JUDGMENT

1. This is an application by the plaintiff dated 12.5.1997 (enclosure 33) to set aside the service of the 1st defendant’s Summons-In-Chambers dated 3.4.1997 (enclosure 29) and the Affidavit In Support affirmed by Ee Poh Teck on the same date.

2. In this suit, the plaintiff is claiming that fraud and/or forgery have been perpetrated against him which lead to the execution of Memorandum of Charge Instrument No. L8060/1992 in respect of that parcel of land described as Lot 8, Block 83, Kuching Central Land. The execution of the said memorandum was made in favour of the 1st defendant. Hence, the plaintiff is seeking to declare the execution of the said memorandum as void and of no legal effect and that the 1st defendant do execute a Memorandum of Discharge of Charge concerning the same. In addition, he is also requesting for an order to rectify the records at the Kuching Land Registry by deleting the said memorandum together with damages and losses incurred as a result.

3. The 1st defendant after having filed and served the Statement of Defence on the plaintiff’s counsels, wrote to them vide letter dated 17.2.1997 requesting for the particulars of the allegations as contained in the Statement of Claim, presumably to comply with Order 18 rule 12(6) of the Rules of the High Court, 1980 which provides that:-

“(6) Where the applicant for an order under this rule did not apply by letter for the particulars he requires, the Court may refuse to make the order unless of opinion that there were sufficient reasons for an application by letter not having been made.“

4. As there was no response forthcoming from the plaintiff’s counsels, the 1st defendant then took out the Summons In Chambers dated 3.4.1997 requesting for an order from the court that the plaintiff supplies the particulars as requested therein. It is this Summons In Chambers which service the plaintiff is applying to set aside together with the Affidavit In Support.

5. In his submission, learned counsel for the plaintiff focused only on the issues of non-compliance with Order 32 rule 13(2) of the Rules of the High Court and the failure to apply for an extension of time, eventhough in the plaintiff’s Summons In Chambers dated 12.5.1997, there are altogether 4 grounds to support the application as follows:-

i)there is non-compliance with Order 32 rule 13(2) of the Rules of the High Court;

ii)there has been no application for extension of time for service of the Affidavit In Support of Ee Poh Teck before service of the same on the plaintiff’s advocates on the 28th April, 1997;

iii)there is an abuse of the process of the Court; and

iv)the 1st Defendant’s application is frivolous, vexatious and of no basis.

6. It is not in dispute that the Summons In Chambers and the Affidavit In Support both dated 3.4.1997 were also filed on that day. According to the 1st defendant, both the said documents could only be extracted from the High Court Registry on 16.4.1997. Suffice to say that on the 16.4.1997 or the day after, it was still within the 14 days period as stipulated in Order 32 rule 13(2) for the 1st defendant to serve the Summons In Chambers and the Affidavit In Support on the plaintiff. However this was not done until the 22.4.1997 when the 1st defendant attempted to serve the said documents on the plaintiff’s counsels but was unsuccessful. It was only on the 28.4.1997, when the 1st defendant managed to effect service of the same on the plaintiff’s counsels.

7. The provisions of Order 32 rule 13(2) read as follows:-

“(2) Save as otherwise provided in these rules -

(a) an affidavit intended to be used in support of an application must be filed and served on the other party within 14 days from the date of the filing of the application; and

(b) a party wishing to reply an affidavit served on him must file his affidavit and serve it on the other party within 14 days from the date on which the affidavit he intends to reply was served on him.“

8. Coming back to the 1st ground as to the non-complia