh Peng Lam withdrew from the arrangement thus leaving Teh Chwee Swi on his own. On 9 January 1991 Teh Chwee Swi passed away. Subsequent to all those dates and significant events the respondents (plaintiffs) served two letters of demand dated 21 May 1992 and 4 June 1992 for the above said sum but remained unpaid. On 20 June 1992 the respondents filed a writ against Leong Sing, based on the original name of the partnership, followed by the filing of the defence on 18 August 1992. All these facts were not disputed by both parties.

[2] On 25 May 1993 the respondents under O 14 r 21(1) of the Subordinate Courts Rules 1980 applied for the defence to be struck out. This rule reads:

The Court may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement, of any summons or anything in any pleading or in the indorsement, on the ground that:

(a) it discloses no reasonable cause of action or defence, as the case may be; or

(b) it is scandalous, frivolous or vexatious; or

(c) it may prejudice, embarrass or delay the fair trial of the action; or

(d) it is otherwise an abuse of the process of the Court;

and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

[3] For purposes of this appeal the grounds were that of (a), (b) and (c) only. On 16 January 1996 the respondents successfully obtained the order that the defence be struck out with a consequential order of a summary judgment. On 20 January 1996 the appellant filed the notice of appeal stating dissatisfaction with the whole judgment meted out by the Magistrate's Court. On 23 September 1996 I allowed the appeal with costs. The appellant had argued before me that:

(1) the action was bad in law as not only had the partnership ceased to exist when the action was commenced but the litigation against the appellant defendant was per its original name and thus not in order;

(2) the partnership was not even served with the summons;

(3) Teh Peng Lam was instead served with the summons although not named as a defendant in the action;

(4) the estate of Teh Chwee Swi was not included as a party;

(5) the date when the cause of action accrued was not provided in the statement of claim; and

(6) the appellant's defence was not frivolous and vexatious thus deserving the Court's consideration.

[4] Before pursuing with the appeal, to ensure no procedural mistake would be committed along the way, I took the precaution of ascertaining the legal foundation of this appeal. The relevant provision applicable zeroed in on O 49 r 6 of the Subordinate Courts Rules 1980 which read:

Notwithstanding anything contained in this Order, an appeal shall lie to a Judge in chambers from any decision made by the Court other than a decision made after trial.

[5] As this was a decision which did not emanate from a trial the position would be quite similar to that of appeals from decisions of the Registrar of the High Court which end up with the Judge in chambers (O 56 r 1 Rules of the High 1980). Cases which go direct to the Judge in chambers on appeal not only will undergo a process of actual re-hearing but to be treated differently to that of cases tried fully in the subordinate Courts. This interpretation was clearly laid down by the Federal Court through Edgar Joseph Jr FCJ in Tuan Haji Ahmed Abdul Rahman v. Arab Malaysian Finance Bhd, [1996] 1 MLJ 30 at p 248;