(delivering the Judgment of the Court):

This is an appeal against the order of the High Court at Kuala Lumpur made on February 16, 1984 wherein the entire amended Statement of Defence of the appellants/defendants was struck out under order 18 rule 19, Rules of the High Court and Interlocutory Judgment entered against them for damages to be assessed in respect of two libellous articles published by the Malay Mail, a national newspaper of which the appellants are the proprietors, publishers and printers.

The respondents'/plaintiffs' Summons-in-Chambers dated December 24, 1982 was heard in Chambers together with the appellants' application to amend the Statement of Defence. The respondents' application to strike out the Defence was supported by two affidavits of Sheikh Abdullah (4th respondent) sworn on December 22, 1982 and March 4, 1983, and was opposed by the affidavit in reply of Asiah Mohd. Yusoff, the appellants' legal officer, sworn on March 1, 1983. At the joint hearing of both applications in Chambers on May 6, 1983, the learned Judge dismissed the respondents' application and allowed the appellants' application to amend their Defence. But on further arguments in open court when a third affidavit of Sheikh Abdullah sworn on January 6, 1984 and a second affidavit of Asiah sworn on January 11, 1984 were considered, the learned Judge reversed her earlier decision in Chambers by ordering the entire Statement of Defence of the appellants to be struck out.

The respondents' application was made under Order 18 Rule 19, Rules of the High Court on the basis that the Statement of Defence disclosed no defence; it is scandalous, frivolous and vexatious; and it is an abuse of the process of the court.

During the hearing in Chambers, Mr. Abraham, counsel for the appellants, raised a preliminary objection that the respondents' counsel did not make any submission that the Statement of Defence was scandalous, frivolous and vexatious, and that although three grounds were raised in the Summons, the respondents' application was argued solely on the basis that the Statement of Defence disclosed no Defence. In the circumstances, the court should not look at the affidavits in deciding whether the appellants' pleading disclosed no Defence. It is not clear from the appeal records whether the objection of Mr. Abraham was upheld when the learned Judge dismissed the respondents' application in the first instance. It is equally not clear whether the objection was overruled when the Order-in-Chambers was reversed after arguments in open court. Be that as it may, we are satisfied on perusing the appeal records that both in Chambers and open court the respondents' application to strike out the Defence proceeded entirely on the basis that the Statement of Defence did not disclose any Defence under order 18 rule 19(1)(a) R.H.C. although the respondents' Summons and paragraph 12 of Sheikh Abdullah's second affidavit did mention the defence of beneficial ownership as scandalous, frivolous and vexatious. Order 18 rule 19 provides:-

"19(1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement, of any writ in the action, or anything in any pleading or in the indorsement, on the ground that -

(a) it discloses no 0reasonable cause of action or defence, as the case may be; or

(b) it is scandalous, frivolous or vexatious; or

(c) it may prejudice, embarrass or delay the fair trial of the action; or

(d) it is otherwise an abuse of the process of the Court;

and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

(2) No evidence shall be admissible on an application under paragraph (1)(a).

(3) This rule shall, so far as applicable, apply to an originating summons and a petition as if the summons or petition, as the case may be, were a pleading."

In Golden Century Development Sdn Bhd v Ganhoe [1982] CLJ 106 (Rep), [1982] CLJ 536, [1983] 1 MLJ