GROUNDS OF DECISION

1. There are two appeals against the orders of the Sessions Court this morning; one against the order of dismissal of the appellants preliminary objection (encl. 2), and the other order is a conditional leave to defend (encl. 7) therein.

2. The respondent took out an application dated 6.3.97 under O. 14 r. 21 of the Rules of Subordinate Court 1980 to strike out the appellants' defence. The application was supported by an affidavit of the same date, of Foo Chow Lee (the respondent's manager), which was served on the appellants on 31.3.97 i.e. 25 days after the filing of the application. At the hearing of the application, the appellants did not raise any objection but had applied quite a few times for adjournments of the hearing to enable them to file an affidavit in reply. No affidavit was filed by the appellants. Subsequently at the hearing of the application, the appellants raised a preliminary objection against the admission of Foo's affidavit as it was served out of time in [2] contravention of O. 24 r. 4(2)(a) of the Rules of Subordinate Court, which is in para materia with O. 32 r. 13(2) of the Rules of the High Court 1980. The learned Sessions Court Judge overruled the objection. Hence, the appellants appealed.

3. In a written submission, the appellants contended that under O. 24 r. 4(2)(a) Rules of Subordinate Court, the court has no discretion to allow the use of the affidavit of Foo as it was served out of time; and the authority is PERBADANAN NASIONAL INSURANS SDN BHD v PUA LAI ONG (1996) 3 MLJ 85 . Further they contended that O. 24 r. 4(2)(a) is mandatory and it cannot be waived by the other party: TING HUA YIEW v ACE COMMERCIAL ENTERPRISE SDN BHD (1996) 2 MLJ 678 ; and SARAWAK ELECTRICITY SUPPLY CORP v MS SHIPPING SDN BHD (1998) 2 MLJ 83 .

4. Learned counsel for the respondent submitted that the Notice of Application and the affidavit of Foo were served on the appellants on 31.3.97, and at the hearing of the application, the appellants had applied for an adjournment, and later a few adjournments, in order to file an affidavit in reply. No affidavit was filed. Subsequently, at the hearing on 24.6.97 the appellants raised a preliminary objection that Foo's affidavit was served out of time in contravention of O. 24 r. 4(2)(a). It should be noted that the appellants did not raise any objection in the first hearing of the application and as such he was deemed to have waived the right; and in support he cited two cases: MALAYAN BANKING BHD v LEE TEE YONG & ORS (1994) 3 MLJ 715 ; and STRUCTURAL CONCRETE SDN BHD v WING TECK HOLDINGS (1997) 1 MLJ 581 .

5. It is clear that at the first hearing of the respondent's application, the appellants had not raised an objection but had requested for an adjournment in order to file an affidavit in reply. It seems that after a few adjournments had been granted to enable the appellants to file an affidavit, no affidavit was filed. This was not disputed. By the appellants' conduct, it is [3] deemed that they have waived the right to object. The Malayan Banking case (supra) is in a similar situation where the defendant did not raise any objection at the first hearing of the case, but sought an adjournment to enable him to file an affidavit in reply. The court held that the defendant had waived his right to object. This was approved by the Federal Court; re (1996) 3 MLJ Ixiv. Similarly in a Court of Appeal case of Structural Concrete case (supra) Shankar CAJ said that if a party adversely affected by the filing does not raise an objection, and takes a step in the action, the non-compliance of the prescribed time will be regarded as having waived.

6. In the instant case, the learned Sessions Court Judge, on the evidence available, was correct in overruling the appellants' objection, and as such the appeal is hereby dismissed with costs.

7. The second appeal is against a specific part of the order i.e. giving a conditional leave to defend to the appellants. The issue in th