DALAM MAHKAMAH RAYUAN MALAYSIA
(BIDANG KUASA SIVIL)
RAYUAN SIVIL NO. W-02-1058-07
ANTARA
P. RAVEENTHARAN A/L PERIASAMY
…
PERAYU
1) VALUGHESE @ GEORGE THOMAS
(Didakwa sebagai Pentadbir di bawah
Surat-surat kuasa mentadbir Harta Pesaka
P.V Thomas s/o Varghese (si mati)
…
RESPONDEN
PERTAMA
2) JOHN THOMAS S/O P V THOMAS
(Didakwa sebagai Pentadbir di bawah
Surat-surat kuasa mentadbir Harta Pesaka
P.V Thomas s/o Varghese (si mati)
…
RESPONDEN
KEDUA
DAN
(Dalam perkara mengenai Guaman No. S1-22-658-1998
Dalam Mahkamah Tinggi Malaya di Kuala Lumpur)
Antara
P. Raveentharan a/l A. Periasamy
…
Dan
Plaintif
1) Valughese @ George Thomas
(Didakwa sebagai Pentadbir di bawah
Surat-surat kuasa mentadbir Harta Pesaka
P.V Thomas s/o Varghese (si mati)
…
Defendan
Pertama
2) John Thomas s/o P V Thomas
(Didakwa sebagai Pentadbir di bawah
Surat-surat kuasa mentadbir Harta Pesaka
P.V Thomas s/o Varghese (si mati)
…
Responden
Kedua
CORAM:
LOW HOP BING, JCA
SULONG BIN MATJERAIE, JCA
RAMLY BIN HJ ALI, JCA
LOW HOP BING, JCA
(DELIVERING THE JUDGMENT OF THE COURT)
I.
APPEAL
[1]
On 7 December 2004, the learned judge of the Kuala Lumpur
High Court dismissed the appellant’s (“the plaintiff’s”) claim against
the respondents (“the defendants”).
against that decision.
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This is the plaintiff’s appeal
[2]
Having dismissed the plaintiff’s appeal on 5 May 2009, we now
give our grounds.
II.
FACTUAL BACKGROUND
[3]
On 10 May 2004, when this pre-2000 civil action came up for
case management in the High Court, respective learned counsel for
the parties agreed to 7 and 8 December 2004 as the trial dates.
Consequential directions were given to the parties to prepare
affidavits verifying the list of documents and the bundle of documents.
[4]
The next case management date was 13 September 2004.
The absence of the plaintiff’s counsel led to a postponement of the
case management to 20 September 2004 when, in the presence of
the parties’ respective counsel, further directions were given for the
preparation of the trial, and to report to the Court on 29 November
2004 relating to the progress of the preparation of the relevant
documents and witness’ statements for trial. On 29 November 2004,
defendants’ counsel was present but the plaintiff’s counsel was
absent.
[5]
Present on the first day of the trial, 7 December 2004 at
9.20am, were the defendants’ counsel, the first defendant and a
representative of the second defendant. However, the plaintiff and
his counsel did not appear that morning, thereby causing the trial to
be stood down. When the trial Court reconvened at 9.45am on the
same day, the plaintiff’s counsel was present but not the plaintiff.
Plaintiff’s counsel informed the learned trial judge that the plaintiff
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was absent, having been taken ill in India, and then produced a copy
of facsimile “medical certificate” purportedly to prove the plaintiff’s
illness, as a ground to apply for postponement.
[6]
Defendants’ learned counsel objected to the application for
postponement, since the plaintiff ought to know that the trial had been
fixed for 7 and 8 December 2004, but had chosen to leave for India.
He stressed that there was no way to verify the authenticity of the
facsimile “medical certificate”.
[7]
The learned trial judge sustained the submission of defendants’
counsel and held that the “medical certificate” has not expressly
declared that the plaintiff was not fit to attend court, but merely stated
that the plaintiff “is suffering from a viral fever”. Hence, the plaintiff’s
application for postponement was refused and the trial proceeded.
[8]
Plaintiff’s learned counsel then informed the learned trial judge
that without the plaintiff, he could not prove the plaintiff’s claim.
[9]
Defendants’ learned counsel pressed for the case to proceed
and argued that if the plaintiff could not prove his case, then the trial
court could apply O.35 r.1(2) of the Rules of the High Court 1980.
[10] In the circumstances, the learned trial judge invoked O.35 r.1(2)
and held that since the plaintiff has failed to prove his claim, it was
dismissed with costs.
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III.
QUESTION FOR DETERMINATION
[11] The question for determination in the instant appeal is simple
and straightforward i.e whether the learned trial judge had rightly
exercised his discretion under O.35 r.1(2)?
[12] O.35 r.1(2) reads as follows:
“If, when the trial of an action is called on, one party does not appear, the
Judge may proceed with the trial of the action or any counterclaim in the
absence of that party”.
[13] O.35 r.1(2) gives the learned trial judge the discretion to
proceed with the trial of the action in the absence of the party e.g the
plaintiff in the instant appeal.
The discretion must be exercised
judicially and according to established principles having regard to the
facts and circumstances prevailing in the particular case.
[14] We are of the view that in refusing a postponement and in
proceeding with the trial of the action, the learned trial judge has
exercised his discretion on the basis of the facts and circumstances
prevailing before him. That exercise of discretion is purely his. It is
an unfettered discretion which an appellate court should not interfere
unless the plaintiff is able to discharge the onus of proving that, on
the facts and circumstances prevailing at the trial, the exercise of
discretion by the learned trial judge is erroneous, wrongful or against
established judicial principles. In the instant appeal, the trial of the
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action had proceeded properly pursuant to O.35 r.1(2).
It was a
result of the plaintiff’s own making. It is apparent to us that the entire
episode was engineered by him and no one else. We therefore hold
that the plaintiff had failed to demonstrate any erroneous or wrongful
exercise of discretion by the trial judge, nor had the plaintiff
established that the learned trial judge had failed to act according to
established judicial principles.
IV.
CONCLUSION
[15] We had no difficulty in dismissing the plaintiff’s appeal with
costs of RM1,000, and in affirming the order of the Court below.
Deposit to the defendants on account of the fixed costs.
DATUK WIRA LOW HOP BING
Judge
Court of Appeal Malaysia
PUTRAJAYA
Dated this 8th day of January 2010
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COUNSEL FOR APPELLANT:
Mr P. Raveentharan a/l Periasamy
No. 62, Jalan Satu
Taman Klang Jaya
41200 Klang
SELANGOR DARUL EHSAN
COUNSEL FOR RESPONDENT:
Mr Verghese George
Tetuan Zain & Co.
Peguambela dan Peguamcara
Tingkat 6 & 7, Menara Etiqa
23 Jalan Melaka
50100 KUALA LUMPUR
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