Hashim Yeop A Sani J:

This is an application way of Notice of Motion by the defendants seeking for an order that the Specially Indorsed Writ of Summons dated 23 August 1974 be set aside for being in noncompliance of O. 48A R 1 of the Rules of the Supreme Court, 1957. Plaintiffs are a firm of contractors having their place of business in Tawau, Sabah, and the defendants are an insurance company having their registered office in Kuala Lumpur.

On 23 August 1974 plaintiffs, suing as a firm, caused to be issued a Specially Indorsed Writ against the defendants claiming inter-alia a sum of $26,000 and consequential reliefs. The writ was served on the defendants and the defendants entered conditional appearance and gave notice of same to the plaintiffs' solicitors.

In this Motion the sole preliminary issue is whether on the construction of O. 48A R 1 of the Rules of the Supreme Court, 1957 plaintiffs as a firm have capacity to sue in the name of the firm. For ease of reference O. 48A R 1 is reproduced below:

1. Any two or more persons claiming or being liable as co-partners and carrying on business within the jurisdiction may sue or be sued in the name of the respective firms,