JUDGMENT

Edgar Joseph Jr. J:

At the conclusion of the arguments yesterday, I dismissed this Appeal and would now state my reasons for having done so.

The appellant (the defendant in the Court below) had applied unsuccessfully to set aside a default judgment, giving possession of certain premises known as Godown No. 121, Weld Quay Foreshore, Penang ("the premises") occupied by it, to the respondent (the plaintiff in the Court below), both parties being incorporated companies.

The record provided shows that on the date fixed for hearing, although the suit had been thrice stood down, to enable the appellant and/or its Counsel to appear, neither did so. In the event, the respondent's Counsel asked for judgment in default to be entered in favour of his client and an order was made accordingly. In doing so, the learned President was clearly acting within the ambit of her powers since both the appellant and its Counsel were absent. (See Shaharudin bin Abdul Rahman v. Satisah Ismail Sdn. Bhd. [1982] CLJ (Rep) 747). This was on 15 September, 1982.

Six days later, the appellant applied to set aside the default judgment under the provisions of O. 28 r. 8(1) of the Subordinate Courts Rules, 1980, which reads:

Any judgment or order obtained where one party does not appear at the hearing may be set aside by the Court, on the application of that party, on such terms as it thinks just.

However, at the conclusion of the arguments, and after having reserved her decision, the learned President dismissed the application with costs. It is from this decision that the appeal before me now lies.

In her grounds of decision, the learned President had dealt with the explanation for absence offered by Counsel of the appellant with great care and concluded as follows:-

In the instant case, it was not apparent from a reading of Mr. Wong's affidavit why he was absent. He stated that he was indisposed and did not elaborate further. It was only on enquiry by the Court, that he stated that he did not attend Court because he had friends from Thailand visiting him. With respect, that is not a reason acceptable to the Court, and it would be setting a dangerous precedent to accept it. There must be a good many people who would prefer to be elsewhere when duty requires them to be in Court. In any case no application for postponement was made even though Counsel was present for a few moments. Had it been inconvenient for Mr. Wong to appear in the afternoon, he should have appeared punctually in the morning and asked for his case to be heard first. The Court would have been more willing to accommodate him.

The defendants had been given every opportunity of being heard, to the extent that the Court stood down the case no less than three times to enable them to appear. This was not a case where either Counsel or the defendants had been absent due to some mistakes or oversight. They were not heard because they chose not to be heard on the day appointed for hearing and they did so at their own peril, since approval was neither sought nor given by the Court.

I have no quarrel with the learned President, both as regards her reasoning and her conclusion regarding this part of the case.

In deciding the application before her, the learned President took into consideration, on the one hand, the well settled principle referred to by Sharma J. in Pakrisamy v. Janagi[1970]

That every opportunity should be given to litigants to put forward their case.

and on the other hand, that referred to by Ali J. (as he then was) in Safety Insurance Co. Ltd. v. Hua Seng Electric Co.[1968]

That it should not be taken for granted that because a party has a good defence to an action, he can deliberately ignore the rule governing appearance.

In referring with approval to what Ali J. said, the learned President recognised that his Lordship was deciding a case governed by O. 19 r. 3(1) of the old Subordinate Courts Rules 1950, which required "good reason for absence to be shown" before a default ju