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2025 MarsdenLR 2824
HIGH COURT MALAYA SHAH ALAM
BHAVANASH SHARMA GURCHAN SINGH SHARMA & ANOR – Appellant
Versus
AIA BHD – Respondent
[Civil Appeal No: BA-12ANCC-3-02/2023]
An appeal against dismissal of a striking out application is incompetent if it falls under non-appealable matters as defined by statutory amendments; automatic striking out requires clear terms.
Headnote:(A) Courts of Judicature Act 1964 - Section 28(1)(c) - Rules of Court 2012 - Order 18 Rule 19 - Appeal against striking out application - Appeal dismissed as incompetent due to provisions disallowing appeals on striking out applications post-amendment - Court found extension of time justified and no grounds for striking out entire action - Dismissal for non-compliance deemed not automatic as clarity of terms is essential. (Paras 6, 8, 16)
(B) Appeals - Nature of appeal - An appeal can only be entertained if it falls within the stipulated provisions of the relevant law; here the amendment to non-appealable matters applied retrospectively, thus the appeal is dismissed. (Paras 6, 7)
Facts of the case:
The Appellants challenged the Sessions Court's dismissal of their application to strike out the Respondent's Statement of Claim, claiming the plaintiff's failure to provide required particulars prompted automatic dismissal per prior High Court order. Background established that prior extension for filing particulars was granted.
Findings of Court:
The Court affirmed the Sessions Court's dismissal, stating the appeal was incompetent as per statutory provisions and no justification existed for overriding the deferral of automatic striking out.
Issues: The main issues included whether the Statement of Claim was automatically struck out and the adequacy of particulars provided.
Ratio Decidendi: The Court highlighted the necessity of clear terms regarding compliance for automatic striking out and affirmed the lower court's exercise of discretion in allowing extensions of time.
Result: Appeal dismissed with costs.
| Table of Content |
|---|
| 1. dismissal of defendants' application in sessions court. (Para 1 , 3 , 4) |
| 2. extension of time to furnish particulars. (Para 5 , 10) |
| 3. appeal dismissed as incompetent under law. (Para 6 , 7 , 8) |
| 4. grounds for appeal and findings on particulars. (Para 9 , 11 , 14 , 15) |
| 5. clarification on the automatic striking out. (Para 12 , 13 , 16 , 17) |
Introduction
[1] This Appeal was filed against the Order of the Sessions Court dated 31 January 2023 that dismissed the Appellants/Defendants' application in encl 84 in the Court below. Enclosure 84 was filed on 27 October 2022 under O 18 r 19 of the Rules of Court 2012 and/or the inherent jurisdiction of the Court to strike out the entire Statement of Claim ("SOC") on grounds that:
(a) pursuant to an Order of the High Court dated 15 September 2022 ("HC Order"), the SOC had been struck out automatically on the Respondent/Plaintiff's failure to furnish further and better particulars of its SOC ("F&BP") within 2 days of the HC Order; and
(b) the F&BP served on 22 September 2022 was incomplete.
[2] I will refer to the parties as they were in the Court below.
Background Facts
[3] The HC Order had reversed an earlier Order of the Sessions Court that dismissed the Defendants' application for F&BP. Consequent to that reversal, it was understood by all parties that the prayers in the application for F&BP were therefore allowed, including the prayer for a default Order that the SOC be struck out if the F&BP is not furnished within 2 days:
3. Bahawa Plaintif diperintahkan untuk menyampaikan butir-butir diatas secara bertulis dalam masa dua (2) hari dari tarikh perintah ini;
4. Sekiranya Plaintif gagal memberikan butir-butir seperti yang diperintahkan oleh Makhamah yang Mulia mengikut masa yang ditetapkan diperenggan 3 di atas, suatu perintah bahawa Panyataan Tuntutan Plaintif dibatalkan;
[4] There was no further appeal against the HC Order.
[5] In dismissing encl 84, the Sessions Court decided as follows:
(a) An extension of time was allowed to regularize the late service of the F&BP.
There was a delay of only 3 days [excluding the weekend on 17 September 2022 and 18 September 2022 per O 3 r 2 and 4 of the Rules of Court 2012] in serving the F&BP. Order 2 r 1 and 3 of the Rules of Court 2012 empowered the Sessions Court to exercise its discretion to consider an application for extension of time in the interest of justice even though it was not filed promptly. The Defendants had not objected to the service of the F&BP on 22 September 2022 and even served their Reply to the Counterclaim Defence on 5 October 2022.
(b) The complaint that the F&BP furnished pursuant to the HC Order was incomplete because no 2013 valuation report was furnished was rejected because no particulars of such valuation report was requested or pleaded in this action.
The alleged unfulfilled request for F&BP relates to para 9 of the SOC:
"Atas kegagalan defendan pertama dan defendan kedua tersebut, pihak plaintif dalam menguatkuasakan haknya telah melaksanakan haknya di bawah Perjanjian LACA tersebut untuk menjual Hartanah tersebut melalui lelongan awam pada 26 June 2020 (selepas itu dirujuk sebagai "Lelongan Awam tersebut")."
On 2 September 2021 following a request by letter for details of the public auction, the Plaintiff's former solicitors, Sidek Teoh Dennis & Wong ("STDW"), had already furnished copies of 7 Proclamations of Sale and a valuation report dated 26 August 2020, containing all the particulars requested.
Analysis and Findings
[6] This Court is bound by s 28(1)(c) of the Courts of Judicature Act 1964 to dismiss this Appeal on grounds that the appeal is incompetent (See Azinal Sdn Bhd v. Jannath Gani & Ors And Other Appeals ("Azinal") on the interpretation of the equivalent s 68(1)(f) of the for appeals to the Court of Appeal).
[7] The amendments to the Courts of Judicature Act 1964 to expand the list of non-appealable matters was held in Azinal to have retrospective effect. In this case, enc
