P.RAVEENTHARAN A/L A.PERIASAMY v TETUAN GURDIP SARJIT & CO

Case Significance

Instructive on the distinction between ex parte and inter partes interlocutory orders under Order 32 of the Rules of Court 2012, and on the abuse of process in seeking to set aside, rather than appeal, an order made after a party defaulted on its opportunity to be heard.

This High Court decision at Shah Alam concerns applications by a plaintiff to set aside three earlier interlocutory orders made on 7 November 2024, in a suit the plaintiff had brought against a law firm, Tetuan Gurdip Sarjit & Co, alleging misconduct. The orders in question had struck out the plaintiff's statement of claim under Order 18 rule 19 of the Rules of Court 2012, corrected a clerical error in the heading of the defendant's court documents, and dealt with the plaintiff's own related application. The plaintiff's central contention was that because the orders had been made in his absence they must be treated as ex parte orders capable of being set aside under Order 32 rule 6 of the Rules of Court 2012. The defendant opposed the applications, arguing that the orders had been made inter partes, after proper notice and an opportunity to be heard under Order 32 rule 5, so that the applications amounted to an improper collateral attack on final interlocutory orders and an abuse of process, the proper recourse being an appeal. The court, per Datin Asmah binti Musa JC, held that the plaintiff had failed to demonstrate any ground for disturbing the orders. It found that the orders were made inter partes and were valid, that the plaintiff had been afforded ample notice and indulgence but had failed to exercise his right to be heard, and that a party cannot approbate and reprobate the litigation process by attending when convenient and demanding a rehearing when not. The medical certificate tendered to excuse the plaintiff's absence was found to be neither timely nor credible. Holding that no breach of natural justice had occurred, that Order 32 rule 6 did not apply to inter partes orders, and that the amendment and striking-out had been properly ordered, the court dismissed the applications, emphasising that the plaintiff's proper remedy was an appeal rather than a rehearing disguised as a setting-aside motion. The judgment is instructive on the distinction between ex parte and inter partes orders and on the abuse of process involved in re-litigating an order that should be appealed.