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SUPREME COURT, KUALA LUMPUR
ADZMI ALI & ANOR. – Appellant
Versus
MOHD. ISA KASAD – Respondent
[Civil Appeal No. 277 Of 1986]
George Seah SCJ:
This was an appeal against the dismissal of an application by the appellants (defendants in the Court below) to set aside the interlocutory judgment in default of appearance dated 15 March 1985 as well as a judgment assessing damages in the sum of RM241,032 dated 15 June 1985. We think we ought to allude to the relevant facts.
The respondent (plaintiff in the Court below) took out a writ against both the appellants claiming damages for personal injuries and pecuniary losses following a motor accident which took place on 4 July 1983. When the appellants did not enter an appearance after having been duly served with the writ and the statement of claim default judgment was entered against them on 15 March 1985 with damages to be assessed. On 16 May 1985 the appellants applied by summons-in-chambers for the interlocutory judgment in default of appearance to be set aside. The application was supported by an affidavit affirmed by one Ahmad Sukarno bin Abdullah Nawawi. After hearing the oral submissions of learned Counsel for the appellants and the respondent the learned Judge dismissed the application with costs to be taxed on 7 June 1985. There was no appeal against this order.
On 15 June 1985 damages were assessed in the total sum of RM241,032 and judgment was accordingly entered in favour of the respondent against both appellants with costs. Notice of appeal against this judgment was lodged on 9 July 1985 vide Supreme Court Civil Appeal No. 232 of 1985.
However, on 19 September 1985 the appellants took out a notice of motion for the interlocutory judgment in default of appearance dated 15 March 1985 and the judgment dated 15 June 85 to be set aside and that leave be given to them to defend the action. This application was supported by seven affidavits affirmed by (1) C. Sri Kumar, (2)Shanmuganathan s/o Thambiah, (3) Atwi bin Munawar, (4) Asmuni bin Malik, (5) Sgt.Detective Mohd. Nor bin Muhamad and (6) Ahmad Sukarno bin Abdullah Nawawi and (7) C. Sri Kumar. On 3 July 1986 the learned Judge dismissed the motion with costs to the respondent to be taxed. The appellants filed notice of appeal against the decision of the learned Judge on 21 July 1986 vide Supreme Court Civil Appeal No. 277 of 1986. By consent it was agreed by learned Counsel for the appellants and the respondent that Supreme Court Civil Appeal No. 277 of 1986 be heard first and that the other appeal be stood down.
Learned Counsel for the appellants had submitted that since the relief claimed in the notice of motion was different from that claimed in the summons-in-chambers the appellants were entitled to make the second application. In the summons-in-chambers the appellants applied for the default judgment to be set aside and that they be allowed to file a statement of defence; whereas in the notice of motion they applied for both the interlocutory judgment in default of appearance and the judgment assessing the damages in the total sum of RM241,032 to be set aside and that they be granted leave to defend the action. In our judgment there was no merit in this submission.
Now, when a defendant fails to enter an appearance to a writ for an unliquidated sum,the plaintiff may enter interlocutory judgment against him for damages to be assessed [see O. 13 r. 2 of the Rules of the High 1980, . On the other hand, if the claim of the plaintiff is for a liquidated amount and the defendant defaults in entering an appearance within the specific time, final judgment for the sum claimed may be entered against him [see O. 13 r. 1(1)]. The Court may, on such terms as it thinks just,set aside or vary any judgment entered in pursuance of this order [see O. 13 r. 8]. In our opinion, the word "judgment' in O. 13 r. 8 means a "final" judgment under O. 13 r. 1(1) or an "interlocutory" judgment under O. 13 r. 2 thereof. The term "interlocutory" judgment means that such a judgment is interlocutory only as to amount and is final as to the right of the plaintiff to rec
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