42. JUDGMENTS AND ORDERS

42. Judgments and Orders.
order 42
Judgments and Orders
1. Judgment to be pronounced in open Court. (O. 42 r. 1)
Every judgment after trial must be pronounced in open Court, either immediately on the conclusion of the trial, or on a subsequent day of which due notice must be given to the parties.
2. Written judgment to be filed (O. 42 r. 2)
Whenever the Court delivers a written judgment, the original or a copy thereof, signed by the Judge must be filed.
3. Judgment of absent Judge. (O. 42 r. 3)
When a Judge who has tried any proceedings is unable through death, illness or other cause to pronounce judgment, the judgment written by him may be read by any other Judge or by the Registrar.
4. Entry of judgment in Cause Book. (O. 42 r. 4)
The proper officer in the Registry must enter in the cause book a minute of every judgment or final order given or made by the Court.
5. Form of judgment, etc. (O. 42 r. 5)
(1) If, in the case of any judgment, a form thereof is prescribed in Form 79 the judgment must be in that form.
(2) The party entering any judgment shall be entitled to have recited therein a statement of the manner in which the writ or other originating process by which the cause or matter in question was begun was served.
(3) An order must be marked with the name of the Judge or the Registrar by whom it was made and must be sealed.
6. Judgment, etc. requiring act to be done: Time for doing it. (O. 42 r. 6)
(1) Subject to paragraph (2), a judgment or order which requires a person to do an act must specify the time after service of the judgment or order, or some other time, within which the act is to be done.
(2) Where the act which any person is required by any judgment or order to do is to pay money to some other person, give possession of any immovable property or deliver any movable property, a time within which the act is to be done need not be specified in the judgment or order by virtue of paragraph (1), but the foregoing provision shall not affect the power of the Court to specify such a time and to adjudge or order accordingly.
7. Date from which judgment or order takes effect. (O. 42 r. 7)
(1) A judgment or order of the Court takes effect from the day of its date.
(2) Such a judgment or order shall be dated as of the day on which it is pronounced, given or made, unless the Court orders it to be dated as of some other earlier or later day, in which case it shall be dated as of that other day.
8. Preparation of judgment or order. (O. 42 r. 8)
(1) Where the party in whose favour a judgment or order is given or made is represented by a solicitor, a copy of the draft shall be submitted for approval to the solicitor (if any) of the other party who shall within 2 days of the receipt thereof, or within such further time as may in any case be allowed by the Registrar, return such copy with his signed consent or any required amendments thereto.
(2) When the solicitor omits to return the copy of the draft within the time prescribed, he shall be deemed to have consented to the terms thereof.
(3) In any case where the solicitors concerned are unable to agree upon the draft, any one of them may obtain an appointment before the Registrar, of which notice shall be given to the other, to settle the terms of the judgment or order.
(4) Every judgment or order shall be settled by the Registrar, but in the case of a judgment or order made by a Judge, any party may require the matter in dispute to be referred to the Judge for his determination.
(5) Where the other party has no solicitor, the draft shall be submitted to the Registrar.
9. Orders required to be drawn up. (O. 42 r. 9)
(1) Subject to paragraph (2), every order of the Court shall be drawn up unless the Court otherwise directs.
(2) An order–
(a) which–
(i) extends the period within which a person is required or authorised by these rules, or by any judgment, order or direction, to do any act; or
(ii) grants leave for the doing of any of the acts mentioned in paragraph (3); and
(b) which neither imposes any special terms nor includes any special directions other than a direction as to costs,
need not be drawn up unless the Court otherwise directs.
(3) The acts referred to in paragraph (2)(a)(ii) are–
(a) the issue of any writ, other than a writ of summons notice of which is required for service out of the jurisdiction;
(b) the amendment of a writ of summons or other originating process or a pleading;
(c) the filing of any document;
(d) any act to be done by an officer of the Court other than a solicitor.
10. Drawing up and entry of judgments and orders. (O. 42 r. 10)
(1) Where a judgment given in a cause a matter is presented for entry in accordance with this rule at the Registry, it shall be entered by an officer of the Registry in the book kept for the purpose.
(2) The party seeking to have such a judgment entered must draw up the judgment and present it to the proper officer of the Registry for entry.
(3) On entering any such judgment the proper officer shall file the judgment and return a duplicate thereof to the party who presented it for entry.
(4) Every order required to be drawn up must be drawn up by the party in whose favour the order has been made and if that party fails to draw up the order within 7 days after it is made any other party affected by the order may draw it up.
(5) The order referred to in paragraph (4) must, when drawn up, be produced at the Registry, together with a copy thereof, and when passed by the proper officer the order, sealed with the seal of the High Court, shall be returned to the party producing it and the copy shall be lodged in the Registry.
11. Duplicates of judgments and orders. (O. 42 r. 11)
(1) Not less than one clear day after a judgment or order has been filed a duplicate thereof shall be supplied on payment of the prescribed fee out of the Registry to any party in the proceedings.
(2) The duplicate of a judgment or order may be a carbon copy of the original except that if the Registrar so directs, the duplicate of every judgment or order of such class as he directs, shall be a photographic copy or a copy produced by type lithography or other similar process.
(3) Before a duplicate of a judgment or order is issued it must be sealed and there must be noted thereon the number of the judgment, the date of entry and the amount of any stamp on the original.
(4) Where by any of these rules or any order of the Court the original judgment or order is required to be produced or served it shall be sufficient to produce or serve the duplicate.
(5) A further duplicate of a judgment or order may, on payment of the prescribed fee, be issued if the Registrar is satisfied that the duplicate has been lost and that the applicant for a further duplicate is entitled to it.
(6) A judgment or order shall not be amended except on production of the duplicate thereof last issued, and if the judgment or order is amended the duplicate so issued, shall be similarly amended, and the amendment sealed, under the direction of the Registrar.
12. Interest on judgment debts. (O. 42 r. 12) [Sub. P.U. (A) 445/86]
Every judgment debt shall carry interest at the rate of 8 per centum per annum or at such other rate not exceeding the rate aforesaid as the Court directs (unless the rate has been otherwise agreed upon between the parties), such interest to be calculated from the date of judgment until the judgment is satisfied.
13. Setting aside or varying judgments and orders. (O. 42 r. 13) [Ins P.U. (A) 192/93]
Where in these Rules provisions are made for the setting aside or varying of any order or judgment, a party intending to set aside or to vary such order or judgment must make his application to the Court and serve it on the party who has obtained the order or judgment within thirty days after the receipt of the order or judgment by him.

41. AFFIDAVITS

41. Affidavits.
order 41
Affidavits
1. Form of affidavit. (O. 41 r. 1)
(1) Subject to paragraphs (2) and (3), every affidavit sworn in a cause or matter must be entitled in that cause or matter.
(2) Where a cause or matter is entitled in more than one matter, it shall be sufficient to state the first matter followed by the words "and other matters", and where a cause or matter is entitled in a matter or matters and between parties, that part of the title which consists of the matter or matters may be omitted.
(3) Where there are more plaintiffs than one, it shall be sufficient to state the full name of the first followed by the words "and others", and similarly with respect to defendants.
(4) Every affidavit must be expressed in the first person and must state the place of residence of the deponent and his occupation or, if he has none, his description, and if he is, or is employed by, a party to the cause or matter in which the affidavit is sworn, the affidavit must state that fact.
(5) Every affidavit must be divided into paragraphs numbered consecutively, each paragraph being as far as possible confined to a distinct portion of the subject.
(6) Dates, sums and other numbers must be expressed in an affidavit in figures and not in words.
(7) Every affidavit must be signed by the deponent and the jurat must be completed and signed by the person before whom it is sworn.
(8) A jurat must be in one of the forms in Form 78.
2. Affidavit by two or more deponents. (O. 41 r. 2)
(1) Where an affidavit is made by two or more deponents, the names of the persons making the affidavit must be inserted in the jurat except that, if the affidavit is sworn by both or all the deponents at one time before the same person, it shall be sufficient to state that it was sworn by both (or all) of the "abovenamed" deponents.
(2) When the oath is administered to deponents in different languages, there shall be a separate jurat for those sworn in each language.
3. Affidavit by illiterate or blind person. (O. 41 r. 3)
Where it appears to the person administering the oath that the deponent is illiterate or blind, he must certify in the jural that–
(a) the affidavit was read in his presence to the depondent;
(b) the deponent seemed perfectly to understand it; and
(c) the deponent made his signature or mark in his presence;
and the affidavit shall not be used in evidence without such a certificate unless the Court is otherwise satisfied that it was read to and appeared to be perfectly understood by the deponent.
4. Use of defective affidavit. (O. 41 r. 4)
An affidavit may, with the leave of the Court, be filed or used in evidence notwithstanding any irregularity in the form thereof.
5. Contents of affidavit. (O. 41 r. 5)
(1) Subject to Order 14, rules 2(2) and 4(2), to paragraph (2) of this rule and to any order made under Order 38, rule 3, an affidavit may contain only such facts as the deponent is able of his own knowledge to prove.
(2) An affidavit sworn for the purpose of being used in interlocutory proceedings may contain statements of information or belief with the sources and grounds thereof.
6. Scandalous, etc., matter in affidavits. (O. 41 r. 6)
The Court may order to be struck out of any affidavit any matter which is scandalous, irrelevant or otherwise oppressive.
7. Alterations in affidavits. (O. 41 r. 7)
(1) An affidavit which has in the jurat or body thereof any interlineation, erasure or other alteration shall not be filed or used in any proceeding without the leave of the Court unless the person before whom the affidavit was sworn has initialled the alteration and, in the case of an erasure, has re-written in the margin of the affidavit any words or figures written on the erasure and has signed or initialled them.
(2) No alteration shall be made in any affidavit after it has been filed, but, before an affidavit is filed alterations may be made therein and the affidavit must be re-sworn with a further jurat commencing with the word "re-sworn", added.
8. Affidavit not to be sworn before solicitor of party, etc. (O. 41 r. 8)
No affidavit shall be sufficient if sworn before the solicitor of the party on whose behalf the affidavit is to be used or before any member of the firm of that solicitor.
9. Filing of affidavits. (O. 41 r. 9)
(1) Except as otherwise provided by these rules, every affidavit must be filed in the Registry.
(2) Every affidavit must be indorsed with a note showing on whose behalf it is filed and the dates of swearing and filing, and an affidavit which is not so indorsed may not be filed or used without the leave of the Court.
10. Use of original affidavit or office copy. (O. 41 r. 10)
(1) Subject to paragraph (2), an original affidavit may be used in proceedings with the leave of the Court, notwithstanding that it has not been filed in accordance with rule 9.
(2) An original affidavit may not be used in any proceedings unless it has previously been stamped with the appropriate fee.
(3) Where an original affidavit is used then, unless the party whose affidavit it is undertakes to file it, he must immediately after it is used file it with the proper officer in the Registry.
(4) Where an affidavit has been filed, an office copy thereof may be used in any proceedings.
1 1. Document to be used in conjunction with affidavit to be exhibited to it. (O. 41 r. 11)
(1) Any document to be used in conjunction with an affidavit must be exhibited and a copy thereof annexed to the affidavit.
(2) Any exhibit to an affidavit must be identified by a certificate of the person before whom the affidavit is sworn.
The certificate must be entitled in the same manner as the affidavit and rule 1(1), (2) and (3) shall apply accordingly.
12. Affidavit taken outside Malaysia admissible without proof of seal, etc. (O. 41 r. 12)
A document purporting to have affixed or impressed thereon or subscribed thereto the seal or signature of a Court, judge, notary public or person having authority to administer oaths in a Commonwealth country and in the case of any other country the seal or signature of a consular officer of a Commonwealth country in testimony of an affidavit being taken before it or him shall be admitted in evidence without proof of the seal or signature being the seal or signature of that Court, judge, notary public or person.

40. COURT EXPERT

40. Court Expert.
order 40
Court Expert
1. Appointment of expert to report on certain question. (O. 40 r. 1)
(1) In any cause or matter in which any question for an expert witness arises the Court may at any time, on the application of any party, appoint an independent expert or, if more than one such question arises, two or more such experts, to inquire and report upon any question of fact or opinion not involving questions of law or of construction.
An expert appointed under this paragraph is referred to in this Order as a "Court expert".
(2) Any Court expert in a cause or matter shall, if possible, be a person agreed between the parties and, failing agreement, shall be nominated by the Court.
(3) The question to be submitted to the Court expert and the instructions (if any) given to him shall, failing agreement between the parties, be settled by the Court.
(4) In this rule "expert", in relation to any question arising in a cause or matter, means any person who has such knowledge or experience of or in connection with that question that his opinion on it would be admissible in evidence.
2. Report of court expert. (O. 40 r. 2)
(1) The court expert must send his report to the Court, together with such number of copies thereof as the Court may direct, and the Registrar must send copies of the report to the parties or their solicitors.
(2) The Court may direct the court expert to make a further or supplemental report.
(3) Any part of a court expert’s report which is not accepted by all the parties to the cause or matter in which it is made shall be treated as information furnished to the Court and be given such weight as the Court thinks fit.
3. Experiments and tests. (O. 40 r. 3)
If the court expert is of opinion that an experiment or test of any kind (other than one of a trifling character) is necessary to enable him to make a satisfactory report he shall inform the parties or their solicitors and shall, if possible, make an arrangement with them as to the expenses involved, the person to attend and other relevant matters; and if the parties are unable to agree on any of those matters it shall be settled by the Court.
4. Cross-examination of court expert. (O. 40 r. 4)
Any party may, within 14 days after receiving a copy of the court expert’s report, apply to the Court for leave to cross-examine the expert on his report, and on that application the Court shall make an order for the cross-examination of the expert by all the parties either–
(a) at the trial; or
(b) before an examiner at such time and place as may be specified in the order.
5. Remuneration of court expert. (O. 40 r. 5)
(1) The remuneration of the court expert shall be fixed by the Court and shall include a fee for his report and a proper sum for each day during which he is required to be present either in Court or before an examiner.
(2) Without prejudice to any order providing for payment of the court expert’s remuneration as part of the costs of the cause or matter, the parties shall be jointly and severally liable to pay the amount fixed by the Court for his remuneration, but where the appointment of a court expert is opposed the Court may, as a condition of making the appointment, require the party applying for the appointment to give such security for the remuneration of the expert as the Court thinks fit.
6. Calling of expert witnesses. (O. 40 r. 6)
Where a court expert is appointed in a cause or matter, any party may, on giving to the other parties a reasonable time before the trial notice of his intention to do so, call one expert witness to give evidence on the question reported on by the court expert but no party may call more than one such witness without the leave of the Court, and the Court shall not grant leave unless it considers the circumstances of the case to be exceptional.

40. COURT EXPERT

40. Court Expert.
order 40
Court Expert
1. Appointment of expert to report on certain question. (O. 40 r. 1)
(1) In any cause or matter in which any question for an expert witness arises the Court may at any time, on the application of any party, appoint an independent expert or, if more than one such question arises, two or more such experts, to inquire and report upon any question of fact or opinion not involving questions of law or of construction.
An expert appointed under this paragraph is referred to in this Order as a "Court expert".
(2) Any Court expert in a cause or matter shall, if possible, be a person agreed between the parties and, failing agreement, shall be nominated by the Court.
(3) The question to be submitted to the Court expert and the instructions (if any) given to him shall, failing agreement between the parties, be settled by the Court.
(4) In this rule "expert", in relation to any question arising in a cause or matter, means any person who has such knowledge or experience of or in connection with that question that his opinion on it would be admissible in evidence.
2. Report of court expert. (O. 40 r. 2)
(1) The court expert must send his report to the Court, together with such number of copies thereof as the Court may direct, and the Registrar must send copies of the report to the parties or their solicitors.
(2) The Court may direct the court expert to make a further or supplemental report.
(3) Any part of a court expert’s report which is not accepted by all the parties to the cause or matter in which it is made shall be treated as information furnished to the Court and be given such weight as the Court thinks fit.
3. Experiments and tests. (O. 40 r. 3)
If the court expert is of opinion that an experiment or test of any kind (other than one of a trifling character) is necessary to enable him to make a satisfactory report he shall inform the parties or their solicitors and shall, if possible, make an arrangement with them as to the expenses involved, the person to attend and other relevant matters; and if the parties are unable to agree on any of those matters it shall be settled by the Court.
4. Cross-examination of court expert. (O. 40 r. 4)
Any party may, within 14 days after receiving a copy of the court expert’s report, apply to the Court for leave to cross-examine the expert on his report, and on that application the Court shall make an order for the cross-examination of the expert by all the parties either–
(a) at the trial; or
(b) before an examiner at such time and place as may be specified in the order.
5. Remuneration of court expert. (O. 40 r. 5)
(1) The remuneration of the court expert shall be fixed by the Court and shall include a fee for his report and a proper sum for each day during which he is required to be present either in Court or before an examiner.
(2) Without prejudice to any order providing for payment of the court expert’s remuneration as part of the costs of the cause or matter, the parties shall be jointly and severally liable to pay the amount fixed by the Court for his remuneration, but where the appointment of a court expert is opposed the Court may, as a condition of making the appointment, require the party applying for the appointment to give such security for the remuneration of the expert as the Court thinks fit.
6. Calling of expert witnesses. (O. 40 r. 6)
Where a court expert is appointed in a cause or matter, any party may, on giving to the other parties a reasonable time before the trial notice of his intention to do so, call one expert witness to give evidence on the question reported on by the court expert but no party may call more than one such witness without the leave of the Court, and the Court shall not grant leave unless it considers the circumstances of the case to be exceptional.

38. EVIDENCE: GENERAL

38. Evidence: General.
order 38
Evidence: General
1. General rule: Witnesses to be examined orally. (Act 56) (O. 38 r. 1)
Subject to the provisions of these rules and of the Evidence Act, 1950 and any other written law relating to evidence, any fact required to be proved at the trial of any action begun by writ by the evidence of witnesses shall be proved by the examination of the witnesses orally and in open Court.
2. Evidence by affidavit (O. 38 r. 2)
(1) The Court may, at or before the trial of an action begun by writ, order that the affidavit of any witness may be read at the trial if in the circumstances of the case it thinks it reasonable so to order.
(2) An order under paragraph (1) may be made on such terms as to the filing and giving of copies of the affidavits and as to the production of the deponents for cross-examination as the Court thinks fit but, subject to any such terms and to any subsequent order of the Court, the deponents shall not be subject to cross-examination and need not attend the trial for the purpose.
(3) In any cause or matter begun by originating summons, originating motion or petition, and on any application made by summons or motion, evidence may be given by affidavit unless in the case of any such cause, matter or application any provision of these rules otherwise provides or the Court otherwise directs, but the Court may, on the application of any party, order the attendance for cross-examination of the person making any such affidavit, and where, after such an order has been made, the person in question does not attend, his affidavit shall not be used as evidence without the leave of the Court.
3. Evidence by particular facts (O. 38 r. 3)
(1) Without prejudice to rule 2, the Court may, at or before the trial of any action, order that evidence of any particular fact shall be given at the trial in such manner as may be specified by the order.
(2) The power conferred by paragraph (1) extends in particular to ordering that evidence of any particular fact may be given at the trial–
(a) by statement on oath of information or belief; or
(b) by the production of documents or entries in books; or
(c) by copies of documents or entries in books; or
(d) in the case of a fact which is or was a matter of common knowledge either generally or in a particular place, by the production of a specified newspaper which contains a statement of that fact.
4. Limitation of expert evidence. (O. 38 r. 4)
The Court may, at or before the trial of any action, order that the number of medical or other expert witnesses who may be called at the trial shall be limited as specified by the order.
5. Limitation of plans, etc. in evidence. (O. 38 r. 5)
Unless, at or before the trial, the Court for special reasons otherwise orders, no plan, photograph or model shall be receivable in evidence at the trial of an action unless at least 10 days before the commencement of the trial the parties, other than the party producing it, have been given an opportunity to inspect it and to agree to the admission thereof without further proof.
6. Expert evidence in action arising out of accident. (O. 38 r. 6)
(1) In an action arising out of an accident on land due to a collision or apprehended collision, unless at or before the trial the Court otherwise orders, the oral expert evidence of an engineer sought to be called on account of his skill and knowledge as respects motor vehicles shall not be receivable in evidence at the trial unless a copy of a report from him containing the substance of this evidence has been made available to all parties for inspection before the hearing of the summons for directions and an order made on the summons for directions or an application thereunder authorizes the admission of the evidence.
(2) The references in this rule to the summons for directions include references to any summons or application to which, under any of these rules, Order 25, rules 2 to 7, are to apply, whether with or without modifications.
7. Revocation of variation of orders under rules 2 to 6. (O. 38 r. 7)
Any order under rules 2 to 6 (including an order made appeal) may, on sufficient cause being shown, be revoked or varied by a subsequent order of the Court made at or before the trial.
8. Application to trials of issues, references, etc. (O. 38 r. 8)
The foregoing rules of this Order shall apply to trials of issues or questions of fact or law, references, inquiries and assessments of damages as they apply to the trial of actions.
9. Depositions; when receivable in evidence at trial. (O. 38 r. 9)
(1) No deposition taken in any cause or matter shall be received in evidence at the trial of the cause or matter unless–
(a) the deposition was taken in pursuance of an Order under Order 39, rule 1; and
(b) either the party against whom the evidence is offered consents or it is proved to the satisfaction of the Court that the deponent is dead, or beyond the jurisdiction of the Court or unable from sickness or other infirmity to attend the trial.
(2) A party intending to use any deposition in evidence at the trial of a cause or matter must, a reasonable time before the trial, give notice of his intention to do so to the other party.
(3) A deposition purporting to be signed by the person before whom it was taken shall be received in evidence without proof of the signature being the signature of that person.
10. Court documents admissible or receivable in evidence. (O. 38 r. 10)
(1) Office copies of writs, records, pleadings and documents filed in the Registry shall be admissible in evidence in any cause or matter and between all parties to the same extent as the original would be admissible.
(2) Without prejudice to the provisions of any written law, every document purporting to be sealed with the seal of the High Court shall be received in evidence without further proof, and any document purporting to be so sealed and to be a copy of a document filed in, or issued out of, the High Court shall be deemed to be an office copy of that document without further proof unless the contrary is shown.
11. Evidence of consent of new trustee to act. (O. 38 r. 11)
A document purporting to contain the written consent of a person to act as trustee and to bear his signature verified by some other person shall be evidence of such consent.
12. Evidence at trial may be used in subsequent proceedings.(O. 38 r. 12)
Any evidence taken at the trial of any cause or matter may be used in any subsequent proceedings in that cause or matter.
13. Order to produce document at proceeding other than trial. (O. 38 r. 13)
(1) At any stage in a cause or matter the Court may order any person to attend any proceedings in the cause or matter and produce any document, to be specified or described in the order, the production of which appears to the Court to be necessary for the purpose of that proceeding.
(2) No person shall be compelled by an order under paragraph (1) to produce any document at a proceeding in a cause or matter which he could not be compelled to produce at the trial of that cause or matter.
14. Form and issue of writ of subpoena. (O. 38 r. 14)
(1) A writ of subpoena must be in Form 67, 68 or 69 whichever is appropriate.
(2) Issue of a writ of subpoena takes place upon its being sealed by an officer of the Registry.
(3) Before a writ of subpoena is issued a praecipe in Form 70 for the issue of the writ must be filed in the Registry; and the praecipe must contain the name and address of the party issuing the writ, if he is acting in person, or the name of firm and business address of that party’s solicitor.
15. More than one name may be included in one writ of subpoena ad testificandum (O. 38 r. 15)
The names of two or more persons may be included in one writ of subpoena ad testificandum.
16. Writ of subpoena duces tecum. (O. 38 r. 16)
(1) A writ of subpoena duces tecum must contain the name of one person only.
(2) Any person served with a writ of subpoena duces tecum shall sufficiently comply if he causes the document to be produced without attending personally.
17. Amendment of writ of subpoena. (O. 38 r. 17)
Where there is a mistake in any person’s name or address in a writ of subpoena, then if the writ has not been served, the party by whom the writ was issued may have the writ re-sealed in correct form by filing a second praecipe under rule 14(3) indorsed with the words "Amended and re-sealed".
18. Service of writ of subpoena. (O. 38 r. 18)
(1) Unless the Court otherwise orders, a writ of subpoena must be served personally and the service shall not be valid unless effected within 12 weeks after the date of issue of the writ.
(2) A writ of subpoena shall not be served on any person outside the jurisdiction.
19. Duration of writ of subpoena. (O. 38 r. 19)
A writ of subpoena continues to have effect until the conclusion of the trial at which the attendance of the witness is required.
20. Court records. (O. 38 r. 20)
(1) An officer of the High Court or of any Subordinate Court shall not be required by a writ of subpoena duces tecum to produce the records of the Court.
(2) If the original of any record of a Court or of any document filed in such Court is for any special reason required, a request for production thereof may, on the application of the party requiring the same, be addressed by the Registrar to that Court.
(3) No mark shall be placed upon any record or document produced under this rule.
21. Attendance of prisoner as witness or party. (81/52) (O. 38 r. 21)
(1) An application for an order under section 30 of the Prisons Ordinance for the production before the Court of a person confined in prison may be made ex parte by summons supported by an affidavit in Form 71.
(2) Unless the Court otherwise orders, the costs of conveyance of the witness in safe custody to and from the Court must be paid in the first instance by the party on whose application the order was issued and shall be costs in the cause.
(3) An order for the production of such person must be in Form 72.
22. Tender of expenses. (O. 38 r. 22)
A witness shall not be compelled to attend on a writ of subpoena unless a reasonable sum to cover his expenses of going to, remaining at, and returning from, Court is extended to him.
23. Affidavit of service of writ of subpoena. (O. 38 r. 23)
An affidavit filed for the purpose of proving the service of a writ of subpoena must state when, where, how and by whom the service was effected.

39. Evidence by Deposition: Examiners of the Court.

39. Evidence by Deposition: Examiners of the Court.
order 39
Evidence by Deposition: Examiners of the Court
1. Power to order depositions to be taken. (O. 39 r. 1)
(1) The Court may, in any cause or matter where it appears necessary for the purposes of justice, make an order in Form 73 for the examination on oath before a Judge or the Registrar or some other person, at any place, of any person.
(2) An order under paragraph (1) may be made on such terms (including, in particular, terms as to the giving of discovery before the examination takes place) as the Court thinks fit.
2. Where person to be examined is out of the jurisdiction. (O. 39 r. 2)
(1) Where the person in relation to whom an order under rule 1 is required is out of the jurisdiction, an application may be made–
(a) for an order in Form 74 under that rule for the issue of a letter of request to the judicial authorities of the country in which that person is to take, or cause to be taken, the evidence of that person; or
(b) if the government of that country allows a person in that country to be examined before a person appointed by the Court, for an order in Form 75 under that rule appointing a special examiner to take the evidence of that person in that country.
(2) An application may be made for the appointment as special examiner of a Malaysian consul in the country in which the evidence is to be taken or his deputy–
(a) if there subsists with respect to that country a Civil Procedure Convention providing for the taking of the evidence of any person in that country for the assistance of proceedings in the High Court; or
(b) with the consent of the Minister.
3. Order for issue of letter of request. (O. 39 r. 3)
(1) Where an order is made under rule 1 for the issue of a letter of request to the judicial authorities of a country to take, or cause to be taken, the evidence of any person in that country the following provision of this rule shall apply.
(2) The party obtaining the order must prepare the letter of request and lodge it in the Registry, and the letter must be in Form 76 with such variations as the order may require.
(3) If the evidence of the person to be examined is to be obtained by means of written questions, there must be lodged with the letter of request a copy of the interrogatories and cross-interrogatories to be put to him on examination.
(4) Unless the official language or one of the official languages of the country in which the examination is to be taken is English, each document lodged under paragraph (2) or (3) must be accompanied by a translation of the document in the official language of that country or, if there is more than one official language of that country, in any one of those languages which is appropriate to the place in that country where the examination is to be taken.
(5) Every translation lodged under paragraph (4) must be certified by the person making it to be a correct translation; and the certificate must contain a statement of that person’s full name, of his address and of his qualifications for making the translation.
(6) The party obtaining the order must, when he lodges in the Registry the documents mentioned in paragraphs (2) to (5), also file in the Registry an undertaking in Form 77 signed by him or his solicitor to be responsible personally for all expenses incurred by the Minister in respect of the letter of request and, on receiving due notification of the amount of those expenses, to pay that amount to the office of the said Minister and to produce a receipt for the payment to the proper officer of the Registry.
4. Enforcing attendance of witness at examination. (O. 39 r. 4)
Where an order has been made under rule 1–
(a) for the examination of any person before the Registrar or some other person (in this rule and rules 5 to 14 referred to as "the examiner"); or
(b) for the cross-examination before the examiner of any person who has made an affidavit which is to be used in any cause or matter,
the attendance of that person before the examiner and the production by him of any document at the examination may be enforced by writ of subpoena in like manner as the attendance of a witness and the production by a witness of a document at a trial may be enforced.
5. Refusal of witness to attend, be sworn, etc. (O. 39 r. 5)
(1) If any person, having been duly summoned by writ of subpoena to attend before the examiner, refuses or fails to attend or refuses to be sworn for the purpose of the examination or to answer any lawful question or produce any document therein, a certificate of his refusal or failure, signed by the examiner, must be filed in the Registry, and upon the filing of the certificate the party by whom the attendance of that person was required may apply to the Court for an order requiring that person to attend, or to be sworn or to answer any question or produce any document, as the case may be.
(2) An application for an order under this rule may be made ex parte.
(3) If the Court makes an order under this rule it may order the person against whom the order is made to pay any costs occasioned by his refusal or failure.
(4) A person who wilfully disobeys any order made against him under paragraph (1) is, guilty of contempt of Court.
6. Appointment of time and place for examination. (O. 39 r. 6)
(1) The examiner must give the party on whose application the order for examination was made a notice appointing the place and time at which, subject to any application by the parties, the examination shall be taken, and such time shall, having regard to the convenience of the persons to be examined and all the circumstances of the case, be as soon as practicable after the making of the order.
(2) The party to whom a notice under paragraph (1) is given must on receiving it, forthwith give notice of the appointment to all the other parties.
7. Examiner to have certain documents. (O. 39 r. 7)
The party on whose application the order for examination before the examiner was made must furnish the examiner with copies of such of the documents in the cause or matter as are necessary to inform the examiner of the questions at issue in the cause or matter.
8. Conduct of examination. (O. 39 r. 8)
(1) Subject to any directions contained in the order for examination–
(a) any person ordered to be examined before the examiner may be cross-examined and re-examined; and
(b) the examination, cross-examination and re-examination of persons before the examiner shall be conducted in like manner as at the trial of a cause or matter.
(2) The examiner may put any question to any person examined before him as to the meaning of any answer made by that person or as to any matter arising in the course of the examination.
(3) The examiner may, if necessary, adjourn the examination from time to time.
9. Examination of additional witnesses. (O. 39 r. 9)
The examiner may, with the written consent of all the parties to the cause or matter, take the examination of any person in addition to those named or provided for in the order for examination, and must annex such consent to the original deposition of that person.
10. Objection to questions (O. 39 r. 10)
(1) If any person being examined before the examiner objects to answer any questions put to him, or if objection is taken to any such question, that question, the ground for the objection and the answer to any such question to which objection is taken must be set out in the deposition of that person or in a statement annexed thereto.
(2) The validity of the ground for objecting to answer any such question or for objecting to any such question shall be decided by the Court and not by the examiner, but the examiner must state to the parties his opinion thereon, and the statement of his opinion must be set out in the deposition or in a statement annexed thereto.
(3) If the Court decides against the person taking the objection it may order him to pay the costs occasioned by his objection.
11. Taking of depositions. (O. 39 r. 11)
(1) The deposition of any person examined before the examiner must be taken down by the examiner or a shorthand writer or some other person in the presence of the examiner but, subject to paragraph (2) and rule 10(1), the deposition need not set out every question and answer so long as it contains as nearly as may be the statement of the person examined.
(2) The examiner may direct the exact words of any particular question and the answer thereto to be set out in the deposition if that question and answer appear to him to have special importance.
(3) The deposition of any person shall be read to him, and he shall be asked to sign it, in the presence of such of the parties as may attend, but the parties may agree in writing to dispense with the foregoing provision. If a person refuses to sign a deposition when asked under this paragraph to do so, the examiner must sign the deposition.
(4) The original deposition of any person, authenticated by the signature of the examiner before whom it was taken, must be sent by the examiner to the Registry and shall be filed therein.
12. Time taken by examination to be indorsed on depositions. (O. 39 r. 12)
Before sending any deposition to the Registry, the examiner must indorse on the deposition a statement signed by him of the time occupied in taking the examination and the fees to be paid in respect thereof.
13. Special report by examiner. (O. 39 r. 13)
The examiner may make a special report to the Court with regard to any examination taken before him and with regard to the absence or conduct of any person thereat, and the Court may direct such proceedings to be taken, or make such order, or the report as it thinks fit.
14. Order for payment of examiner’s fees. (O. 39 r. 14)
(1) If the fees and expenses due to an examiner are not paid he may report that fact to the Court, and the Court may make an order against the party on whose application the order for examination was made to pay the examiner the fees and expenses due to him in respect of the examination.
(2) An order under this rule shall not prejudice any determination on the taxation of costs or otherwise as to the party by whom the costs of the examination are ultimately to be borne.
15. Perpetuation of testimony. (O. 39 r. 15)
(1) Witnesses shall not be examined to perpetuate testimony unless an action has been begun for the purpose.
(2) Any person who would under the circumstances alleged by him to exist become entitled, upon the happening of any future event, to any honour, title, dignity or office, or to any estate or interest in any real or personal property, the right or claim to which cannot be brought to trial by him before the happening of such event, may begin an action to perpetuate any testimony which may be material for establishing such right or claim.
(3) No action to perpetuate the testimony of witnesses shall be set down for trial.

EVIDENCE: GENERAL

38. Evidence: General.
order 38
Evidence: General

1. General rule: Witnesses to be examined orally. (Act 56) (O. 38 r. 1)
Subject to the provisions of these rules and of the Evidence Act, 1950 and any other written law relating to evidence, any fact required to be proved at the trial of any action begun by writ by the evidence of witnesses shall be proved by the examination of the witnesses orally and in open Court.

2. Evidence by affidavit (O. 38 r. 2)
(1) The Court may, at or before the trial of an action begun by writ, order that the affidavit of any witness may be read at the trial if in the circumstances of the case it thinks it reasonable so to order.
(2) An order under paragraph (1) may be made on such terms as to the filing and giving of copies of the affidavits and as to the production of the deponents for cross-examination as the Court thinks fit but, subject to any such terms and to any subsequent order of the Court, the deponents shall not be subject to cross-examination and need not attend the trial for the purpose.
(3) In any cause or matter begun by originating summons, originating motion or petition, and on any application made by summons or motion, evidence may be given by affidavit unless in the case of any such cause, matter or application any provision of these rules otherwise provides or the Court otherwise directs, but the Court may, on the application of any party, order the attendance for cross-examination of the person making any such affidavit, and where, after such an order has been made, the person in question does not attend, his affidavit shall not be used as evidence without the leave of the Court.

3. Evidence by particular facts (O. 38 r. 3)
(1) Without prejudice to rule 2, the Court may, at or before the trial of any action, order that evidence of any particular fact shall be given at the trial in such manner as may be specified by the order.
(2) The power conferred by paragraph (1) extends in particular to ordering that evidence of any particular fact may be given at the trial–
(a) by statement on oath of information or belief; or
(b) by the production of documents or entries in books; or
(c) by copies of documents or entries in books; or
(d) in the case of a fact which is or was a matter of common knowledge either generally or in a particular place, by the production of a specified newspaper which contains a statement of that fact.

4. Limitation of expert evidence. (O. 38 r. 4)
The Court may, at or before the trial of any action, order that the number of medical or other expert witnesses who may be called at the trial shall be limited as specified by the order.

5. Limitation of plans, etc. in evidence. (O. 38 r. 5)
Unless, at or before the trial, the Court for special reasons otherwise orders, no plan, photograph or model shall be receivable in evidence at the trial of an action unless at least 10 days before the commencement of the trial the parties, other than the party producing it, have been given an opportunity to inspect it and to agree to the admission thereof without further proof.

6. Expert evidence in action arising out of accident. (O. 38 r. 6)
(1) In an action arising out of an accident on land due to a collision or apprehended collision, unless at or before the trial the Court otherwise orders, the oral expert evidence of an engineer sought to be called on account of his skill and knowledge as respects motor vehicles shall not be receivable in evidence at the trial unless a copy of a report from him containing the substance of this evidence has been made available to all parties for inspection before the hearing of the summons for directions and an order made on the summons for directions or an application thereunder authorizes the admission of the evidence.
(2) The references in this rule to the summons for directions include references to any summons or application to which, under any of these rules, Order 25, rules 2 to 7, are to apply, whether with or without modifications.

7. Revocation of variation of orders under rules 2 to 6. (O. 38 r. 7)
Any order under rules 2 to 6 (including an order made appeal) may, on sufficient cause being shown, be revoked or varied by a subsequent order of the Court made at or before the trial.

8. Application to trials of issues, references, etc. (O. 38 r. 8)
The foregoing rules of this Order shall apply to trials of issues or questions of fact or law, references, inquiries and assessments of damages as they apply to the trial of actions.

9. Depositions; when receivable in evidence at trial. (O. 38 r. 9)
(1) No deposition taken in any cause or matter shall be received in evidence at the trial of the cause or matter unless–
(a) the deposition was taken in pursuance of an Order under Order 39, rule 1; and
(b) either the party against whom the evidence is offered consents or it is proved to the satisfaction of the Court that the deponent is dead, or beyond the jurisdiction of the Court or unable from sickness or other infirmity to attend the trial.
(2) A party intending to use any deposition in evidence at the trial of a cause or matter must, a reasonable time before the trial, give notice of his intention to do so to the other party.
(3) A deposition purporting to be signed by the person before whom it was taken shall be received in evidence without proof of the signature being the signature of that person.

10. Court documents admissible or receivable in evidence. (O. 38 r. 10)
(1) Office copies of writs, records, pleadings and documents filed in the Registry shall be admissible in evidence in any cause or matter and between all parties to the same extent as the original would be admissible.
(2) Without prejudice to the provisions of any written law, every document purporting to be sealed with the seal of the High Court shall be received in evidence without further proof, and any document purporting to be so sealed and to be a copy of a document filed in, or issued out of, the High Court shall be deemed to be an office copy of that document without further proof unless the contrary is shown.

11. Evidence of consent of new trustee to act. (O. 38 r. 11)
A document purporting to contain the written consent of a person to act as trustee and to bear his signature verified by some other person shall be evidence of such consent.

12. Evidence at trial may be used in subsequent proceedings.(O. 38 r. 12)
Any evidence taken at the trial of any cause or matter may be used in any subsequent proceedings in that cause or matter.

13. Order to produce document at proceeding other than trial. (O. 38 r. 13)
(1) At any stage in a cause or matter the Court may order any person to attend any proceedings in the cause or matter and produce any document, to be specified or described in the order, the production of which appears to the Court to be necessary for the purpose of that proceeding.
(2) No person shall be compelled by an order under paragraph (1) to produce any document at a proceeding in a cause or matter which he could not be compelled to produce at the trial of that cause or matter.

14. Form and issue of writ of subpoena. (O. 38 r. 14)
(1) A writ of subpoena must be in Form 67, 68 or 69 whichever is appropriate.
(2) Issue of a writ of subpoena takes place upon its being sealed by an officer of the Registry.
(3) Before a writ of subpoena is issued a praecipe in Form 70 for the issue of the writ must be filed in the Registry; and the praecipe must contain the name and address of the party issuing the writ, if he is acting in person, or the name of firm and business address of that party’s solicitor.

15. More than one name may be included in one writ of subpoena ad testificandum (O. 38 r. 15)
The names of two or more persons may be included in one writ of subpoena ad testificandum.

16. Writ of subpoena duces tecum. (O. 38 r. 16)
(1) A writ of subpoena duces tecum must contain the name of one person only.
(2) Any person served with a writ of subpoena duces tecum shall sufficiently comply if he causes the document to be produced without attending personally.

17. Amendment of writ of subpoena. (O. 38 r. 17)
Where there is a mistake in any person’s name or address in a writ of subpoena, then if the writ has not been served, the party by whom the writ was issued may have the writ re-sealed in correct form by filing a second praecipe under rule 14(3) indorsed with the words "Amended and re-sealed".

18. Service of writ of subpoena. (O. 38 r. 18)
(1) Unless the Court otherwise orders, a writ of subpoena must be served personally and the service shall not be valid unless effected within 12 weeks after the date of issue of the writ.
(2) A writ of subpoena shall not be served on any person outside the jurisdiction.

19. Duration of writ of subpoena. (O. 38 r. 19)
A writ of subpoena continues to have effect until the conclusion of the trial at which the attendance of the witness is required.

20. Court records. (O. 38 r. 20)
(1) An officer of the High Court or of any Subordinate Court shall not be required by a writ of subpoena duces tecum to produce the records of the Court.
(2) If the original of any record of a Court or of any document filed in such Court is for any special reason required, a request for production thereof may, on the application of the party requiring the same, be addressed by the Registrar to that Court.
(3) No mark shall be placed upon any record or document produced under this rule.

21. Attendance of prisoner as witness or party. (81/52) (O. 38 r. 21)
(1) An application for an order under section 30 of the Prisons Ordinance for the production before the Court of a person confined in prison may be made ex parte by summons supported by an affidavit in Form 71.
(2) Unless the Court otherwise orders, the costs of conveyance of the witness in safe custody to and from the Court must be paid in the first instance by the party on whose application the order was issued and shall be costs in the cause.
(3) An order for the production of such person must be in Form 72.

22. Tender of expenses. (O. 38 r. 22)
A witness shall not be compelled to attend on a writ of subpoena unless a reasonable sum to cover his expenses of going to, remaining at, and returning from, Court is extended to him.

23. Affidavit of service of writ of subpoena. (O. 38 r. 23)
An affidavit filed for the purpose of proving the service of a writ of subpoena must state when, where, how and by whom the service was effected.