Shaik Daud Ismail JCA:

[1] This is an appeal from the decision of Justice Ong See Seng who had 24 June 1994 ruled that a default judgment entered on 2 March 1994 against the appellant is a regular judgment and he accordingly dismissed an application by the appellant to have it set aside.

[2] The facts of the case are that on 5 August 1993 the respondent took out an originating summons claiming vacant possession (purportedly under O 89 Rules of the High 1980), of premises Nos 88, 90 and 92 Jalan CM Yusof, Ipoh, Perak. He also applied for other relief including a permanent injunction restraining the appellant from trespassing onto the property. On 14 August 1993 the appellant entered a conditional appearance and on 25 August 1993 took out a summons to strike out the originating summons, on the grounds, inter alia, that he was a tenant holding over.

[3] He contends that the respondent in his affidavit also admitted that the appellant was a tenant holding over and therefore the summary provision under O 89 is not applicable. The respondent is of the view that the originating summons is not under O 89 since it also claims for other reliefs apart from vacant possession. He contends that in fact it is an application for vacant possession under O 28. After hearing submissions, the learned Judge directed that the matter be proceeded with as if commenced by a writ and ordered the respondent to deliver a statement of claim within 14 days. On record there was, however, no corresponding order requiring the appellant to plead. The appellant not being satisfied with the decision appealed to the then Supreme Court and the appeal has since been heard and dismissed by the Federal Court on 11 October 1994.

[4] Accordingly the respondent delivered his pleading on 14 February 1994. The appellant, in correspondence, requested the respondent for an extension of time to deliver his defence, pending the outcome of his appeal. The respondent refused the request and informed the appellant that judgment in default of defence would be entered. On 10 March 1994, the appellant filed a summons to stay all proceedings including filing of defence and that summons was scheduled for hearing on 13 May 1994 but before it was heard the respondent on 21 March 1994 entered judgment in default. The appellant then took out another summons to set aside the default judgment. The application was heard on 24 June 1994 and dismissed but the learned Judge, however, granted an interim stay. Hence this appeal.

[5] Unfortunately the learned Judge did not give a written judgment but gleaning from the notes of evidence, his ruling states that since the judgment is a regular judgment and no defence on merits has been disclosed in the affidavit he therefore dismissed the application.

[6] At the outset of this matter both in the High Court and at the appeal there is a dispute as to whether the originating summons was one under O 89. The appellant contends that it is an application under O 89 while the respondent contends that it is not. I think in order to determine what an application is all about the Court should look at the substance of the application.

[7] On my perusal of the substance of this originating summons it seems clear to me that the originating summons, although it did not mention in so many words, is one under O 89. Otherwise there would be no reason for it to be filed as an originating summons. If, as is contended by learned Counsel for the respondent, that it was an action for recovery of vacant possession, then I see no earthly reason why he did not issue a writ to begin with. I am equally sure that the learned Judge was also of the same view that it was an application under O 89. Therefore, he alluded to the provisions of O 28 r 8(1). This rule empowers the Court to convert an originating summons as if it was begun by a writ, without having to direct the applicant to file a fresh writ. The learned Judge's ruling has in fact converted it into a writ and he had a