Hishamudin Yunus J:

This summons in chambers (encl. 55) is an interlocutory application by the plaintiff to amend the statement of claim.

At the hearing of the application, the Assistant State Legal Adviser, Selangor, Encik Kamarulzaman, appearing for the second and third defendants, informed the court that he has no objection to the application.

The first defendant, however, objected to the application. A preliminary objection was raised by Cik Deborah Kaur, the learned counsel for the first defendant, regarding the summons in chambers. She submitted that the summons in chambers was defective by reason of non-compliance with O. 32 r. 1 and Form 62 of the Rules of the High Court (the 'RHC'). She argued that there was non-compliance because the grounds for the application to amend the statement of claim were not stated in the summons in chambers. Learned counsel contended that, in the light of the word 'must' in O. 32 r. 1, it was mandatory for the applicant/plaintiff to state the grounds in the summons in chambers and that the failure to do so was fatal to the application.

Order 32 r. 1 states:

1. Mode of making application.

Except as provided by Order 25 rule 7, every application in Chambers must be made by summons in Form 62. (emphasis added)

Form 62 of Appendix A of the RHC sets out the format of the summons as follows:

No. 62

SUMMONS IN CHAMBERS (O. 32 r. 1)

(Title as in action)

Let all parties concern attend before the Judge (or Registrar) in Chambers on..., the ... day of ..., 19 ..., at ... a.m. on the hearing of an application on the part of (state nature of the application).

The grounds of the application are (state the grounds)

Dated the ... day of ... 19 ...

Entered No. ... of 19 ...

Clerk

(Seal)

...

Registrar

This summons is taken out by the plaintiff (or as the case may be) of (state address).

To the defendant (or as the case may be).

In support of her argument, Cik Deborah Kaur, in her written submission, cited Dr Woo Kin Chong v. Mary Ou Holdings Sdn Bhd[1997] 5 CLJ 164 where Nik Hashim JC (as he then was) held (at p. 168):

Accordingly, the notice of motion must contain the grounds. This is a basic requirement. The grounds must be stated within the four corners of the notice itself. Affidavit is not a ground, but it contains evidence. It is a separate document from the notice and its purpose is to verify the facts in the grounds. The affidavit cannot supply the missing grounds which are required to be set out in the grounds in general terms to be stated in the notice itself. The notice without the grounds is incomplete and irregular. An incomplete notice is as good as no notice at all.

The learned counsel for the plaintiff, Encik Kirubakaran, on the other hand, in his written submission, argued that there was compliance with Form 62 in that the grounds have been stated in general terms in the summons in chambers; and learned counsel further submitted that there was also in the summons reference to the grounds in the supporting affidavit.

In the present case, it is stated in the summons in chambers as follows (I shall only refer to the relevant portion of the summons):

Alasan-alasan membuat adalah bahawa fakta-fakta yang dicadangkan untuk disertakan dalam Pernyataan Tuntutan adalah penting dan seharusnya disertakan untuk mendedahkan segala maklumat berkenaan kepada Mahkamah Terhormat dan tidak memprejudiskan Defendan-Defendan dan selanjutnya seperti dinyatakan di dalam Afidavit Chellappa a/l K. Kalimuthu yang diikrarkan dan difailkan di sini.

Learned counsel for the plaintiff fortified his contention by citing BSN Commercial Bank (Malaysia) Bhd v. KDG Holdings (M) Sdn Bhd & Ors[1999] 2 CLJ 180 where Abdul Aziz Mohamad J held (at p. 182):

It was submitted that the summons in chambers by which the plaintiffs applied for summary judgment did not comply with O. 32 r. 1 of the Rules of the High Court in that it did not state the grounds of the application although it did bear a statement referring for the gro