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Searching Case Laws & Precedent on Legal Query.....!
Analysing the retrieved Case Laws
Scanned Judgements…!
Order of Hearing Applications: Generally, there is no strict requirement that an application for striking out must be heard before an application for consolidation. Courts exercise discretion based on the circumstances of each case. For instance, courts may decide on consolidation first if it is appropriate to avoid inconsistent judgments or to promote judicial efficiency ["LUA WEI HUN vs AIA BHD & OTHER CASES - High Court"], ["DESLEY TNG ZE HOW vs AIA BHD & ANOR - High Court"].
Court's Discretion and Principles: The court's inherent jurisdiction allows it to determine the sequence of hearing applications. It considers factors such as whether the applications are interdependent, whether consolidation would prevent conflicting judgments, and the stage of proceedings. The courts emphasize caution and fairness, ensuring that no party is unfairly prejudiced ["LUA WEI HUN vs AIA BHD & OTHER CASES - High Court"], ["DESLEY TNG ZE HOW vs AIA BHD & ANOR - High Court"].
No Mandatory Sequence: Several cases highlight that there is no legal mandate that a striking out application must precede a consolidation application. The court may hear the applications in any order deemed fit, especially if consolidation can streamline proceedings or avoid conflicting judgments ["LUA WEI HUN vs AIA BHD & OTHER CASES - High Court"], ["DESLEY TNG ZE HOW vs AIA BHD & ANOR - High Court"].
Factors Influencing the Sequence:
Whether the applications are dependent or independent ["LUA WEI HUN vs AIA BHD & OTHER CASES - High Court"].
Impact of the Application Type: The application for striking out is typically aimed at dismissing weak or unsustainable claims early, whereas consolidation relates to procedural efficiency. The courts recognize these as distinct procedural steps, with no requirement that one must be heard before the other ["LUA WEI HUN vs AIA BHD & OTHER CASES - High Court"], ["DESLEY TNG ZE HOW vs AIA BHD & ANOR - High Court"].
Based on the provided sources, an application for striking out does not have to be heard before an application for consolidation. The courts have the discretion to determine the order based on the specifics of each case, aiming to promote justice, prevent conflicting judgments, and improve procedural efficiency. The key considerations include the stage of proceedings, the interdependence of issues, and whether consolidation would serve the interests of justice. Therefore, there is no procedural rule mandating that a striking out application must precede a consolidation application.
References:
In the fast-paced world of litigation, procedural steps like striking out pleadings and consolidating suits can significantly impact case timelines and outcomes. But what happens when both applications are filed? A common question arises: whether an application for striking out must be heard before an application for consolidation? This issue touches on judicial discretion, efficiency, and the interests of justice, particularly under Malaysian Rules of Court 2012.
This post breaks down the legal position, drawing from key cases and principles. Note that this is general information based on available precedents and should not be taken as specific legal advice—consult a qualified lawyer for your situation.
Generally, an application for striking out is not required to be heard before an application for consolidation. These are distinct procedural tools, and courts exercise discretion on the hearing order based on circumstances and justice. TAN SWEE YOU vs SAHIRON MOHD YUNUS & ANOR (ENCL 1 & 9) - 2021 MarsdenLR 24
No rule mandates striking out first. Courts prioritize procedural flexibility to serve justice. LIN WOON FUI vs DATO SERI THAI KIM SIM - 2025 MarsdenLR 1949
Courts routinely handle these applications independently. In one case, the plaintiff argued defendants should file separate applications like stay or consolidation instead of preliminary objections (potentially including strike-out). The court observed no binding sequence, assessing each on merits. TAN SWEE YOU vs SAHIRON MOHD YUNUS & ANOR (ENCL 1 & 9) - 2021 MarsdenLR 24
Another ruling emphasized: the primary objective is justice and efficiency, allowing flexible sequencing. LIN WOON FUI vs DATO SERI THAI KIM SIM - 2025 MarsdenLR 1949
Consolidation decisions often stand alone, even amid strike-out bids. For instance, courts weigh risks of inconsistent judgments: one of the tests in deciding whether consolidation should be ordered is to determine whether two inconsistent judgments will come into existence if it is not ordered. AMD CONSTRUCTION SDN BHD vs TANAH LAMAN SDN BHD & ANORCJ POLYMERS SDN BHD vs KERK HAN MENG & ANOR
In a Sessions Court context, if a striking out succeeds, it might affect third-party involvement in consolidation, but applications proceed separately: In the event the interlocutory application ie the striking out application... is allowed... then the Third Party proceedings is no longer exist and this consolidation application no longer involved the third party. BORNEO MUSIC CONSERVATORY SDN BHD vs MALAYSIAN RED CRESENT SOCIETY (SABAH BRANCH)
Precedents reinforce flexibility. Striking out is reserved for plain and obvious unsustainable claims, favoring trial where possible: A claim should not be struck out unless it is plainly unsustainable; the balance of justice favors allowing the plaintiff to prove his case at trial. YEW SEE TAK vs CG COMPUTERS SDN BHD & ORS
Cross-actions complicate consolidation: Consolidation of cross-actions is prohibited to prevent inconsistent judgments. Courts dismissed consolidation where roles reverse, prioritizing economy over complexity. BORNEO MUSIC CONSERVATORY SDN BHD vs MALAYSIAN RED CRESENT SOCIETY (SABAH BRANCH)
In insolvency-related suits, striking out was denied as claims disclosed reasonable causes like unjust enrichment, showing independent evaluation. MALACHEMENAIDU & ANOR vs HAJJAH SARAH & ORS (ENCL 116)
Analogous principles from other jurisdictions (e.g., Indian CPC) highlight order discretion: Courts may hear striking out (Order VI Rule 16) before rejection (Order VII Rule 11), or vice versa, considering the plaint holistically. Nana Falgunrao Patole VS Nitin Jairam Gadkari - 2021 Supreme(Bom) 1662Md. Nafis S/o Shifat Khan VS Election Commission of India - 2021 Supreme(Bom) 456Madiraju Venkata Ramana Raju VS Peddireddigari Ramachandra Reddy - 2018 4 Supreme 261
While no strict rule exists, practical considerations guide courts:
Exceptions are rare and jurisdiction-specific. No cited Malaysian documents impose a sequence; Rules of Court grant broad discretion. TAN SWEE YOU vs SAHIRON MOHD YUNUS & ANOR (ENCL 1 & 9) - 2021 MarsdenLR 24CHIONG HOE KEAN vs CHIONG HOE KEAT & ANOR & ANOTHER CASE - 2025 MarsdenLR 903
High Court lacks jurisdiction for intra-division transfers/consolidations if distinct, underscoring case-by-case analysis. CJ POLYMERS SDN BHD vs KERK HAN MENG & ANOR
To decide consolidation:1. Risk of inconsistent judgments. AMD CONSTRUCTION SDN BHD vs TANAH LAMAN SDN BHD & ANOR2. Judicial economy and efficiency. BORNEO MUSIC CONSERVATORY SDN BHD vs MALAYSIAN RED CRESENT SOCIETY (SABAH BRANCH)3. No cross-actions or role reversals. BORNEO MUSIC CONSERVATORY SDN BHD vs MALAYSIAN RED CRESENT SOCIETY (SABAH BRANCH)4. Bona fides—not delaying tactics.
Striking out tests:- Scandalous, frivolous, or abuse of process? YEW SEE TAK vs CG COMPUTERS SDN BHD & ORS- Insufficient particulars? Rarely grounds alone. MALACHEMENAIDU & ANOR vs HAJJAH SARAH & ORS (ENCL 116)
Parties retain remedies like Order 1 Rule 10 for misjoinder post-filing. K. V. V. Balasubramanyam VS B. Markandeyulu - 2010 Supreme(AP) 656
In summary, courts typically do not require hearing a striking out application before consolidation. Judicial discretion ensures efficiency and justice, treating them as independent steps. TAN SWEE YOU vs SAHIRON MOHD YUNUS & ANOR (ENCL 1 & 9) - 2021 MarsdenLR 24LIN WOON FUI vs DATO SERI THAI KIM SIM - 2025 MarsdenLR 1949SUPREME INFINITY LAND SDN BHD vs PASIR BOGAK INDAH SDN BHD - 2022 MarsdenLR 493
Key Takeaways:- No explicit mandate in Rules of Court.- Discretion based on facts, avoiding inconsistency.- Striking out for clear flaws; consolidation for overlaps.- Prioritize justice over rigidity.
Stay informed on procedural nuances to strengthen your case. For tailored advice, engage legal professionals familiar with your jurisdiction.
References:1. TAN SWEE YOU vs SAHIRON MOHD YUNUS & ANOR (ENCL 1 & 9) - 2021 MarsdenLR 24: Separate applications, judicial discretion.2. CHIONG HOE KEAN vs CHIONG HOE KEAT & ANOR & ANOTHER CASE - 2025 MarsdenLR 903: Consolidation as independent step.3. SUPREME INFINITY LAND SDN BHD vs PASIR BOGAK INDAH SDN BHD - 2022 MarsdenLR 493: Independent consolidation decisions.4. Additional insights from LIN WOON FUI vs DATO SERI THAI KIM SIM - 2025 MarsdenLR 1949, BORNEO MUSIC CONSERVATORY SDN BHD vs MALAYSIAN RED CRESENT SOCIETY (SABAH BRANCH), AMD CONSTRUCTION SDN BHD vs TANAH LAMAN SDN BHD & ANOR, CJ POLYMERS SDN BHD vs KERK HAN MENG & ANOR, YEW SEE TAK vs CG COMPUTERS SDN BHD & ORS, MALACHEMENAIDU & ANOR vs HAJJAH SARAH & ORS (ENCL 116).
#CourtProcedures, #LegalApplications, #MalaysiaLaw
The plaintiffs' claims, however extravagant, disclose triable issues which must be determined at trial; (c) Defendant's application for consolidation and transfer (encl 12) is allowed. ... Kerajaan Negeri Pahang Darul Makmur & Anor; [2016] 3 MLJ 1; [2016] 3 CLJ 1; [2016] 2 AMR 795 the Federal Court held that the test for striking out is whether the claim on the face of it is "obviously unsustainable". ... Whether they are proven, and to what extent, is a matter for trial; [22] In lig....
We may add that in such circumstances, one of the tests in deciding whether consolidation should be ordered is to determine whether two inconsistent judgments will come into existence if it is not ordered". ... The transfer was with the purpose for both these suits to be heard together with suit No WA-22NCC-858-12/2024 ("Suit 858") (also formerly known as WA-22NCvC-429-07/2024). ... Whether this Court shares the same view will be deliberated. [21] In a Federal Court case of Central Securities (Hold....
s 25(2) of the Courts of Judicature Act 1964 ("CJA") ; and whether the Plaintiff's application for consolidation had complied with Court. ... I therefore hold that res judicata does not apply to the application for transfer and consolidation filed in this Suit.
24.The question for determination is whether only an assertion of this fact can result in the transposition of the applicants as appellants, or whether these facts must be proved to the satisfaction of the court. ... Haripal filed an application before the Consolidation Officer for recalling the order dated 11/08/1999 on 24/04/2001. ... The petitioners have approached this Court being aggrieved by the order dated 14/10/2025 passed by the Settlement of Consolidation whereby he has reje....
To avoid inconsistent findings on both factual and legal issues, the defendants further argue that both suits must be heard in the same forum. [12] As support for their application, the defendants cite the Court of Appeal case of Jaya Sudhir Jayaram v. ... We may add that in such circumstances, one of the tests in deciding whether consolidation should be ordered is to determine whether two inconsistent judgments will come into existence if it is not ordered. [Emphasis Added] ... .......
In the event the interlocutory application ie the striking out application made by the Third Party in the Sessions Court Suit is allowed by the Court, then the Third Party proceedings is no longer exist and this consolidation application no longer involved the third party. ... [27] In summary, the third party (Ms Ngui & Associates) contends that it is important to inform this Court that the suits that are intended for consolidation in the Plaintiff's application are ....
Ismail bin Majin, Returning Officer & Ors and another application, [2000] 3 MLJ 434, an application for striking out based on the ground of insufficient particulars cannot be a good reason for striking out. ... [40] Thirdly, the Other defendants' Striking-Out Application in Suit 662 was allowed on a technical ground. Namely that the plaintiffs therein did not file any affidavit in reply to object to the said striking out application. ... [16] The ....
Heard learned counsel for petitioner as well as Shri Hemant Kumar Pandey, learned State Counsel. 2. ... On being asked specific query from learned counsel for the petitioner whether while deciding the objection under Section 9A(2) of the Act, 1953 by the Consolidation Officer, the names of the petitioners along with respondent nos.3 to 7 were also allowed to be continued in the record or whether the names ... Within four days of rejection of the said application, a recall application w....
We may add that in such circumstances, one of the tests in deciding whether consolidation should be ordered is to determine whether two inconsistent judgments will come into existence if it is not ordered." ... "[26] It must be stressed at this point that the power of transfer cannot be equated with the power to order consolidation of the suits. ... was not for both OS 547 and Suit 786 to be heard together, instead, the application expressly sought for Suit 786 to b....
[35] If D2D3's striking out application is not allowed, they have not lost their case. The merits of their defence will still be canvassed, heard and determined at trial. ... And I am inclined to say that in the circumstances of this suit, it is fit and just to dismiss D2D3's striking out application, so that both sides' respective cases can be heard and determined at trial. ... [64] We are also of the view that in dealing with an application for striking#....
Reference would be made first to the relevant pleadings in the election petition, thereafter the grounds on which the returned candidate seeks those pleadings to be struck off and the consideration of the same. But if the Court decides to proceed with the application under Order VI Rule 16 for striking out the pleadings before consideration of the application under Order VII Rule 11 for rejection of the plaint, on allowing the former application after striking out the relevant pleadings then the Court must consider the remainder pleadings of the plaint in reference to the postulate....
6. Following the latter course, it would be necessary to first take into consideration the application moved by the returned candidate under the provisions of Order VI, Rule 16 of the Code. But if the Court decides to proceed with the application under Order VI, Rule 16 for striking out the pleadings before consideration of the application under Order VII, Rule 11 for rejection of the plaint, on allowing the former application after striking out the relevant pleadings then the Court must consider the remainder pleadings of the plaint in reference to the postulates of Order VII, Rul....
But if the court decides to proceed with the application under Order VI Rule 16 for striking out the pleadings before consideration of the application under Order VII Rule 11 for rejection of the plaint, on allowing the former application after striking out the relevant pleadings then the court must consider the remainder pleadings of the plaint in reference to the postulates of Order VII Rule 11, for determining whether the plaint (after striking out pleadings) deserves to be rejected in limine. If the court decides to hear the application under Order VII Rule 11 in the fi....
If the court decides to hear the application under Order VII Rule 11 in the first instance, the court would be obliged to consider the plaint as filed as a whole. But if the court decides to proceed with the application under Order VI Rule 16 for striking out the pleadings before consideration of the application under Order VII Rule 11 for rejection of the plaint, on allowing the former application after striking out the relevant pleadings then the court must consider the remainder pleadings of the plaint in reference to the postulates of Order VII Rule 11, for determining whether ....
As and when an application for this purpose is filed, it needs to be considered on its own merits. As of now, the complaint in this regard is not from the parties who take objection for their being arrayed as defendants. It is not as if the defendants do not have any remedy, if they are of the view that certain persons who are not necessary or proper parties to the suit are impleaded as defendants or that any portion of the plaint is unnecessary, and thereby liable to be struck off. As regards the first aspect, an application under Order I Rule 10 C.P.C., can be filed for striking ....
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