JUDGMENT

KC Vohrah J:

Five Sessions Court civil actions involving the same defendant and ten different plaintiffs were consolidated. On 20 January 1998 the consolidated actions came up for hearing. Counsel for all the plaintiffs was present as was counsel for the defendant. I do not have the notes of proceedings of the case but it appears from the orders made under the separate civil actions that the cases were dismissed ("dibuang") as the plaintiffs and their witnesses were absent. An application was filed by seven plaintiffs to set aside these orders before the orders were perfected but the Sessions Judge dismissed the application on the basis of a preliminary objection advanced by counsel for the defendant that the plaintiffs did not have locus standi since the plaintiffs should have appealed the decision to the High Court.

It would appear that the Sessions Judge dismissed the consolidated actions under O. 28 r. 7(a) or the Subordinate Court Rules 1980.

O. 28 SCR relates to proceedings heard in open court.

O. 28 provides, inter alia, for situations when an action is called on for hearing:

(a) where neither party appears;

(b) where the defendant does not appear; and

(c) where the plaintiff does not appear.

As for the situation where neither party appears r. 5 is applicable - the action may be struck out. But the rule itself provides for the restoration of the action.

It reads:

5(1) If, when an action is called on for hearing, neither party appears, the action may be struck out, without prejudice, however, to the restoration thereof, on the direction of the Judge.

(2) An application under this rule must be made within 14 days after the hearing.

(3) Where an action is restored, notice of restoration in Form 73 must be given by the Registrar to the parties to the action.

The neutral words "struck out" are used in r. 5 since they cover the situation when both parties do not appear as no judgment or dismissal on a plaintiff's claim or a defendant's counterclaim arises to be decided.

As for the situation where the defendant does not appear, r. 6 provides for judgment for the plaintiff's claim and dismissal of the defendant's counterclaim if there is one. Rule 6 does not itself provide for the procedure for the judgment or the order of dismissal of the counterclaim to be set aside.

Rule 6 reads:

6(1) If, when an action, other than actions to which Orders 43, and 45 apply, is called on for hearing, the plaintiff appears but the defendant does not appear, the Court may:

(a) if the defendant has no counterclaim, on proof of service give judgment for the plaintiff on his claim; and

(b) if the defendant has a counterclaim, dismiss the counterclaim with costs; and make any other order as it thinks just.

Rule 7 provides for the situation where the plaintiff does not appear when the action is called. It allows for the court to dismiss the action if the defendant has no counterclaim and if he has, to give judgment for the defendant. Rule 7 itself does not provide for the procedure for the judgment on the counterclaim or order of dismissal of the plaintiff's action to be set aside.

Rule 7 reads:

7. If, when an action is called on for hearing the defendant appears but the plaintiff does not appear the Court may:

(a) if the defendant has no counterclaim, dismiss the action with costs;

(b) if the defendant has a counterclaim, give judgment for the defendant on his counterclaim; and

made any other order as it thinks fit.

As stated earlier neither r. 6 itself nor r. 7 itself provides for the procedure for setting aside the judgment or order obtained under the rule. As a drafting device r. 8 takes care of the procedure where the judgment or order given in the absence of a party (whether plaintiff or defendant) may be set aside. It reads as follows:

8(1) 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 ju