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Case Significance

Illustrates that filing a fresh suit to set aside a judgment that is already the subject of a pending appeal is an abuse of process; the proper course is the appeal, and such a collateral action is liable to be struck out under Order 18 rule 19 of the Rules of Court 2012.

This High Court decision at Shah Alam, delivered by Judicial Commissioner Hazizah Kassim, concerns two interlocutory applications heard together in a suit that was itself a collateral attack on an earlier judgment. The dispute was a family one. In an earlier action referred to as Guaman 580, decided after a full trial, the present plaintiffs had been defendants; they filed a notice of appeal against that judgment on 12 June 2024 but, before the appeal was heard, commenced this fresh suit seeking to set aside both the 7 June 2024 judgment in Guaman 580 and an earlier ex parte order. The defendants applied to strike out the writ and statement of claim (Kandungan 7), while the plaintiffs applied to stay execution of the Guaman 580 judgment pending disposal of the present suit (Kandungan 9). One of the individual defendants had been declared mentally incapacitated and was represented by a litigation friend, described in the judgment as a sahabat wakil (next friend or representative); the plaintiffs also sought to call an Islamic religious expert to determine that defendant's validity as a wali (guardian) in a marriage.

The court held that the plaintiffs' proper course was to pursue their pending appeal against Guaman 580, not to file a new suit to set aside that judgment. It observed that an allegation of fraud must be established by evidence appropriate to the circumstances, and that on the authority of Indira Gandhi Mutho and related decisions it was precluded from adjudicating on the validity of the fifth defendant as a wali. Being satisfied that the requirements of Order 18 rule 19(1)(b) and (d) of the Rules of Court 2012 were met, the court allowed the striking-out application, ordering the plaintiffs to pay RM5,000 in costs, and dismissed the stay application with RM2,000 costs, both subject to allocatur. The judgment illustrates how the courts treat a fresh action to set aside a judgment already under appeal as an abuse of process.