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. 2 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 3 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. 4 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 5 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 6 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 7