JUDGMENT

OLEH YANG ARIF HAKIM TUAN STEVE L K SHIM

(LAMPIRAN 108)

By a summons-in-charnbers dated 21.1.1998, the defendant in this suit has applied for leave to file a further affidavit annexing certain Notes of Evide:ic3. It is supported by the affidavit affirmed by L Meyyappan, the chief executive officer of the defendant. The appplication is however opposed by the plaintiff who has filed an affidavit in reply affirmed by Santhanam Christie a/l C I Lourdes, a director of the plaintiff.

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To better appreciate the application, it is., I think, necessary to state briefly the factual background leading to it. This suit was commenced on 8.5.1995 and was initially tried before R K Nathan, J. In the course of trial, evidence was given by 3 of the plaintiff's witnesses including its main witness, one Santhanam Christie. Before the next trial date, R K Nathan, J was transferred to the Civil Division of the High Court, but prior to the said transfer, the learned Judge apparently agreed, with the joint request of the parties concerned, that the suit should be tried de novo presumably by another Judge. Let me say here that I do not read that to constitute a direction of any sort. It would be strange if it were, But if it could for any reason be regarded as one, it could' not possibly, in my respectful view, have meant to prohibit or restrain, in any way, the discretion of the replacement Judge as to whether or not he should, upon hearing the views of counsels for the parties concerned and upon considering all other relevant circumstances, decide to hear the case de novo In any event, following the said transfer of the learned Judge, the plaintiff filed an application to amend the Statement of Claim. This application was opposed by the defendant and. one of the main grounds [Page 3] was that the said application was not made bona fide. It was apparently on the basis of this contention that the defendant's solicitors had, on 21.11.1997, applied to the Court for the Notes of Evidence recorded by R K Nathan, J and it was only on 22.12.1997 that a copy of the said Notes of Evidence was received by the defendant's solicitors, but by then, the application of the plaintiff to amend the Statement of Claim was heard and allowed by the learned SAR. This was on 2.12.1997. On 4.12.1997 the defendant filed an appeal against that decision. It is in connection with that appeal that the defendant has filed the instant application for leave to file a further affidavit annexing the Notes of Evidence. The application is obviously filed pursuant to which stipulates:

"At the hearing of the appeal fresh evidence shall not be admitted unless the Judge is satisfied that -

(a) at the hearing before the Registrar the new evidence was not available to the party seeking to use it, or that reasonable diligence would not have made it so available; and

(b) the fresh evidence, if true, would have had or would have been likely to have had a determining influence upon the decision of the Registrar."

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From the sequence of events which I have highlighted earlier, it seems clear that at the plaintiff's application to amend the Statement of Claim was heard by the learned SAR, the Notes of Evidence sought for by the defendant were not available. They were only received by the defendant subsequently. Therefore the first limp of O.56 r 1(3A) has, in my view, been complied with.

In considering the second limp, it is of course necessary to look at the Notes of Evidence and examine them in relation to the proposed amendments and the Statement of Claim, From the Notes, it is apparent that the capacity in which the plaintiff initially lodged its claim had been challenged by the defendant's counsel in cross-examination and to such an extent that it could be said to have some adverse impact upon it, that challenge, which is not entirely untenable, would, if accepted, have had or would have been likely to have had a determining influence upon the decision of the learned SAR at the