LANGKAH UTARA SDN.BHD. v 1. ) NORAZMAN BIN HAMIDUN 2. ) NORDIN BIN HAMIDON 3. ) PERMODALAN KEDAH BERHAD

Case Significance

Illustrates the court's reluctance to reinstate proceedings dismissed for non-attendance under Order 35 rule 2 of the Rules of Court 2012 where the applicant has delayed inordinately, failed to substantiate a medical excuse, and resorted to a belated and reactive amendment application.

This High Court decision at Alor Setar concerns applications to reinstate a civil suit that had been dismissed for non-attendance, and to amend the reinstatement application. The underlying suit sought damages in connection with a mining agreement, the third defendant having been involved in the termination of that agreement by a deed of cancellation. After the suit was dismissed for the plaintiff's non-attendance, the plaintiff applied under Order 35 rule 2 of the Rules of Court 2012 to reinstate it, relying on alleged medical incapacity; but it failed to furnish the medical certificate on which that ground depended and did not comply with the statutory time limit for such an application. It then sought, by a further application, to amend the reinstatement application so as to invoke the correct rule and to add a prayer for an extension of time. The court examined both applications and the plaintiff's conduct. It found that the amendment application was a reactive measure, prompted only after the procedural objection had been raised, and so lacked the character of a bona fide application and bore the hallmarks of an afterthought; that it had been brought too late; and that, even though it included a prayer for an extension of time, the plaintiff had failed to furnish cogent and satisfactory reasons to justify the delay — a burden that lay squarely on the applicant. Against the background of the plaintiff's deliberate absence, the inordinate delay and the absence of the promised medical evidence, the court was not persuaded that the applications should succeed and refused reinstatement. The court stressed that the discretion to reinstate is not to be exercised in favour of a party who has been the author of its own procedural predicament and then sought to repair it only when confronted with an objection. The judgment illustrates the court's reluctance to reinstate proceedings dismissed for non-attendance where the applicant has delayed, failed to substantiate its excuse, and resorted to a belated and reactive amendment.