Abdul Hamid J:

This is an application by the defendants for an order to set aside judgement in default of defence entered against the defendants on 29 November 1969.

The writ of summons and the statement of claim were served on the defendants on 1 November 1969. They filed the memorandum and notice of appearance on 6 November 1969. On 5 November 1969, the defendants' solicitors applied for further, and better particulars. By letter dated 24 November 1969, the plaintiffs' solicitors wrote to the defendants' solicitors drawing their attention to r. 7B of O. 19 of the Rules of the Supreme Court, stating that the request for particulars at that stage was premature. They also warned that they were proceeding to enter judgment in default of defence at the expiry of the time for defence.

The defendants' solicitors by letter dated 25 November 1969 informed the plaintiffs' solicitors that they would file an application in Court for an order for further and better particulars. An application was forwarded to the senior assistant registrar, Kuala Lumpur on 2 December 1969. The senior assistant Registrar informed the defendants' solicitors that judgment in default of defence had been entered on 29 November 1969.

The affidavit affirmed by Liew Kuet Hin, manager of the defendant company, stated that the judgment was entered while they were preparing to file an application for an order for further and better particulars and the plaintiffs' solicitors were aware of this. And that these particulars were necessary to enable the defendants to file their defence.

The plaintiffs in their affidavit contend that the defendants are not entitled to the particulars asked for. It was the practice of the plaintiffs to give their customers at the time of delivery of the goods, an invoice stating the nature, quantity, price per unit and delivery price, of goods then delivered. Again at the end of the month. a monthly statement was prepared, stating reference to invoice, quantity and costs of goods delivered during the month and payments received during the same month.

The application was adjourned to open Court for hearing. Mr. LM Ong, Counsel for the defendants argued that judgment in default was premature and that at the time when judgment was entered, time for delivery of the defence had not run out or expired. He submitted that time runs from the time the plaintiffs' solicitors refused to furnish the particulars. He cited the case of Soona Sanmugam v. Wee Teow Beng & Anor [1932] SSLR 91, where it was held that -

Order XIX, r. 7A, of the English Rules of the Supreme Court, has effect in the Colony by virtue of s. 3 of the Civil Procedure Code. It enables a party to a suit to apply by letter for particulars before resorting to a summons. A request for particulars by letter is not complied with until all the particulars are given. The time for the next subsequent pleading runs from the date on which all the particulars required have been given."

In that case, the particulars were delivered. The learned Judge considered the effect of the delivery of particulars on request by letter in the light of s. 241 of the Civil Procedure Code, which is similar to the existing r. 8 O. 19 of our Rules of the Supreme Court which reads -

The party at whose instance particulars have been delivered under a judge's order, shall unless the order otherwise provides, have the same length of time for pleading after the delivery of the particulars that he had at the return of the summons."

Murison CJ at pp 93 and 94 said -

... It would appear, therefore that r. 7A of the Rules of the Supreme Court is applicable in the Colony, so that an application for particulars by letter is to be treated in the same way as an order for particulars made by a Judge under s. 241 of the Code."

It is clear from the judgment that when his Lordship referred to "an application for particulars by letter" he was in effect referring to an application which had been complied with. In