Tan Chiaw Thong J:

We allowed the appeal and stated that we would give our reasons later. We do so now.

This is an appeal against the refusal by the lower Court of an application made by the appellant (defendant in the lower Court) for an order striking out the particulars served by the respondent upon the appellant on 24 November 1979, on the ground that such particulars were served in breach of an order of the lower Court dated 9 November 1979, after the time limit imposed by the said order had expired.

The action in the lower Court concerns a claim brought by the respondent against the appellant for damages and an injunction in relation to an alleged libel. The relevant parts of paras. 6 and 7 of the statement of claim reads:

6. And on or about 18 April 1971 the defendant falsely, maliciously and recklessly wrote and published and/or caused to be written and published of and concerning the plaintiff and of and concerning him in the way of his said office as chairman of the Sarawak National Party a news message alleging, inter alia, that the chairman of the Sarawak National Party Dato Stephen Kalong Ningkan told the High Court at Sibu on 18 April 1972 that his party had received a donation of RM145,000 from Kong Thai Sawmill (Miri) Sdn. Bhd. ...

7. The defendant wrote and published the said news message to various persons in Malaysia and Singapore and same was printed and published in several newspapers circulating in Malaysia and Singapore.

By a summons in chambers dated 27 March 1979, the appellant applied for an order, inter alia, that the plaintiff do serve on the defendant within fourteen (14) days particulars in writing relating to paragraph 7 of the statement of claim and identifying the person or persons to whom the respondent alleged the appellant had published the news message mentioned in para. 6 of the statement of claim; and naming and identifying the several newspapers who the respondent alleged printed and published the said news message. The appellant also asked that in default of compliance with the order sought para. 7 of the statement of claim be struck out without further order.

The appellant's summons in chambers was heard on 9 November 1979, when an order was made by the lower Court in terms, inter alia, of the application as set out above. The order was approved and extracted on 23 November, 1979 and was, on the same day, served at 3.05 p.m. upon the respondent's advocates, who served the relevant particulars upon the appellant's advocates at 9.50 a.m. the following day 24 November 1979. Mr. John Ko, learned counsel for the appellant, then affirmed an affidavit on 27 November 1979, in support of a summons in chambers dated 24 December 1979, applying for the striking out of the particulars so served on the ground mentioned at the beginning of this judgment.

The appellant's summons in chambers was heard by the learned Judge on 25 January 1980. His decision, made on the same day, was as follows: "Application refused. See O. 64 r. 12. Cost(s) to the respondent." The learned Judge subsequently certified that he required no further argument in open Court.

In substance, the appeal is confined to three grounds, as set out in paras. 2, 3 and 5 of the memorandum of appeal. They read as follows:

2. The learned Judge had wrongly misconstrued the effect of O. 64 r. 12 of the Rules of the High Court in Borneo (1963) in finding that the plaintiff had served the particulars within the fourteen days as stipulated by the order of the Court dated 9 November 1979 when in fact the particulars should have been served on 23 November 1979 being the last day for effecting service under the aforesaid order.

3. The learned Judge had erred in not striking out the plaintiff's particulars because the plaintiff had served on 24 November 1979 particulars of para. 7 of the statement of claim which is no longer on record as it had been struck out without further order by para. 2 of the said order dated 9 November 1979 after 23