Augustine Paul J:

This is an appeal from a decision of the learned senior assistant registrar who had dismissed the second defendant's application to strike out the plaintiff's application for summons for directions on the ground that it had been filed out of time and, in consequence thereof, the claim itself.

On 15 September 1995 the plaintiff filed its writ and statement of claim against the three defendants as guarantors in respect of overdraft facilities granted to one Syarikat Seri Belian Sdn Bhd. The writ was duly served on the three defendants. The plaintiff obtained judgment in default of appearance against the first and third defendants on 15 June 1996. The second defendant entered appearance on 30 October 1995 and filed his statement of defence on 21 November 1995. On 6 April 1996 the plaintiff filed an application for summary judgment against the second defendant pursuant to O. 14 of the Rules of the High Court 1980 ("the RHC"). The application which was contested by the second defendant was dismissed with costs by the learned senior assistant registrar on 22 November 1996. There was no appeal against the order made. No further steps were taken by the plaintiff till 29 January 1997 when its solicitors wrote to the solicitors for the second defendant to inquire whether the matter could be settled. The material parts of the letter read as follows:

We would appreciate it if you could let us know whether your client is prepared to settle the case.

Whilst we were unsuccessful in our O. 14 application, that does not mean your client is not liable on the facts once we go for trial.

Can you please take your client's instructions on the above matter and provide us with a reply within one month from date hereof failing which we will take steps to get the case ready for trial.

There was no response from the solicitors for the second defendant to this letter. The next step taken by the plaintiff was the filing of a summons for directions on 10 May 1997 which was fixed for hearing on 3 June 1997. In the meanwhile the solicitors for the second defendant filed an application on 2 June 1997 praying for an order, inter alia, that the summons for directions be struck out on the ground that it had been filed out of time and that the action be dismissed for want of prosecution. On the same day an unsealed copy of this application was served on the solicitors for the plaintiff. By letter dated 3 June 1997 the solicitors for the second defendant served on the solicitors for the plaintiff a copy of their affidavit in support of the application made by them. On 17 June 1997 the solicitors for the plaintiff received a sealed copy of the application and the affidavit in support of it from the solicitors for the second defendants. The learned senior assistant registrar heard the second defendant's application on 16 July 1997 and dismissed it on 23 July 1997. This appeal is by the second defendant against that order.

At the hearing of the appeal before me learned counsel for the plaintiff raised a preliminary objection to the effect that the second defendant's application and affidavit in support of the application were served on him out of time based on O. 32 of the RHC. The relevant rules of the Order are as follows:

2(1) Issue of a summons by which an application in Chambers is to be made takes place on its being sealed by an officer of the Registry.

(2) A summons may not be amended after issue without the leave of the Court.

3. A summons asking only for the extension or abridgment of any period of time may be served on the day before the day specified in the summons for the hearing thereof but, except as aforesaid and unless the Court otherwise orders or any of these rules otherwise provides, a summons must be served on every other party not less than 2 clear days before the day so specified.

13(1) Any party -

(a) filing an affidavit intended to be used by him in any proceedings in Chambers; or

(b) intending to use in