PALANIANDY A/L SADAYAN 1. ) REGU A/L VEDY KAUNDAN 2. ) MANI ARASI A/P CHANDRAN

PALANIANDY A/L SADAYAN 1. ) REGU A/L VEDY KAUNDAN 2. ) MANI ARASI A/P CHANDRAN

The trial judge properly exercised her discretion in refusing a further adjournment given the appellant's repeated failures to attend, the defendants' readiness to proceed, and the appellant's conduct which pointed to deliberate absence; the judgment was given after a hearing on merits and therefore the proper remedy was appeal rather than setting aside under Order 35 r 2; additionally, procedural breaches (late service of record) and lack of strong prospects of success warranted dismissal of the appeals with costs.

Citation
WA-12ANCvC-133-08/2023 (Mahkamah Tinggi)
Parties
Appellant / Plaintiff: PALANIANDY A/L SADAYAN; Respondent / Defendant: REGU A/L VEDY KAUNDAN; Respondent / Defendant: MANI ARASI A/P CHANDRAN; Respondent / Defendant: AAKASH GREEN ENERGY SDN. BHD.
Court
High Court
Jurisdiction
Malaysia
Judgment Date
28 February 2024
Case Number
WA-12ANCvC-133-08/2023 (Mahkamah Tinggi)
Procedural Posture
Civil Appeal From Sessions Court / Judgment on Appeal (final)
Outcome
Both appeals dismissed with costs
Legal Topics
Adjournment, Default Judgment, Setting Aside Judgment (order 35 R 2), Record of Appeal Compliance (order 55 R 3), Exercise of Judicial Discretion, Costs
Source Language
Malay/English
Civil Procedure Appeals Judgment in Absence Adjournment Default Judgment Setting Aside Judgment (order 35 R 2) Record of Appeal Compliance (order 55 R 3) Exercise of Judicial Discretion +1 more

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Parties

PALANIANDY A/L SADAYAN

Appellant / Plaintiff

REGU A/L VEDY KAUNDAN

Respondent / Defendant

MANI ARASI A/P CHANDRAN

Respondent / Defendant

AAKASH GREEN ENERGY SDN. BHD.

Respondent / Defendant

Procedural Posture

Civil Appeal From Sessions Court / Judgment on Appeal (final)

Legal Issues

  1. 1 Whether the Sessions Court judge erred in refusing further adjournment and in delivering judgment in the plaintiff's absence
  2. 2 Whether the application to set aside the judgment under Order 35 r 2 should be allowed
  3. 3 Whether non-compliance with Rules (late service of record of appeal / Order 55 r 3) invalidates the appeal record

Ratio Decidendi

The trial judge properly exercised her discretion in refusing a further adjournment given the appellant's repeated failures to attend, the defendants' readiness to proceed, and the appellant's conduct which pointed to deliberate absence; the judgment was given after a hearing on merits and therefore the proper remedy was appeal rather than setting aside under Order 35 r 2; additionally, procedural breaches (late service of record) and lack of strong prospects of success warranted dismissal of the appeals with costs.

Court Disposition

Both appeals dismissed with costs

Orders

  • Both appeals dismissed with costs