JUDGMENT

The plaintiff [appellant] commenced this action on 13 May 1987 as the registered proprietor of premises and land known as 124 Malacca Street, Penang. The defendant [respondent] is the owner of the neighbouring land and premises known as 126, 126A, 126B along the same road, which the defendant bought in 1976. After purchasing the said land, the defendant demolished the existing one-storey building and constructed a three-storey dwelling house in its place. The plaintiff alleged that as a direct result of the defendant's building construction work the plaintiff's plot of land and dwelling house sustained serious damage and had continued to deteriorate.

Paragraph 6 of the statement of claim says:

Despite the protests and damage caused to the plaintiff's neighbouring property as stated the defendant continued with the construction work until 1979 when the said construction work was concluded.

The plaintiff claims for:

(a) damages for inconvenience and mental anguish;

(b) special damages at RM17,040;

(c) interest;

(d) costs; and

(e) further and other reliefs.

The defendant in his defence, denies that his construction work had caused damage to the plaintiff's property. In para 9 of the defence, the defendant says, 'The defendant pleads that the plaintiff's claim is statute-barred'.

On 25 August 1988, the defendant filed a notice of application to strike out the summons and the statement of claim under O 14 r 21 of the Subordinate Courts Rules 1980 ('SCR 1980') which is in pari materia with O 18 r 19 of the Rules of the High Court 1980 ('RHC 1980').

The learned judge of the sessions court allowed the defendant's application, on the ground that the cause of action was statute-barred.

The learned sessions court judge made a finding of fact which was not disputed in the appeal before me and which I accept. That is, that the construction work was completed in July 1977. However this finding of fact is not really material as, even if we were to take the completion date as 1979 as alleged by the plaintiff, still the action was commenced more than six years later.

Before me, Mr Karpal Singh, learned counsel for the plaintiff raised two issues. The first is whether the action is statute-barred. The second, which is actually connected with the first issue, is whether nuisance was pleaded.

After hearing the arguments on both sides, I reserved my decision for two days. During that period, learned counsel for the plaintiff submitted some authorities as well as raising a new point that there was delay on the part of the defendant in making the application under O 14 r 21 of the SCR 1980.

Mr Karpal Singh drew my attention to two decisions of the High Court in which the learned judges held that a defendant could not apply to strike out a claim under O 18 r 19 of the RHC 1980 on the basis of a good limitation defence. The two authorities are: Yeo Chu Hui v Lim Cheng Jin & Anor [1993] 1 AMR 18 and Tengku Ali ibni Almarhum Sultan Ismail v Kerajaan Negeri Terengganu Darul Iman [1994] 2 MLJ 83 . The judgment in the last-mentioned case was confirmed by the Supreme Court very recently, but we have not had the advantage of the written judgment yet.

On the other hand, I found two decisions of the Federal Court which say otherwise. The first case is Tio Chee Hing & Ors v Government of Sabah [1981] 1 MLJ 207 . In that case, the defendant did not enter appearance or file a defence but applied to strike out the statement of claim on the ground, inter alia, that the claim was statute-barred. The learned trial judge held that the claim was statute-barred and he dismissed the claim. The plaintiffs appealed to the Federal Court. The Federal Court dismissed the appeal and, inter alia, held:

(2) in any event, the appellants' claim was clearly statute-barred and not maintainable against a defence that relied on limitation; …

The other case is Haji Hussin bin Haji Ali & Ors v Datuk Haji Mohamed bin Yaacob & Ors [1983] 2 MLJ 227 . In this case the appellants (p