This is an application by the defendant under O 18 r 19(1)(a)–(d) of the Rules of the High Court 1980 ('the RHC') for the striking out of the writ and the statement of claim of the plaintiffs. The application also includes a prayer for an order that the filing of the defence be deferred to 14 days after the disposal of this application. By this last prayer, I take it to mean that in the event that this application for striking out is unsuccessful, the defendant requests for 14 days' extension to file the defence.

As regards this second prayer of the defendant concerning the deferment of the statement of defence, no ground is given and nothing at all was mentioned in the affidavit in support and no submissions made by learned counsel on the matter. I believe the defendant assumes that as a matter of course when unsuccessful in the first prayer, an order on the second prayer would be made giving it time to file the necessary defence. But under the RHC, the filing of the defence outside the time allowed, unless agreed upon, requires the leave of the court with good reason given. In this case, in the absence of any reason given, this second prayer must be dismissed. The defendant to date has not filed its defence. A memorandum of appearance was filed on 7 December 1994 and this present application was filed on 19 December 1994 seeking the two orders mentioned earlier. By O 18 r 2(1) of the RHC, the defendant, if it intends to defend the action, is required to serve the defence on the plaintiffs, in this case, by 3 December 1994 as the writ was served on 24 November 1994 unless leave to the contrary is given. For such leave to be given, a good reason must be provided for the consideration of the court.

I will next consider the merits of the first prayer for the striking out of the writ and the statement of claim of the plaintiffs. The application is on all the four grounds provided by O 18 r 19(1) which includes ground (a) that the said writ and statement of claim of the plaintiffs disclose no reasonable cause of action. For this ground, the law is settled that no evidence shall be admissible. Apart from the authorities, it is expressly stated in O 18 r 19(2) itself. However, learned counsel for the defendant in his submission tried very hard to convince me that on the basis of the court's inherent jurisdiction, evidence is allowable to establish that the pleadings of the plaintiffs disclose no reasonable cause of action notwithstanding sub-r (2). In support of his contention, he cited the case of Suppuletchimi v Palmco Bina Sdn Bhd [1994] 2 MLJ 368 where it was held that under its inherent jurisdiction, the court is entitled to look at and decide upon the contents of the affidavits. With all respect due to my learned brother who decided the matter, I beg to differ in the light of the settled authorities and the law on the matter. As stated in the Federal Court case of New Straits Times (Malaysia) Bhd v Kumpulan Kertas Niaga Sdn Bhd & Anor [1985] 1 MLJ 226 at p 227 by Mohamed Azmi FJ delivering the judgment of the court, referring to the case of A-G of the Duchy of Lancaster v London and Northwest Rlwy Co [1892] 3 Ch 274, it is clear law that in an application to strike out pleadings under O 18 r 19(1)(a), no evidence shall be admissible, and the court must consider only the pleadings for the purpose of determining whether the statement of claim disclosed no reasonable cause of action or the statement of defence disclosed no defence. The test to be applied (for purpose of O 18 r 19(1)(a)) is whether on the face of the pleadings, the court is prepared to say that the cause of action or the defence is obviously unsustainable. It makes no diff erence even if the court is acting in pursuance of its inherent jurisdiction. This is clearly borne out in the case of Wenlock v Moloney[1965] 2 All ER 871, which was an application by the defendant pursuant to the equivalent Rules of the Supreme Court 1965 O 18 r 19 and a