A plaintiff cannot enter Judgment in default for claims seeking specific reliefs like injunctions and must proceed as if the defendant had entered an appearance.

JUDGMENT

[Enclosure 27]

Leong Wai Hong JC:

Introduction

[1] This Judgment deals with an issue which I find some lawyers are not familiar with.

[2] The issue is what is the next step a plaintiff should take if a defendant fails to enter an appearance. Should he enter Judgment in default of appearance to Writ or apply for leave to enter Judgment in default of appearance to Writ or proceed with the action as if the defendant had entered an appearance?

Court Proceedings

[3] The plaintiff is the Minister in the Prime Minister's Department for Religious Affairs.

[4] He filed a defamation suit against the defendant who according to the plaintiff goes by the monikers "Sir Azri" and "Papagomo". In the writ, the plaintiff prayed for injunctions, general damages, exemplary damages, aggravated damages and punitive damages, interest and costs.

[5] The defendant failed to enter an appearance. Hence, the plaintiff filed an application before me in encl 27 for leave to file and/or enter Judgment in default of appearance to Writ.

Issue

[6] What is the next step a plaintiff should take if a defendant fails to enter an appearance. Should he enter Judgment in default of appearance to Writ or apply for leave to enter Judgment in default of appearance to Writ or proceed with the action as if the defendant had entered an appearance?

The Law

[7] A perusal of O 13 of the Rules of 2012 ("ROC 2012") and relevant case law provides the following guidance:

i. A plaintiff can enter Judgment in default of appearance to Writ if his claim is for a liquidated demand only, or for unliquidated damages only, or for detinue only or for a claim for possession of immovable property only; or for a claim for two or more of the claims mentioned here and no other claim.

[See Order 13 rr 1 to r 5 ROC 2012 and Lai Yoke Ngan & Anor v. Chin Teck Kwee & Anor, [1997] 2 MLJ 565 per Gopal Sri Ram JCA].

ii. A plaintiff cannot enter Judgment in default of appearance to Writ if his claim is for a relief other than a claim for liquidated demand, unliquidated damages, detinue or for possession of immovable property.

[See Order 13 r 6(1) ROC 2012 and Lai Yoke Ngan & Anor v. Chin Teck Kwee & Anor, [1997] 2 MLJ 565 per Gopal Sri Ram JCA].

iii. Therefore, a plaintiff cannot enter Judgment in default of appearance to Writ if his claim is for a declaration, an account, injunction, specific performance or rectification or other reliefs other than a claim for liquidated demand, unliquidated damages, detinue or for possession of immovable property. The plaintiff has to proceed with the action as if the defendant had entered an appearance.

[See Order 13 r 6(1) ROC 2012, Lai Yoke Ngan & Anor v. Chin Teck Kwee & Anor, [1997] 2 MLJ 565 per Gopal Sri Ram JCA and Malaysian Civil Procedure 2021 Vol 1 Sweet & Maxwell at 13/6/1].

iv. If a plaintiff enters Judgment in default of appearance to Writ in breach of O 13 rr 1 to 6 ROC 2012 it will be set aside ex debito justitiae.

[See Lai Yoke Ngan & Anor v. Chin Teck Kwee & Anor, [1997] 2 MLJ 565 per Gopal Sri Ram JCA and Lam Kong Co Ltd v. Thong Guan & Co Pte Ltd, [1985] 2 MLJ 429; [1985] CLJ 181 Supreme Court per Abdul Hamid CJ (Malaya), later CJ, Malaysia]

[8] The philosophy underlying O 13 r 6(1) ROC 2012 for requiring a plaintiff to proceed as if the defendant had entered an appearance is that notwithstanding the non-appearance of a defendant, specific reliefs claimed by a plaintiff like declaration, injunction, specific performance and rectification are discretionary. The plaintiff is required to deliver his statement of claim and satisfy the Court that his case is a fit one for the grant of specific relief.

[See Lai Yoke Ngan & Anor v. Chin Teck Kwee & Anor, [1997] 2 MLJ 565, p 293 per Gopal Sri Ram JCA.]

[9] This is what the Federal Court in Lai Yoke Ngan & Anor v. Chin Teck Kwee & Anor, [1997] 2 MLJ 565 said through per Gopal Sri Ram JCA at pp 291 to 293:

.... it is beyond dispute that the plaintiffs, by the indorsement to the writ, principally claimed specific re