JUDGMENT

Hashim Yeop A Sani J:

This is an application way of Notice of Motion by the defendants seeking for an order that the Specially Indorsed Writ of Summons dated 23 August 1974 be set aside for being in noncompliance of O. 48A R 1 of the Rules of the Supreme Court, 1957. Plaintiffs are a firm of contractors having their place of business in Tawau, Sabah, and the defendants are an insurance company having their registered office in Kuala Lumpur.

On 23 August 1974 plaintiffs, suing as a firm, caused to be issued a Specially Indorsed Writ against the defendants claiming inter-alia a sum of $26,000 and consequential reliefs. The writ was served on the defendants and the defendants entered conditional appearance and gave notice of same to the plaintiffs' solicitors.

In this Motion the sole preliminary issue is whether on the construction of O. 48A R 1 of the Rules of the Supreme Court, 1957 plaintiffs as a firm have capacity to sue in the name of the firm. For ease of reference O. 48A R 1 is reproduced below:

1. Any two or more persons claiming or being liable as co-partners and carrying on business within the jurisdiction may sue or be sued in the name of the respective firms, if any, of which such persons were co-partners at the time of the accruing of the cause of action; and any party to an action may in such case apply by summons to a Judge for a statement of the names and addresses of the persons who were, at the time of the accruing of the cause of action, co-partners in any such firm to be furnished in such manner, and verified on oath or otherwise as the Judge may direct." (The italics are mine)

It is obvious, as the marginal note to the order says, that O. 48A R 1 deals with actions by and against a firm within jurisdiction. This order enables persons carrying on business in partnership to sue or be sued in the firm's name. But this is a rule made for convenience, and an action by and against a firm notwithstanding this rule remains an action by or against the individual members of the firm - per Farwell J in Noble Lowndes & Partners (a Firm) v. Hadfields Ltd. [1939] Ch. 569, 572 at page 572. Carrying on business within jurisdiction is explained in Mallal's Supreme Court Practice at p. 649 as follows:

Carrying on Business within the Jurisdiction. - There is a well-known rule that if a firm has no place of business in this country held in the name of the firm then they do not carry on business within the jurisdiction even though they employ an agent locally. Chung Thye Phin V. Lewis Lazarus & Sons. As 'a firm' within this rule is a firm carrying on business within the jurisdiction, the issue of a writ in the name of a foreign firm will be refused unless the names of all the partners are given. It makes no difference whether the partners are within or outside the jurisdiction. The question is 'does the firm there carry on business?' If the firm has no place of business within the jurisdiction they do not carry on business here, even though the partners come to the Federation or Singapore regularly and employ an agent to purchase goods to, be sent to the firm abroad. Nor does the employment of the agent who procures orders on commission, but has no power to accept or reject such orders, constitute 'carrying on business in the Federation or Singapore', although the name of the firm is on the door of his office. See Grant v. Anderson [1892] 1 QB 108, CA; Worcester City and County Banking Co. v. Firbank Pauling Co. [1894] 1 QB 784, CA.

It is also an established rule that the onus is on the party to show that the firm is carrying on business within jurisdiction. In this case the Statement of Claim itself admits that the plaintiffs are carrying on business in Tawau, Sabah. Chung Thye Phin V. Lewis Lazarus & Sons is a straightforward case of jurisdiction in the territorial sense because at the time of accrual of cause of action in that case the foreign firm had no place of business within the Colony of Singapore. The re