JUDGMENT

Syed Ahmad Helmy JC:

The question for determination in this application is whether the mode of commencement by way of originating motion by the applicant for the production of the application form relating to the third party charge is the proper mode.

The question arose from the preliminary objection raised by the respondent who contended that the commencement of the action by way of originating motion is wrong owing to the non-fulfillment and non-compliance of the requisites as prescribed by which Rules regulates the various modes of commencement of civil proceedings in the High Court.

The respondent's objection is based on three main grounds:

1. Proceedings by way of originating motion is only permissible if authorised by rules of the High Court or any written law.

2. There must be explicit intitulement of the relevant statute or rules either in the heading or body of the originating process and the grounds of the application must be stated in the originating motion.

3. There must be a cause of action.

The applicant in resisting the objection contended that the Court has a discretion to treat the non-compliance of O. 5 r. 5 as an irregularity and in any event the respondent has waived their right to object by reason of their unconditional appearance filed on 29 March 2000.

I shall now address the issue by analysing the various applicable provisions of the Rules of the High Court 1980.

(RHC) reads as follows:

Subject to the provisions of any written law and of these rules, civil proceedings in the High Court may be begun by writ, originating summons, originating motion or petition.

Order 5 r. 5 of the RHC states as follows:

Proceedings may be begun by originating motion or petition if, but only if, by these rules or by or under any written law the proceedings in question are required or authorised to be so begun.

From a plain reading of the aforesaid rules it is evident that r. 1 is a restatement of the four modes available and recognisable for commencement of civil proceedings in the High Court while r. 5 specifically regulates proceedings relating to originating motion and petition in that it is only available if prescribed by the RHC or any written law.

The specific mention of the initiation of civil proceedings by way of originating motion in a specific rule to wit O. 5 r. 5 clearly reflects that it is a specie of civil proceeding which is different from writ or originating summons. The difference is further pronounced by the twin requirement of authorisation by the Rules or any written law as specified therein.

His Lordship Abdul Kadir Sulaiman J (as he then was) had occasion to construe the provision of O. 5 r. 5 of the RHC in ; [1994] 2 MLJ 448; [1994] 3 CLJ 466 which was an application by way of originating motion to set aside an order for sale made under the provisions of the Sarawak Land Code and at para e at p. 469 his Lordship stated:

Thus, from the said order, it is clear that originating motion is only to be used when required or authorised by the RHC or by or under any written law, which in this case is the Code. Perusing the RHC and the Code, I cannot find any specific rule or section which requires or authorises the Plaintiff to begin this nature of proceedings as contained in this application by originating motion. In fact, the Code does not at all prescribe the procedure for commencing an action of this nature.

and at para h of p. 469 he concluded:

As mentioned earlier, originating motion not being the required or authorised mode, and the nature of the application is not one to be made by a petition, so what is left is the originating summons or a writ. Since the Plaintiff has chosen the originating summon procedure to commence the action, I have no alternative but to agree with the submission of the learned counsel for the defendant and I accordingly allow the preliminary objection raised and hold that the Plaintiff has adopted the wrong procedure to bring his grievances before the Court.

In the application at hand