JUDGMENT

Edgar Joseph Jr. SCJ:

Broadly stated, the issue which arises for decision in this appeal is: what is the ambit of the Court's power, under O. 8, r. 6 (2) (b) of the Subordinate Courts Rules, 1980, [equivalent to and in pari materia with O. 15, r. 6 (2) (b) of the Rules of the High Court 1980], upon the application of the defendant, in a running down case, to compel the plaintiff to add, a second defendant, against whom the plaintiff does not wish to proceed ?

In this judgment, all references to the provisions of the Rules of the High Court ("RHC") must be taken as also referring, where the context so requires, to the equivalent provisions of the Subordinate Courts Rules ("SCR").

To put matters in their correct perspective, it is necessary to reproduce the provisions of O. 8, r. 6 (2) of the SCR; it says this:

6(2) At any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application - (a) order any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party; (b) order any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon be added as a party;

but no person shall be added as a plaintiff without his consent signified in writing or in such other manner as may be authorised.

It would be more convenient if we referred to the appellant and the respondent in the present appeal, as the defendant and the plaintiff, respectively.

The circumstances, out of which the above question of law, arose were these:

Some six years ago, at the junction of Jalan Telok Wanjah/Jalan Langgar, Alor Setar, in the State of Kedah, a collision had occurred involving two motor cycles; namely, motor cycle KL 7102 on which the plaintiff was a pillion passenger, the rider being one Lim Ah Chooi as servant or agent of one Lim Yu Hua, and motor cycle KT 2584 ridden by the defendant.

Before the hearing, Counsel for the defendant, had applied by summons supported by affidavit affirmed by a solicitor of the firm of instructing solicitors, that Lim Ah Chooi, the rider of motor cycle KL 7102 and his alleged master or principal Lim Yu Hua, be added as second and third defendants, respectively, on the ground that the collision was caused or substantially contributed to by the negligence of Lim Ah Chooi. Counsel for the plaintiff had no objection to this prayer, but he did object to the very next prayer, namely, prayer 3, which reads:

that the plaintiff do make the necessary amendments to the statement of claim to plead negligence against the said Lim Ah Chooi, the intended second defendant, as the servant or agent of Lim Yu Hua, the intended third defendant.

In support of prayer 3 of his application, Counsel for the defendant quoted the following passage in Atkins Court Forms (1987 Edn.) Vol. 30, p. 11 under the heading, "Joinder of Defendants" which reads:

As a general rule a person cannot be added as a defendant against the wishes of the plaintiff, but the Court has a wide discretion and e.g. may, on the application of the defendant, add persons alleged to be joint contractors, without the consent of the plaintiff... (Emphasis supplied).

In support, and by way of illustration, the case of Norbury Natzio & Co. Ltd. v. Griffiths [1981] 2 KB 369, was cited by the learned Editors, and Form 13, being the actual order made in that case, is reproduced at p. 48.

The learned Sessions Judge pointed out that in that case, a plaintiff had sued a defendant for a debt which the defendant had admitted was due from the executors of the estate of a deceased person, of whom he was one and X another. The defendant had applied for the plaintiff to add X as a co-defendant on the ground that they were joint contractors so that he co