JUDGMENT

Mahadev Shankar JCA:

This appeal turns upon the proper construction of O. 32 r. 13(2) of the Rules of the High Court 1980. The issue is whether the 14-day period within which an affidavit in reply must be filed and served on the other party should be computed from the date on which the affidavit intended to be replied to was served or 14 days from the date of the service of the sealed copy of the summons-in-chambers in support of which the affidavit was sworn. There are conflicting High Court opinions on this matter.

This writ of summons and statement of claim was filed on 10 December 1995. The claim was for goods sold and delivered by the plaintiff to the first defendant. The second, third and fourth defendants were guarantors. On 26 August 1994 the plaintiff obtained a judgment in default of appearance against the first and the second defendants. The judgment was then extracted and on 9 November 1994 the plaintiff served the default judgment on the first and second defendants.

On 22 December 1994 the first and second defendants filed a summons-inchambers to set aside the default judgment. Together with the summons the first and second defendants filed an affidavit in support which had been affirmed on 21 December 1994.

As usual, it took some time for the first and second defendants to get a sealed copy of the summons-in-chambers from the Registry. The date of hearing of the summons-in-chambers was endorsed therein when the summons was sealed.

On 27 December 1994 the defendants' solicitors served upon the plaintiff's solicitors an unsealed copy of the summons-in-chambers and a file copy of the affidavit in support. On 29 of December 1994 the defendants served a sealed copy of the summons-in-chambers.

Thereafter on 11 January 1995 the plaintiff affirmed an affidavit in reply to the defendants' supporting affidavit and served it the same day upon the defendants' solicitors.

The first return date of the summons-in-chambers was 13 February 1995. On that day the defendants took a preliminary objection to the admissibility of the plaintiff's affidavit in reply. The ground for this preliminary objection was that more than 14 days had elapsed from the date of the unsealed copy of the summons-in-chambers and the affidavit in support (i.e. 27 December 1994) to the date on which the plaintiff's affidavit in reply was filed and served i.e. 11 January 1995. It is to be noted that upon this calculation the 14-day period would have expired on 10 January 1995. Accordingly the delay, if there was one, was only for one day.

On the other hand, if the period had been computed from the date of the service of the sealed copy of the summons-in-chambers i.e. 29 December 1994 then the affidavit in reply would have been served within time.

The Registrar directed the plaintiff to file a further affidavit to explain why the delay had occurred and accordingly the plaintiff's solicitors filed a further affidavit on 4 May 1995 in which it was explained that the plaintiff had misplaced a document upon which they wished to rely, that this was found on 10 January 1995 and therefore the affidavit in reply had been affirmed and filed on 11 January 1995.

The Registrar accepted this explanation and on 16 May 1995 overruled the preliminary objection.

It is not clear whether the Deputy Registrar then proceeded to deal with the application on the merits. What we know is that the defendants immediately appealed to the Judge against the dismissal of the preliminary objection. The Judge dismissed the appeal on 10 July 1995 with costs. Against this dismissal the first and second defendants have appealed to this Court.

The Judge in the Court below held, following the decision in Pua Lai Ong v. Perbadanan Nasional Insurans Sdn. Bhd. [1996] 2 CLJ 283 ; [1995] 2 CLJ 283 that time only began to run from the date of the sealed copy of the summons-in-chambers. The rationale for that decision was based on the effect of O. 32 r. 2(l) of the Rules of the High