Haji Abdul Malek Bin Haji Ahmad J:

On 19 November 1991, the defendant had applied by summons in chambers at encl. 15 for the plaintiff's action against them to be dismissed with costs as it disclosed no reasonable cause of action pursuant to O. 18 r. 19(1)(a) of the Rules of the High 1980 (hereinafter "the Rules") .

On 9 December 1991, the plaintiff had filed a summons in chambers at encl. 18 applying to expunge from the Court's records and to strike out pursuant to O. 18 r. 19(1) of the Rules the defences of the defendant filed on 21 December 1990 and 27 May 1991 respectively on the grounds that they disclosed no reasonable cause of defence, are scandalous, frivolous or vexatious, may prejudice, embarrass or delay the fair trial of this action or are otherwise an abuse of process of Court, are irregular, and that judgment be entered for the plaintiff with costs of this action and costs occasioned by the application on the grounds that the defendant had failed to serve both the defences in compliance with the Rules, and that all further proceedings be stayed.

On 27 January 1992, the learned Senior Assistant Registrar had allowed the defendants application at encl. 15 on the grounds that the action was time barred. The plaintiff had accordingly filed an appeal at encl. 20 against that decision on 30 January 1992 and when the parties appeared before me on 20 May 1992, learned Counsel for the plaintiff had argued that although both encl. 15 and 18 had been fixed to be heard together, only encl. 15 had been heard by the learned Senior Assistant Registrar. In the process of arguments, she had submitted a fair bit on encl. 18 as well for which I had stopped her, as the appeal was only with regard to encl. 15, and having adjourned to decide, I had on 10 June 1992 allowed the appeal against the decision in respect of encl. 15 with costs on the grounds that the pleadings were in issue and that since the application was under O. 18 r. 19(1)(a) of the Rules , no affidavit evidence was admissible.

On 24 January 1994, the parties appeared before me for encl. 18 but learned Counsel for the defendant had applied for a postponement as she was not prepared and was leaving the firm. Learned Counsel for the plaintiff had no objections. On 27 April 1994, learned Counsel for the plaintiff had asked for an adjournment to file an affidavit in reply and learned Counsel for the defendant had readily agreed because he wanted another summons in chambers at encl. 40, which he had filed on 20 April 1994, to be heard together with encl. 18.

The application at encl. 40 was for leave for the defendant to make the application, for an extension of time to make the application, for leave to file a defence to the action and consequently for leave and extension of time to file the defence within fourteen days of the order, costs in the cause, any other relief deemed suitable and appropriate by the Court, or for a declaration that by necessary implication the order of Court dated 20 May 1991 had given the defendant leave to file the defence to the action within a reasonable time and that the statement of defence is valid and in order, costs in the cause and any further relief which the Court deemed suitable and appropriate. In effect, the first limb of that application was for an extension of time to file a third defence within fourteen days of the order and the second limb was for the Court to declare the second defence valid.

At the hearing of both encls. 18 and 40 on 7 August 1994, learned Counsel for the plaintiff had submitted that the further affidavit of the defendant at encl. 38 filed on 10 April 1994 should be struck out in view of O. 32 r. 13(2)(b) of the Rules as it had been filed without obtaining leave of the Court. He added that the defendant had filed two defences but both were out of time and without the leave of the Court for enlargement of time. In fact, he said, the second defence was an amendment of the first without leave to amend th