12. Entry of Appearance to Writ or Originating Summons.
12. Entry of Appearance to Writ or Originating Summons.
order 12.
Entry of Appearance to Writ or Originating Summons
1.Mode of entering appearance. (O. 12 r. 1)
(1)Subject to paragraph (2) and to Order 76, rule 2, a defendant to an action begun by writ may (whether or not he is sued as a trustee or personal representative or in any other representative capacity) enter an appearance in the action and defend it by a solicitor or in person.
(2)Except as expressly provided by any written law, a defendant to such an action who is a body corporate may not enter an appearance in the action or defend it otherwise than by a solicitor.
(3)An appearance is entered by properly completing the requisite documents, that is to say, a memorandum of appearance, as defined by rule 2, and a copy thereof, and handing them in at, or sending them by post to, the Registry.
(4)If two or more defendants to an action enter an appearance by the same solicitor and at the same time, only one set of the requisite documents need be completed and delivered for those defendants.
2.Memorandum of appearance. (O. 12 r. 2)
(1)A memorandum of appearance is a request to the Registry to enter an appearance for the defendant or defendants specified in the memorandum.
(2)A memorandum of appearance must be in Form 15 and both the memorandum of appearance and the copy thereof required for entering an appearance must be signed by the solicitor by whom the defendant appears or, if the defendant appears in person, by the defendant.
(3)A memorandum of appearance must specify–
(a) in the case of a defendant appearing in person, the address of his place of residence and, if his place of residence is not within the jurisdiction or if he has no place of residence, the address of a place within the jurisdiction at or to which documents for him may be delivered or sent; and
(b) in the case of a defendant appearing by a solicitor a business address of his solicitor’s within the jurisdiction, and where the defendant enters an appearance in person, the address within the jurisdiction specified under sub-paragraph (a) shall be his address for service, but otherwise his solicitor’s business address shall be his address for service.
(4)If the Court is satisfied on application by the plaintiff that any address specified in the memorandum of appearance is not genuine, the Court may set aside the appearance.
3.Procedure on receipt of requisite documents. (O. 12 r. 3)
(1)On receiving the requisite documents an officer of the Registry must in all cases affix to the copy of the memorandum of appearance an official stamp showing the date on which he received those documents and enter the appearance in the cause book, and–
(a) if the requisite documents were handed in at the Registry, hand back that copy of the memorandum; and
(b) if they were sent by post, send that copy by post to the plaintiff or, as the case may be, his solicitor at the plaintiff’s address for service and also send by post to the defendant or, as the case may be, his solicitor at the defendant’s address for service a notice of appearance (stamped with an official stamp showing that date) stating that the defendant specified therein entered an appearance on that date.
(2)Where the defendant enters an appearance by handing in the requisite documents at the Registry, he must on the date on which he enters the appearance send by post to the plaintiff, if the plaintiff sues in person, but otherwise to the plaintiff’s solicitor, at -the plaintiff’s address for service, the copy of the memorandum of appearance handed back to him under paragraph (1).
4.Time limited for appearing. (O. 12 r. 4)
References in these rules to the time limited for appearing are refernces–
(a) in the case of a writ served within the local jurisdiction of each High Court in Malaya, to 8 days and served outside such local juridiction but within the jurisdiction of Malaya, to 12 days after service of the writ (including the day of service) or, where that time has been extended by or by virtue of these rules, to that time as so extended; and
(b) in the case if a writ served within Sarawak or Sabah, to 10 days after service of the writ (including the day of service) or in the case of a defendant whose place of residence or if an incorporated society whose registered office of busness is not within the Division or Residency in which is situated the Registry out of which the writ of summons was issued, 20 days after service of the writ (including the day of service);
(c) in the case of a notice of a writ served out of the jurisdiction, to the time limited under Order 10, rule 2(2), or Order 11, rule 4(3), or, where that time has been extended as aforesaid, to that time as so extended.
5.Late appearance. (O. 12 r. 5)
(1)A defendant may not enter an appearance in an action after judgment has been entered therein except with the leave of the Court.
(2)Except as provided by paragraph (1), nothing in these rules or any writ or order thereunder shall be construed as precluding a defendant from entering an appearance in an action after the time limited for appearing, but if a defendant enters an appearance after that time, he shall not, unless the Court otherwise orders, be entitled to serve a defence or do any other thing later than if he had appeared within that time.
6.Conditional appearance. (O. 12 r. 6)
(1)A defendant to an action may with the leave of the Court enter a conditional appearance in Form 16 in the action.
(2)A conditional appearance, except by a person sued as a partner of a firm in the name of that firm and served as a partner, is to be treated for all purposes as an unconditional appearance unless the Court otherwise orders or the defendant applies to the Court, within the time limited for the purpose, for an order under rule 7 and the Court makes an order thereunder.
7.Application to set a side writ, etc. (O. 12 r. 7)
(1)A defendant to an action may at any time befire entering an appearance therein, or if he has entered a conditional appearance, within 14 days after entering the appearance, apply to the Court for an order setting aside the writ or service of the writ, or notice of the writ, on him, or declaring that the writ or notice has not been duly served on him or discharging any order giving leave to serve the notice on him out of the jurisdiction.
(2)An application under this rule must be made by summons.
8.Appearance to origination summons. (O. 12 r. 8)
(1)Subject to paragraph (2), an appearance must be entered to every originating summons (other than an ex parte originating summons) by each defendant named in and served with the summons.
(2)No appearance need be entered to an originating summons in any case or class of case in relation to which special provision to that effect is made by these rules or by or under any written law.
(3)Subject to the foregoing provisions of this rule, the foregoing rules of this Order shall apply in relation to an originating summons to which an appearance is required to be entered as they apply in relation to a writ except that for the reference in rule 4(b) to Order 11, rule 4(3), there shall be substituted a reference to Order 11, rule 9(6).
Entry of Appearance to Writ or Originating Summons
1.Mode of entering appearance. (O. 12 r. 1)
(1)Subject to paragraph (2) and to Order 76, rule 2, a defendant to an action begun by writ may (whether or not he is sued as a trustee or personal representative or in any other representative capacity) enter an appearance in the action and defend it by a solicitor or in person.
(2)Except as expressly provided by any written law, a defendant to such an action who is a body corporate may not enter an appearance in the action or defend it otherwise than by a solicitor.
(3)An appearance is entered by properly completing the requisite documents, that is to say, a memorandum of appearance, as defined by rule 2, and a copy thereof, and handing them in at, or sending them by post to, the Registry.
(4)If two or more defendants to an action enter an appearance by the same solicitor and at the same time, only one set of the requisite documents need be completed and delivered for those defendants.
2.Memorandum of appearance. (O. 12 r. 2)
(1)A memorandum of appearance is a request to the Registry to enter an appearance for the defendant or defendants specified in the memorandum.
(2)A memorandum of appearance must be in Form 15 and both the memorandum of appearance and the copy thereof required for entering an appearance must be signed by the solicitor by whom the defendant appears or, if the defendant appears in person, by the defendant.
(3)A memorandum of appearance must specify–
(a) in the case of a defendant appearing in person, the address of his place of residence and, if his place of residence is not within the jurisdiction or if he has no place of residence, the address of a place within the jurisdiction at or to which documents for him may be delivered or sent; and
(b) in the case of a defendant appearing by a solicitor a business address of his solicitor’s within the jurisdiction, and where the defendant enters an appearance in person, the address within the jurisdiction specified under sub-paragraph (a) shall be his address for service, but otherwise his solicitor’s business address shall be his address for service.
(4)If the Court is satisfied on application by the plaintiff that any address specified in the memorandum of appearance is not genuine, the Court may set aside the appearance.
3.Procedure on receipt of requisite documents. (O. 12 r. 3)
(1)On receiving the requisite documents an officer of the Registry must in all cases affix to the copy of the memorandum of appearance an official stamp showing the date on which he received those documents and enter the appearance in the cause book, and–
(a) if the requisite documents were handed in at the Registry, hand back that copy of the memorandum; and
(b) if they were sent by post, send that copy by post to the plaintiff or, as the case may be, his solicitor at the plaintiff’s address for service and also send by post to the defendant or, as the case may be, his solicitor at the defendant’s address for service a notice of appearance (stamped with an official stamp showing that date) stating that the defendant specified therein entered an appearance on that date.
(2)Where the defendant enters an appearance by handing in the requisite documents at the Registry, he must on the date on which he enters the appearance send by post to the plaintiff, if the plaintiff sues in person, but otherwise to the plaintiff’s solicitor, at -the plaintiff’s address for service, the copy of the memorandum of appearance handed back to him under paragraph (1).
4.Time limited for appearing. (O. 12 r. 4)
References in these rules to the time limited for appearing are refernces–
(a) in the case of a writ served within the local jurisdiction of each High Court in Malaya, to 8 days and served outside such local juridiction but within the jurisdiction of Malaya, to 12 days after service of the writ (including the day of service) or, where that time has been extended by or by virtue of these rules, to that time as so extended; and
(b) in the case if a writ served within Sarawak or Sabah, to 10 days after service of the writ (including the day of service) or in the case of a defendant whose place of residence or if an incorporated society whose registered office of busness is not within the Division or Residency in which is situated the Registry out of which the writ of summons was issued, 20 days after service of the writ (including the day of service);
(c) in the case of a notice of a writ served out of the jurisdiction, to the time limited under Order 10, rule 2(2), or Order 11, rule 4(3), or, where that time has been extended as aforesaid, to that time as so extended.
5.Late appearance. (O. 12 r. 5)
(1)A defendant may not enter an appearance in an action after judgment has been entered therein except with the leave of the Court.
(2)Except as provided by paragraph (1), nothing in these rules or any writ or order thereunder shall be construed as precluding a defendant from entering an appearance in an action after the time limited for appearing, but if a defendant enters an appearance after that time, he shall not, unless the Court otherwise orders, be entitled to serve a defence or do any other thing later than if he had appeared within that time.
6.Conditional appearance. (O. 12 r. 6)
(1)A defendant to an action may with the leave of the Court enter a conditional appearance in Form 16 in the action.
(2)A conditional appearance, except by a person sued as a partner of a firm in the name of that firm and served as a partner, is to be treated for all purposes as an unconditional appearance unless the Court otherwise orders or the defendant applies to the Court, within the time limited for the purpose, for an order under rule 7 and the Court makes an order thereunder.
7.Application to set a side writ, etc. (O. 12 r. 7)
(1)A defendant to an action may at any time befire entering an appearance therein, or if he has entered a conditional appearance, within 14 days after entering the appearance, apply to the Court for an order setting aside the writ or service of the writ, or notice of the writ, on him, or declaring that the writ or notice has not been duly served on him or discharging any order giving leave to serve the notice on him out of the jurisdiction.
(2)An application under this rule must be made by summons.
8.Appearance to origination summons. (O. 12 r. 8)
(1)Subject to paragraph (2), an appearance must be entered to every originating summons (other than an ex parte originating summons) by each defendant named in and served with the summons.
(2)No appearance need be entered to an originating summons in any case or class of case in relation to which special provision to that effect is made by these rules or by or under any written law.
(3)Subject to the foregoing provisions of this rule, the foregoing rules of this Order shall apply in relation to an originating summons to which an appearance is required to be entered as they apply in relation to a writ except that for the reference in rule 4(b) to Order 11, rule 4(3), there shall be substituted a reference to Order 11, rule 9(6).
