Chong Siew Fai J:

There are three applications by way of summons-in-chambers before me:

1. the plaintiff's application dated 8 June 1989 to strike out the 5th defendant's defence and for judgment to be entered in the sum with interest and costs claimed in the action;

2. the 5th defendant's application dated 21 March 1990 for dismissal of the plaintiff's action for want of prosecution, or alternatively, as being vexatious or an abuse of the process of the Court, and costs; and

3. the plaintiff's application dated 4 September 1990 for leave to discontinue the action against the 5th defendant and for costs of the application.

Background of Case

The plaintiff instituted this action for recovery of various sums totalling RM1,334,171.14, and interest at diverse rates on various sums against the 1st defendant as principal and against the other six defendants as guarantors of whom the 5th defendant was one. There is also a claim for "costs on a solicitors clients basis".

The 5th defendant delivered a defence dated 20 April 1989.

On 4 May 1989 judgment in default of appearance was entered against the 1st and the 7th defendants. The default judgment also included "costs on a solicitors clients basis to be taxed".

The plaintiff then took out the application dated 8 June 1989 mentioned above for striking out the 5th defendant's defence and for entry of final judgment and costs.

By 15 August 1989 the judgment debt and the costs as awarded were fully settled by the other defendants. And on 14 October 1989 this action was discontinued as against all the other defendants except the 5th defendant.

On 22 March 1990 the 5th defendant filed application 2 above for dismissal of the action for want of prosecution or as being vexatious or an abuse of the process of the Court and costs.

On 4 September 1990 the plaintiff filed application 3 above for leave to discontinue this action and for costs of the application.

Plaintiff's summons dated 8 June 1989 for striking out the defence and for judgment.

As the claim of the plaintiff had not been settled or liquidated by 8 June 1989, the plaintiff was, at least procedurally, justified in taking out on that date the application against the 5th defendant for striking out the defence and for judgment.

For the 5th defendant it was submitted that there had been delay in effecting service of the summons on the 5th defendant through his advocate which was served on 13 March 1990. In this regard, the explanation of the plaintiff was that the summons was first brought up for hearing on 13 September 1989. Service had not by then been effected for the reason that negotiation for settlement between the plaintiff and some other defendants was going on. On 13 September 1989 the summons was adjourned to a date to be fixed. And the next hearing date fixed by the Court registry (with which the fixing of dates lay) was 14 June 1990. I consider the explanation reasonable. It is also, to my understanding, the usual practice to effect service after a date for hearing has been fixed, that is, in the context of the present case, to effect service on or after 9 March 1990, the date of the notice of rescheduled hearing (see paras. 3 and 4 of the "notes of submission" dated 9 May 1991 of the 5th defendant).

Counsel for the 5th defendant cited Lum See On v. Chan Kit Yong [1956] 22 MLJ 40 as a reason in support of his contention on the delay in hearing the summons dated 8 June 1989 heard on 14 June 1990, that is, more than one year after its issue. In Lum See On's case, supra, (a tenancy case) the defendant, who obtained letters of administration to a deceased tenant's estate prior to the commencement of the action, claimed protection of the Control of Rent Ordinance. By the date of the trial of the action, the grant of the letters of administration to the defendant had been revoked. It was held that the relevant date for determining the rights of the parties was the date of the hearing and that since on that date the defend