Hashim Yusoff JCA:

[1] This is an appeal against the decision of the High Court which had dismissed the appellant/plaintiff's claim against the respondent/defendant. After hearing submission from both parties we unanimously dismissed the appeal. We now give our reasons for doing so.

Background Facts

[2] On 28 December 1983 the appellant had given overdraft facilities of RM250,000 to the respondent to finance its housing project in Taman Dangi, Kuala Pilah (the "said housing project"). Subsequently the respondent defaulted in the repayment of the overdraft facility. The appellant then filed the present suit in the High Court on 5 April 1996 to recover, inter alia, the outstanding overdraft of RM1,982,816.83 which was due at 29 February 1996.

[4] On 15 November 1996 the learned judicial commissioner heard the application under O. 33 RHC and held that the appellant/plaintiff's claim was statute barred and accordingly dismissed the appellant's claim with costs. Hence this appeal by the plaintiff/appellant to this Court.

[5] There were only two issues to be determined in this appeal ie:

(i) Was the plaintiff's action statute barred?

(ii) Was the learned judicial commissioner correct in dismissing the appellant's claim pursuant to O. 33 r. 5 of the RHC ?

[6] Learned counsel for the appellant submitted that the learned judicial commissioner had exceeded his jurisdiction by dismissing the plaintiff's claim because the issues were not formulated yet. The respondent/defendant had made an application for an order pursuant to O. 33 r. 2 Rules of the High (RHC) 1980 , that the preliminary issue or question of limitation of the action be set down for hearing and for direction to be given as to the hearing of the matter. It would be only after the learned judicial commissioner agreed to hear the preliminary issue and gave such directions should he then hear the merits of the preliminary issue. However it was submitted that the learned judicial commissioner had exceeded his jurisdiction by summarily dismissing the appellant's/plaintiff's claim, without formulating the question.

[7] Reference was made to the case of Newacres Sdn Bhd v. Sri Alam Sdn Bhd, [1991] 1 CLJ (Rep) 321 ; [1991] 3 MLJ 474 where the appellant had applied to dismiss the respondent's action against them on two grounds: "(a) ... (b) that the respondent had not referred the dispute between the parties to arbitration. The application was dismissed in the High Court." The Supreme Court held:

(1) There were several issues in this case which must be proved by extrinsic evidence. As such, these are matters that ought to be tried at the trial proper and they cannot be decided by recourse to O. 33 r. 2 read together with O. 18 r. 11 of the Rules of the High 1980 .

[8] Further, Jemuri Serjan CJ (Borneo) at p. 475 para H (right) said:

If learned counsel for the appellant relied on O. 33 r. 2 , in the first place, there should be an application for an Order under r. 2 and if the Court allows the application, then the Court may give direction as to the manner in which the question or issue shall be stated.

[9] Learned counsel for the respondent however submitted that the learned judicial commissioner had considered the issue of limitation raised by the respondent and went into the merits before making the order that the appellant/plaintiff's claim against the respondent be dismissed with costs pursuant to O. 33 r. 2 of the RHC 1980 . Reference was made to the Appeal Record at p. 227 paras. 4, 5, 7 and 8 whereby the issues regarding the first notice of demand and whether th