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Syariah Court Civil Procedure Enactment 2004 is Malaysia State Enactment, cited as State Enactment 2004 2004, currently marked in force and first recorded in 2004.
This Enactment shall have effect in all civil proceedings commenced in any Syariah
Court except as otherwise provided under any other written law or ordered by the Court.
TUN DATUK SERI PANGLIMA HAJI AHMADSHAH BIN ABDULLAH,
Yang di-Pertua Negeri.
30TH AUGUST, 2004.
No. 10 of 2004
An Enactment to make provisions relating to civil procedure for the Syariah Courts.
ENACTED by the Legislature of the State of Sabah as follows:
Part I
Short title and commencement
This Enactment shall come into force on a date to be appointed by the State
Authority by notification in the Gazette. [01.06.2005 G.N. 315/2005]
Application
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Interpretation
In this Enactment, unless the context otherwise requires –
"bailiff” includes the Registrar or any clerk or officer of the Court charged with performing the duties of a bailiff;
"certified translation" means a translation of any document certified as correct by an officer of the Court or by any other person accepted by the Court;
"Court Enactment" means the Syariah Court Enactment 2024;
"Court" or "Syariah Court" has the meaning assigned thereto in the Court
Enactment;
"day of appearance" means the day appointed in any summons or other proceedings for the appearance of the defendant or any other day for hearing of the proceedings;
"form" means a form set out in the Third Schedule, and a form referred to by a number means the form so numbered in that Schedule;
"Hukum Syarak" means Hukum Syarak according to Mazhab Syafie or any one of Mazhab Hanafi, Maliki, or Hanbali;
"Judge" or "Syar'ie Judge" means the Chief Syar'ie Judge, a Judge of the Syariah
High Court or a Judge of the Syariah Subordinate Court, as the case may be, appointed under the Court Enactment;
"judgment" includes grounds of judgment;
"judgment creditor" means person having the right to enforce judgment for payment of money either by instalment or otherwise;
"judgment debtor" means a person liable under any judgment for payment of money;
"lien" means a right on the property of a judgment debtor to the extent of the indebtedness;
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"Majlis" has the meaning assigned thereto in the Court Enactment;
"minor" means a person who has not attained the age of eighteen years;
"notice" means written notice unless the Court in any case shall order otherwise;
"person under disability" includes an infant, a person of unsound mind and a person prohibited from administering his property;
"prescribed" means prescribed by rules made under this Enactment;
"Registrar" means the Chief Registrar or Deputy Chief Registrar of the Syariah
Supreme Court, the Registrar or Deputy Registrar of the Syariah Appeal Court, the Registrar or Deputy Registrar of the Syariah High Court or the Assistant
Registrar of the Syariah Subordinate Court, as the case may be, appointed under the Court Enactment;
"Syar'ie Lawyer" has the meaning assigned thereto in the Court Enactment;
All words and expressions used in this Enactment and not herein defined but defined in Part I of the Interpretation and General Clauses Enactment 1963 shall have the meanings assigned thereto in that Part to the extent that such meanings do not conflict with
Hukum Syarak.
For the avoidance of doubt as to the identity or interpretation of words and expressions used in this Enactment that are listed in the First Schedule, reference may be made to the Arabic script for those words and expressions as shown against them therein.
General title of form
Every document, including form, filed in Court shall bear the general title as in Form MS
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Part II
Non-compliance
Non-compliance with any provisions of this Enactment or any rules made thereunder shall not render any proceedings void unless the Court shall so order, but the Court may, of its own motion or on the application of any party, set a side any proceedings wholly or in part as irregular, or order such amendments to be made on such terms as it thinks just.
Application to set aside for irregularity
Any application to set aside for irregularity any proceedings, step taken in any proceedings or any document, judgment or order therein shall not be allowed unless it is made within a reasonable time and before the party applying has taken a fresh step after becoming aware of the irregularity.
Part III
Chapter
Subject to subsection (2) or any other written law, every civil proceeding in a Court shall be begun by summons.
All proceedings in respect of any of the matters specified in the Second
Schedule shall be begun by application.
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Chapter
Form of summons
Every summons –
shall be accompanied by a statement of claim which shall comply with the requirements of section 63.
Copies of summons
Every summons against a single defendant shall be presented for filing in triplicate and an additional copy shall be presented for every additional defendant.
Issue and service
The Registrar shall examine the summons and –
if the plaintiff has paid the prescribed fees, including the fees for service by
Court is required, the Registrar shall assign a serial number thereto, seal, sign and issue it.
If the Registrar is of the opinion that the summons is not in proper form, he may reject it or direct that it be amended.
Time of service
For the purpose of service, each summons shall be valid in the first instance for twelve months beginning with the date of its issue.
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Where a summons has not been served on a defendant within the period specified in subsection (1), an application may be made to the Court to extend the validity of the summons before the expiry date or such later day, if any, as the Court may allow.
The Court may by order extend the validity of the summons from time to time for such period, not exceeding twelve months at any one time, beginning with the day next following that on which it but for the extension would otherwise expire.
Lost of summons
If a summons is lost after issue, the Court may order a new summons to be issued bearing the date of, and having the like effect as, the original summons.
Chapter
Form of application
Save as hereinafter provided, every application shall be made by notice in Form MS
3 and supported by an affidavit sworn in accordance with this Enactment.
Every application shall state in full the nature of the order applied for, and in sufficient detail the facts relied upon in support thereof, and unless the Court otherwise orders, shall be served on all parties and persons interested therein.
In an application, the objector shall be referred to as the respondent.
Application of sections 9, 10, 11 and 12
Sections 9, 10, 11 and 12 shall apply, with such modifications as may be necessary, in relation to an application as they apply in relation to summons.
Application for divorce
Notwithstanding anything in this Part, an application for divorce shall be made in accordance with the procedures laid down in the Islamic Family Law Enactment 2004 and further proceeding in respect thereof shall be conducted in accordance with that Enactment.
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Chapter
Notwithstanding anything in this Enactment, the court may, in its discretion, allow any claim or defence to be made orally:
Provided that in such a case the Court shall record the particulars of the claim or defence having regard to the requirements of this Enactment relating to summons or applications, as the case may be.
The Court shall serve a copy of the record made under subsection (1) on the party for whom the particulars of the claim or defence, as the case may be, is recorded.
On receipt of the record referred to in subsection (2), the party on whom it is served shall –
certify the particulars contained therein by setting down his signature or affixing his right thumb-print on the record;
prepare sufficient copies of the record so that one copy can be served on each of the other parties to the proceedings; and
serve one copy of the record to every such party at least fourteen days before the day of appearance.
Where the Court allows a claim or defence to be made in accordance with subsection (1), it shall impose such fees as may be prescribed in addition to any other fees payable under this Enactment.
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Part IV
In this Part "plaintiff” includes an applicant and "defendant" includes a respondent.
Joinder of parties
Two or more persons may be joined together in one action as plaintiffs or as defendants with the leave of the court or where –
separate actions were brought by or against each of them, as the case may be, and some common question of law or fact would arise in all the actions;
and
all rights to relief claimed in the action, whether they are joint, several or in the alternative, are in respect of or arise out of the same transaction or series of transactions.
Notwithstanding subsection (1), if it appears to the Court that any joinder may embarrass any defendant or delay the trial or be otherwise inconvenient, the Court may, on its own motion or on the application of the defendant, order separate trials or make such other orders as it thinks fit.
Judgment may be given without any amendment to any plaintiff for the relief to which he is entitled, or against such one or more of the defendants as may be found liable according to their respective liabilities.
Changes of parties
Subject to subsection (2), the Court may, on its own motion or on the application of any parties at any stage of the proceedings, strike out, substitute or add any party in such manner and upon such terms as may be just and proper.
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No person shall be made plaintiff without his consent or, if under disability, the consent of his representatives which shall be signified in writing or in such other manner as may be authorized.
Misjoinder or nonjoinder of parties
Subject to subsection (2), at any stage of the proceedings in any cause or matter the Court may, as it thinks just and either of its own motion or on application –
order any party who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party; or
order any party who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon to be added as a party.
No person shall be added as a plaintiff without his consent which shall be signified in writing or in such other manner as may be authorized.
Amendment and services
Where any change of parties occur during the pendency of any proceedings –
any person added or substituted as a defendant shall be served with the documents of the proceedings unless he consents to waive the service.
The proceedings against the person referred to in paragraph (1) (b) shall be deemed to have begun upon the date of such service of waiver, as the case may be.
Abatement of action
In the case of marriage, death or bankruptcy of any party –
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if the cause of action does not survive in accordance with Hukum Syarak, the proceedings shall abate, except as provided in paragraph (c);
if the cause of action survives or continues in accordance with Hukum Syarak, the proceedings shall not abate or become defective; or
in case of death after the conclusion of the trial but before judgment is delivered or entered, the proceedings shall not abate, and judgment may be delivered-or entered.
Devolution of interest
In the case of any assignment, creation, change, transmission or devolution of the interest, estate, title or liability of any party, between the commencement of any proceedings and judgment therein, the person to or upon whom the interest, estate, title or liability has come or devolved may apply to be added as a party or to be made a party in substitution for some other party, and the plaintiff may in like manner apply for such addition or substitution, if the party concerned was a defendant.
Notice of any application under subsection (1) shall be served on all parties.
Where an application should be made under subsection (1) and is not made within a reasonable period, the Court may, of its own motion or on the application of any party, order the party or person concerned to make the application within a stated time, and in default may strike out or dismiss the proceedings, or order that the party or person concerned be precluded from defending, as the case may be.
Where any of the matters referred to in subsection (1) has occurred after judgment and there is money in Court to the credit of the proceedings, the Court may order any person or persons to be served with any application for an order for payment out of Court.
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Person under disability
Any person under disability may sue or be sued by his guardian ad litem duly approved by the Court.
Consent on behalf of person under disability
A consent or waiver which is given on behalf of a person under disability by his guardian ad litem with the approval of the Court shall be binding on the person under disability.
General provisions as to disability
Where a plaintiff is a person under disability –
all money or other property recovered for the plaintiff in, or in consequence of, the action shall be paid into Court or deposited in Court unless the Court otherwise orders.
Irregular proceedings
Any proceedings taken by or against a person under disability otherwise than in accordance with this Enactment or Hukum Syarak shall be dismissed and any judgment or order made therein may be set aside.
Removal of guardian ad litem
The Court may for sufficient reason in accordance with Hukum Syarak remove any guardian ad litem and replace him by another, being a fit and proper person and willing to act.
The Court may appoint one of its officers to be a guardian ad litem.
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Minor plaintiff attaining majority
A minor plaintiff shall, on attaining majority during the pendency of any proceedings, either withdraw the proceedings before taking any step therein or adopt the proceedings.
No leave to withdraw shall be required, but Part XIII shall apply as regards to the matters.
If the minor plaintiff withdraws his claim, he shall not be personally liable for costs, unless the Court otherwise orders.
Where there are more than one plaintiff, the minor plaintiff shall not be entitled to withdraw without leave of Court but may apply to the Court to remove his name or, if he is a necessary party in the proceedings, delete his name as plaintiff and make him as defendant;
on such terms as the Court may specify.
If the proceedings are continued, the minor plaintiff shall apply to amend the title of the proceedings and the Court may amend the title and release his guardian ad litem.
Minor defendant attaining majority
Where a minor defendant attains majority during the pendency of any proceedings, either he or his guardian ad litem may file an affidavit in proof of such majority and thereupon the title of the proceedings shall be amended, and the guardian ad litem shall be discharged, subject to any questions of costs occasioned by his negligence or misconduct.
Application to sue or defend as a poor person
Any person who desires to commence or defend any action or other proceedings in his own right, and is unable to pay the Court fees therefore, may apply to the Court for leave to sue or defend as a poor person.
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An application under subsection (1) shall be made in Form MS 4 and supported by an affidavit containing the following particulars:
The affidavit shall be prepared by the applicant or by an officer of the appropriate
Court and shall be verified in the presence of a Judge or Registrar.
Where the Court is satisfied –
that the applicant has a good cause of action or defence, as the case may be, the Court shall make an order admitting the applicant (hereinafter called the "poor person") to sue or defend, as the case may be, as a poor person.
Where an order is made under subsection (4), the summons and other process in the action or other proceedings and the relevant entry in the cause book shall be marked "orang miskin".
Where the Court is not so satisfied it shall dismiss the application and there shall be no appeal against the dismissal.
Poor person not to discontinue, etc. without leave
The poor person shall not discontinue, settle or compromise the action or other proceedings without the leave of the Court.
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Costs
Unless the Court otherwise orders, no poor person shall be liable to pay costs to any party, or be entitled to receive from any other party any costs other than the actual expenses incurred in the course of the proceedings.
Part V
Wakalah Syar'ie Lawyer
The wakalah of a Syar'ie Lawyer shall be pronounced by the person who appoints, and accepted by the Syar'ie Lawyer so appointed, before the Court or the Registrar.
Where a Syar'ie Lawyer has accepted his appointment under subsection (1), he shall, before taking any step in the proceedings, file a wakalah in Form MS 5.
Service on Syar'ie Lawyer
Where a Syar'ie Lawyer represents more than one party in any proceedings, service of a single copy of any proceedings, service of a single copy of any document on the Syar'ie
Lawyer shall be sufficient service on all such parties.
Change of Syar'ie Lawyer
Where a party desires to change his Syar'ie Lawyer, he shall file a notice of change in Form MS 6 and serve a copy of the notice on all parties.
Section 34 shall apply in relation to a change of Syar'ie Lawyer as it applies in relation to the appointment of the Syar'ie Lawyer.
Discharge of Syar'ie Lawyer
Where a party desires to discharge his Syar'ie Lawyer, he shall file a notice of change in Form MS 7 and serve a copy of the notice on all parties.
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Discharge on application of Syar'ie Lawyer
Where a Syar'ie Lawyer representing a party applies to be discharged, he shall file a notice of withdrawal in Form MS 8 and serve a copy of the notice on the party he represented.
Death
The wakalah of a Syar'ie Lawyer shall determine on the death of the Syar'ie Lawyer or the party he represented.
Part VI
Address for service
Subject to subsection (2), every plaintiff or applicant and every person filing a summons or other documents in any proceedings, other than an officer of a Court acting as such, and any other person ordered by the Court so to do shall give an address for service in the State of Sabah.
Where any such plaintiff, applicant or other person is represented by a Syar'ie
Lawyer, the address of the Syar'ie Lawyer shall be the address for service.
Mode of service
Subject to this Part, a summons or other documents shall be served personally, and shall be effected by delivering the summons or other documents, or by producing it for inspection and delivering a copy of the summons or other documents, to the person to be served.
For the purpose of subsection (1), a copy bearing the seal of the Court and the signature of the Registrar shall be deemed to be an original summons or document.
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Service of a summons or other document shall be effected by an officer of the
Court or any other person.
Non-acceptance
Where the person required to be served with a summons or other document refuses to accept the summons, document or copy thereof, it may be left near him and his attention shall be directed to it.
Service on Syar'ie Lawyer
A summons or other document may be served on the Syar'ie Lawyer of any party who has filed a memorandum of appointment in accordance with section 34 except as otherwise provided by this Enactment.
Service at address for service
A summons or other document delivered at the address for service of any person shall be deemed to be served on that person.
Day of appearance
A summons commencing an action shall be served not less than seven clear days before the day of appearance unless the Court otherwise orders.
Subject to this Enactment or any other written law, notice of all other proceedings shall be two clear days' notice unless the Court otherwise orders.
The day of appearance may be altered by the Registrar, where necessary.
Place and time of service
Service may be effected at any place, on any day at any time of the day or night.
Service after 4.00 p.m. shall ordinarily be deemed to have been effected on the following day.
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Service effected after 12.00 noon on the day preceding, or at any time on, the weekly holiday or at any time on any public holiday, shall be deemed to have been effected on the day following such holiday.
Special cases
Service on a person under disability shall be made on his guardian ad litem, if any.
Notwithstanding subsection (1), the Court may, on application, order the service on a person under disability to be made on any other person.
Service on a person in prison shall be made on the officer-in-charge of the prison, who shall cause the summons or other document to be transmitted to that person.
Service on any member of the Armed Forces shall be made on the commanding officer or adjutant of his unit, who shall cause the summons or other document to be transmitted to that member.
Substituted service
Where the Court is satisfied that for any sufficient reason the summons or other document cannot be served in the ordinary way, the Court may order the summons or other document to be served by affixing a copy thereof on the Court's notice board and also on some conspicuous part of the building in which the party to be served is known to have last resided, or in any other manner as the Court thinks fit.
The Court may also, in any case falling within subsection (1), make an order for service by advertisement in such local newspaper or newspapers as the Court may think fit.
In cases of substituted service the Court shall, where necessary, fix the time for the appearance in Court of the relevant party.
No order for substituted service shall be made in respect of –
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any document initiating proceedings for the arrest or committal of any person.
Any application for an order under this section shall be supported by an affidavit stating the facts on which the application is founded.
Proof of service
Service of summons or other document may, unless the Court otherwise orders, be proved by affidavit of the person who effected service and, where the service was personal and the person served was not personally known to him, by the affidavit of the person who identified the person to be served.
The person served shall sign an acknowledgement of service, but refusal or inability so to sign shall not affect the validity of the service.
Variation of orders
An order for service, or for substituted service, may be varied by the Court.
Issue of warrant in lieu of or in addition to summons
A Court may, in any case in which it is empowered to issue a summons for the appearance of any person, after recording its reasons, issue a warrant for his arrest if –
either before or after the issue of the summons but before the time fixed for his appearance, the court sees reason to believe that he has absconded or will not obey the summons; or
at such time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure.
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When allowed
The Court may order service of a summons or an application out of the jurisdiction if –
the whole subject matter of the action relates to immovable property situated within the State of Sabah;
any relief is sought against any person domiciled or ordinarily residing or carrying on business within the State of Sabah;
the action being properly brought against a person duly served within the
State of Sabah, a person out of the State of Sabah, is a necessary or proper party thereto; or
in any case arising from marriage, the residence of one of the parties to the marriage is at the time of the application within the State of Sabah.
Subject to section 54, any order giving leave to effect service out of the jurisdiction shall direct in what mode the service is to be effected and how such service may be proved.
Form of order
An order for service out of the jurisdiction shall fix the day of appearance of the person to be served and the Court shall have regard to and may require evidence as to means of communication and transport.
Mode of service out of jurisdiction within Malaysia
Any summons or application for service out of the jurisdiction within Malaysia may be sent to any Court having jurisdiction in the local area in which the person to be served is said to be.
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The summons or application to be served may be sent by post or otherwise with a written request for service signed by the Judge or the Registrar.
Variation order
An order for service out of the jurisdiction may be varied by the Court.
Part VII
Entitlement to relief by way of interpleader
Where –
a person is under a liability in respect of any debt or in respect of any money, goods or other movable property and he is, or expects to be, sued for or in respect of such debt, money, goods or property by two or more persons making adverse claims in respect thereof; or
claim is made to any money, goods or other movable property taken or intended to be taken by a bailiff in execution under any judgment, or to the proceeds or value of any such goods or property by a person other than the person against whom the judgment is issued, the person under liability or the bailiff may apply to the Court for relief by way of interpleader.
Claim to goods, etc. taken in execution
Any person making a claim to or in respect of any money, goods or other movable property taken or intended to be taken in execution of any judgment, or to the proceeds or value of any such goods or property, shall give notice in Form MS 9 of his claim to the bailiff charged with the execution of the judgment and shall include in his notice a statement of his address, and that address shall be his address for service.
On receipt of a claim made under this section, the bailiff shall forthwith give notice of such claim in Form MS 10 to the execution creditor and the execution creditor shall,
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within four days after receiving the notice, give notice in Form MS 11 to the bailiff informing him whether he admits or disputes the claim.
Where –
disputing the claim, or the execution creditor fails, within the period mentioned in that subsection, to give the required notice; and
the claim made under this section is not withdrawn, the bailiff may apply to the Court for relief under this Part.
A bailiff who receives a notice from an execution creditor under subsection (2)
admitting a claim made under this section shall withdraw from possession of the money, goods or other movable property claimed.
Mode of application
An application for relief under this Part shall be made by summons in Form MS
12 or MS 13, whichever is appropriate.
Subject to subsection (3), a summons under this section shall be supported by an affidavit stating that the applicant –
claims no interest in the subject matter in dispute other than for charges or costs;
is willing to pay or transfer that subject matter into Court or to dispose of it as the Court may direct.
Where the applicant is a bailiff, he shall not provide such affidavit as is referred to in subsection (2) unless the Court otherwise orders.
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Service of summons
Unless the Court otherwise orders, the summons referred to in section 58 shall be served personally at least seven days before the day of appearance.
An interpleader summons shall be in one of the forms in Form MS 14.
Power of Court hearing summons
Where on the hearing of a summons under this Part all the persons by whom adverse claims to the subject matter in dispute (hereinafter in this Part referred to as the "claimants")
appear, the Court may order –
that any claimant be made a defendant in any action pending with respect to the subject matter in dispute in substitution for or in addition to the applicant for relief under this Part; or
that an issue between the claimants be stated and tried and may direct which of the claimants is to be the plaintiff and which defendant.
Where –
the question at issue between the claimants is a question of law and the facts are not in dispute, the Court may summarily determine the question at issue between the claimants and make an order accordingly on such terms as it thinks just.
Other powers
Subject to this Part, the Court may in or for the purposes of any interpleader proceedings make such order as to costs or any other matter as it thinks just.
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Part VIII
Statement of claim
Part XV shall, with such modifications as may be necessary, apply in relation to an interpleader issue as that Part applies in relation to any other cause or matter.
The Court by whom an interpleader issue is tried may give such judgment or make such order as finally to dispose of all questions arising in the interpleader proceedings.
Defendant to serve defence
A defendant who disputes his liability for the whole or part of any claim in the action may –
at any time before the day of appearance, serve on the plaintiff a defence;
or
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Form of defence of substance.
Counterclaim
Every counterclaim shall contain the like matter and particulars as a statementof claim and shall be signed by the defendant or his Syar'ie Lawyer.
A counterclaim shall not be made against any person not then a party to the action, but if a cross action is brought, an order for consolidation may be made by the Court.
Where a defendant appears in Court and disputes the plaintiff's claim, the Court may order him to serve a defence within such time as it may direct.
–
Every defence shall be signed by the defendant or his Syar'ie Lawyer and shall
either admit or deny every material allegation of the fact in the statement of claim;
state concisely any new facts on which the defendant relies by way of defence; and
A denial under paragraph (1)(a) shall not be evasive but shall answer the point
Defence to counterclaim
Where any defendant counterclaims, the plaintiff shall, if he desires to defendthe counterclaim file and cause to be served on the defendant a defence to the counterclaim within such time as the Court shall direct.
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If the plaintiff fails to comply with subsection (1), section 16 shall apply as if the plaintiff were a defendant.
Defence of tender
If a defence of tender before action is raised, the defendant shall, on filing his defence, pay into Court the amount alleged to have been tendered.
Reply
The Court may, for sufficient reason, grant leave to file and deliver a reply to a defence, whether such defence is a defence against a claim or counterclaim.
Refusal to accept pleading and amendment
The court may refuse to accept or may return for amendment any pleading which does not comply with the requirements of this Part.
Particulars
If any pleading does not contain sufficient particulars, the Court may, of its own motion or on the application of any party, order the party responsible to file and cause to be served further and better particulars, and may stay all proceedings pending compliance.
Further and better particulars may be filed and served on request without order.
Every statement of claim shall be signed by the plaintiff or his Syar'ie Lawyer and shall contain –
a concise statement, in numbered paragraphs, of the fact relied on by the plaintiff and indicating his cause of action, including particulars of any special capacity in which the plaintiff sues, if any;
sufficient particulars of the claim;
a statement of the relief claimed; and particulars of any other applications.
Where more than one cause of action is relied on, the grounds of each and the relief claimed thereon shall be stated separately.
Trial of interpleader issue
Part IX
Payment into Court
A defendant may pay money into Court in satisfaction of the claim or any part thereof and may also pay into Court a sum of money in respect of costs.
The defendant shall give notice to the plaintiff of the payment into Court and, where the payment is less than the amount claimed, the notice shall state in respect of what the payment is made.
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Payment out of Court
Subject to sections 26 and 78, where the payment into Court is of the amount claimed or the plaintiff elects to take it in satisfaction of the whole of his claim, the amount shall be paid out to him, and he may obtain judgment for all costs actually incurred prior to his receiving notice of the payment into Court, and costs of entering judgment for such costs, unless paid without order.
Part satisfaction
Where the payment referred to in section 73 is in respect of a part of his claim, the plaintiff may continue the action in respect of the other part.
Order for payment out of Court
Except as otherwise provided in sections 73 and 74, money paid into Court shall not be paid out without the order of the Court.
Costs
Where money has been paid into Court and the plaintiff fails to obtain judgment for any larger amount, the costs incurred by the defendant after the payment into Court shall be paid by the plaintiff.
Other relief
Where the plaintiff seeks relief other than the payment of money, he may continue his action for that other relief, notwithstanding the payment out of Court to him of any money.
Tender
Where payment into Court is made with a defence of tender and is accepted, the defendant shall be entitled to full costs of the action and the money in Court shall not be paid out without order of the Court.
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Counterclaims
This Part shall, with such modifications as may be necessary, apply to counterclaims.
Part X
Amendment of summons or pleading
Subject to this Part, the Court may, at any stage of the proceedings, allow the plaintiff to amend his summons, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner, if any, as it may direct.
Where an application to the Court for leave to make the amendment referred to in subsection (1) is made after any relevant period of limitation current at the date of issue of the summons has expired, the Court may, if it thinks just, grant such leave on such terms as it thinks fit.
Subject to subsection (2), any party to any proceedings may amend his pleading at any time before service to the other party without order of the Court.
Amendment to application
Section 80 shall, with such modifications as may be necessary, apply in relation to an application as it applies in relation to summonses and pleadings.
Defective proceedings
The Court may at any time, on its own motion or on the application of any party, and on such terms as it thinks just, order amendment to be made for the purpose of –
determining the real question in controversy or to achieve justice between the parties.
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Mode of amendment
An amendment shall be made by filing a fair copy of the amended document, which shall indicate the amendment made, and serving a copy of the amended document on the other party or parties:
Provided that if the amendment is ordered during the trial or hearing of any action or proceedings, or if all parties are present when the amendment is made, the Court may in its discretion amend the document in the Court's file and service on the parties shall not be necessary.
Slip or omission
Clerical mistakes or errors arising from accidental slips or omissions may at any time be corrected by the Court without formality.
Part XI
Discovery of documents and facts
The Court may, where necessary and upon such terms as it thinks just, order any party –
to state on oath, orally or by affidavit what document he has or has had in his possession or power relating to the matters in question, or whether he has or has had in his possession or power any specified document or documents or class of documents and, in either case, the present whereabouts of any documents formerly, but not now, in his possession or power; or
If the party is a body, whether incorporated or otherwise, an officer of that body may be ordered to comply with the order or direction of the Court in respect of discovery of any documents.
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The Court may stay the proceedings pending compliance of the order or direction of the Court under this section.
Inspection of documents
Any party shall be entitled to inspect and copy any document in the possession or power of another party and referred to in any pleading, affidavit or other documents filed by him in the proceedings or on oral examination under section 85.
Privileged communications and documents
Production and inspection of documents under this Part shall be subject to the provisions of any law relating to privileged communications and documents.
No appeal against the order
There shall be no appeal against any order of the Court under this Part except in an appeal against the judgment of the case as a whole.
Part XII
Transfer of proceedings to another Court
Where the Judge of any Court is satisfied that any proceedings in that Court can be more conveniently or fairly tried in some other Court, he may order the proceedings to be transferred to the other Court.
Any transfer of any proceedings under subsection (1) may be made by the
Judge of his own motion or on the application of any party by notice.
Procedure on transfer
Where an order is made for the transfer of any proceedings from one Court to another
Court, the Court from which the proceedings are transferred shall send to the Court
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to which the proceedings are transferred the file, all documents, exhibits and certified copies of the notes of evidence of the proceedings, if any.
The Court to which the proceedings are transferred may, of its own motion or on the application of any party, give such directions as to the further conduct of the proceedings as it may think fit.
Costs on transfer
Where an order for transfer is made on the application of a party, the costs incurred shall be at the discretion of the Judge.
Procedure on transfer from Syariah High Court to Syariah Subordinate Court
Where by an order of the Syariah High Court any proceedings are ordered to be transferred to a Syariah Subordinate Court, or an issue is directed to be tried in such a Court, the Registrar shall, on receipt of the order or certified copies of the order, enter the proceedings in the appropriate Register of Cases, and give notice in Form MS 17 at least fourteen days before the day of appearance, to every party to appear before the court for such directions as to the further conduct of the proceedings.
Subject to any directions contained in the order of the Syariah High Court, the trial shall proceed as if the proceedings had commenced in a Syariah Subordinate Court.
Procedure on transfer from Syariah Subordinate Court to Syariah High Court
Where an order is made by the Syariah High Court for the transfer of any proceedings from a Syariah Subordinate Court to the Syariah High Court, the Registrar of the Syariah
Subordinate Court shall send to the Registrar of the Syariah High Court the file of the proceedings, all documents, exhibits and certified copies of the notes of evidence, if any, and the Registrar shall give notice of the transfer in Form MS 18 to every party to the action.
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Part XIII
Settlement of action
Where by agreement of the parties an action has been settled, the Court may at any time, by consent of the parties, record the fact of such settlement with the terms thereof, and the record of the settlement shall afford a defence by way of res judicata to subsequent proceedings from the same, or substantially the same, cause of action.
Withdrawal of claim
The plaintiff may, with leave of the Court, at any time before judgment withdraw any proceedings wholly or in part by giving notice in Form MS 19 to the Court and serving a copy of the notice to the defendant.
Where the plaintiff withdraws any proceedings under subsection (1), the defendant shall be entitled to the costs of the proceedings.
Effect of withdrawal on future proceedings
Where the plaintiff has withdrawn the proceedings under section 95, he shall not thereafter bring an action for the same, or substantially the same, cause of action unless the
Court has granted leave to institute fresh proceedings.
Stay
Where the plaintiff has withdrawn any proceedings under section 95 and he is liable to pay any other party's costs of the action, then, if before payment of such costs he subsequently brings an action for the same, or substantially the same, cause of action, the Court may order the proceedings in that action to be stayed until such costs are paid.
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Withdrawal of defence
A defendant may at any time by giving notice to the plaintiff withdraw his defence or any part thereof and shall, in such event, be precluded from defending the proceedings or any part thereof, as the case may be.
Sulh
The Court may, at any stage of proceedings, hold sulh to resolve the dispute between the parties in accordance with such rules as may be prescribed or, in the absence of such rules, in accordance with Hukum Syarak.
Part XIV
Subject to this Enactment and the Syariah Court Evidence Enactment 2004, any fact required to be proved at the trial of any proceedings by the evidence of parties or witnesses shall be proved by the examination of the parties or witnesses orally in open Court.
Evidence by affidavit
The Court may, at or before the trial of any proceedings, order that the affidavit of any witness to be read at the trial if in the circumstances of the case it thinks it reasonable so to order.
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Request for issue of subpoena
Issue of a subpoena takes place upon it being sealed by an officer of the Court.
A subpoena shall be in one of the forms in Form MS 21, MS 22 or MS 23, as the case may require.
Numbers of person in subpoena
A subpoena to produce documents or things shall contain the name of one person only.
Subpoena to produce documents
Any person served with a subpoena to produce a document or thing only shall sufficiently comply if he causes the document or thing to be produced without attending personally.
Amendment of subpoena
Where there is a mistake in any person's name and address in a subpoena, and if the subpoena has not been served, the party on whose request the subpoena was issued may by filing a second request under subsection 102(1) have the subpoena re-sealed in the correct form endorsed with the words "Amended and re-sealed".
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Service of subpoena
Unless the Court otherwise orders, a subpoena shall be served personally and the service shall not be valid unless effected within twelve weeks after the date of issue of the subpoena.
Duration of subpoena
A subpoena continues to have effect until the conclusion of the hearing at which the attendance of the witness is required.
Court records
If the original of any record of a Court or any document filed in such Court is for any special reason required, a request for the production thereof may, on the application of the party requiring it, be addressed by the Registrar to that Court.
No mark must be placed upon any record or document produced under this section.
Attendance of prisoner as witness or party
Unless the court otherwise orders, the costs of conveying of the witness in safe custody to and from the Court shall be paid in the first instance by the party on whose application the order was issued and shall be costs in the cause.
An order by the Court for the production of such person shall be in From MS 25.
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Tender of expenses
A witness shall not be compelled to attend on a subpoena unless a reasonable sum to cover his expenses of going to, remaining at, and returning from, the Court is tendered to him.
Notwithstanding subsection (1), the Court may, in its discretion, accept an affidavit notwithstanding any irregularity in the form thereof.
Affidavit of service of subpoena
An affidavit filed for the purpose of proving the service of a subpoena shall state when, where, how and by whom service was effected.
Making of affidavit
An affidavit to be used in any proceedings in Court shall be sworn –
in State of Sabah, before any Syar'ie Judge or Registrar;
in a State of Malaysia, before the Syar'ie Judge or Registrar, as the case may require; and at any place outside Malaysia, before any Muslim officer of the Malaysian
Embassy or, High Commission, or Consulate or permanent Mission, thereat authorized to administer oath.
Form of affidavit
(1)
An affidavit shall be in Form MS 26.
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Copy of document shall be annexed to the affidavit
An exhibit to an affidavit shall be identified by a certificate of the person before whom the affidavit is sworn, and such certificate shall be in Form MS 27.
Rejection of affidavit
The Court may in its discretion reject any affidavit the content of which cannot be easily read or understood, or in which there is any interlineations, alteration or erasure or other defect of form.
Amendment
Any amendment made under subsection (1) shall be made by way of corrective affidavit and shall be filed before the trial.
There shall be no appeal against the refusal of the Court to grant leave under subsection (1), except in an appeal against the decision of the case as a whole.
Cross-examination
The Court may of its own motion require the attendance of any deponent for examination on his affidavit and, in the absence of such attendance, may reject or disregard the affidavit.
Part XV
Hearing in Court
Notwithstanding subsection (1), any proceeding may, in the interest of justice, be heard and determined through remote communication technology from any place.
For the purpose of subsection (1), the parties shall be in their respective places as approved by the Court and shall be deemed to be heard and determined within the jurisdiction of such Court.
In this section, “place” includes cyber space, virtual space or virtual place.
Appearance
Appearance of a person under disability shall be through his guardian ad litem.
Absence of parties
the defendant does not appear, the Court may, subject to proof of due service, hear and determine the action in his absence; or
the plaintiff does not appear, the Court may dismiss the action and hear and determine any counterclaim.
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The Court shall, before making any judgment on the plaintiff's claim under paragraph (1) (b) or the defendant's counterclaim under paragraph (1) (c), order the plaintiff or the defendant, as the case may be, to take an oath of istizhar.
Where there are more than one plaintiff or defendant and only one of them is present, the Court may hear the action against the one present and determine the action against the parties absent in accordance with subsection (1) or (2).
The Court may in its discretion in any of the cases specified in subsection (1) or
The stay, withdrawal, striking out or dismissal of the plaintiff's claim shall not prevent the hearing and determination of a counterclaim.
Mutual claims
Where judgment is given for sums of money on both claim and counterclaim, the Court may set the one off against the other and give judgment for the balance only but without prejudice to the power of the Court to make such order as to costs as it thinks just.
Notes of evidence
The Court shall record the evidence given and, so far as appears desirable, of the submissions of law made, including any objections to evidence, and may record such remarks on the demeanour of witnesses and other material matters.
Documents or exhibits
For the purpose of identification, documents or other exhibits tendered in evidence but rejected, shall also be marked.
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Order of speeches
The Judge before whom an action is heard may give directions as to the party to begin and the order of speeches at the trial, and subject to any such directions, the party who begins shall have the first right to sum up his case.
When the plaintiff has adduced all evidence for his case, the Judge shall call upon the defendant to adduce evidence in answer to the plaintiff's claim, and in such a case the defendant shall have the option either to adduce evidence or to submit that there is no case to answer.
Where the defendant elects to adduce evidence, the Judge shall record the evidence so adduced, and after the defendant has given all evidence on his behalf, the Judge shall ask the defendant to make a submission closing his case.
When the defendant has closed his case, the Judge shall ask the plaintiff to submit in answer to the defendant's submission and to close his case.
Notwithstanding anything in this section but subject to subsection (7) and (8), the
Judge may order any party to submit a written submission in such order and within such time as he may direct.
Where the defendant elects not to adduce any evidence but elects to submit that there is no case to answer, the Judge shall –
order the defendant to take an oath denying the plaintiff's claim, and if the defendant refuses to take such oath, the Judge shall, subject to subsection
, dismiss the defendant's case and allows the plaintiff's claim.
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Power of Court
Subject to subsection (2) –
In the interest of justice, the Court may, at any stage of the proceedings, call any party to adduce evidence and may inspect any place or thing.
Trial not concluded
Where the consent referred to in subsection (1) cannot be obtained, there shall be a new hearing.
Adjournment
The Court may from time to time adjourn or transfer any trial from one place to another, and in so doing may impose any condition.
Part XVI
Except in the case of proceedings in Chambers, the trial Judge shall, subject to subsection (3), pronounce his judgment in open Court.
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When a Judge who has tried any proceedings is for any reason unable to pronounce judgment, the judgment written by him may be read in open Court by any other
Judge or by the Registrar.
All judgments pronounced under this section shall form part of the record of the case.
Consent judgment
Judgments by confession or consent of the parties, including sulh, may be recorded by the Court at any time.
Terms of judgment or order to be settled by Court
The Court shall settle the terms of a judgment or order in such judgment or order.
Instalments, when due
Where any order is made for payment by instalments in a particular month, theinstalment shall, in the absence of any a direction to the contrary, be deemed to be payable on the first day of the month next following and on the first day of each succeeding month.
Order for instalments
if an order for payment by instalments has been made, for leave to pay by reduced instalments, and the Court may, after hearing the parties, make such order as it thinks just.
Where any instalment allowed by order under subsection (1) is more than one month in arrears, such order shall be deemed to be vacated and the judgment creditor may
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execute for the whole amount then due on the judgment, but the judgment debtor may apply for another order.
Any party may, if an order for payment by instalments has been made, apply that it be vacated or that the instalments be increased or decreased and the Court, after hearing the parties, may make such order as it thinks just.
Judgment, etc. requiring act to be done; time for doing it
Where the person required to do the act was personally present or represented by his Syar'ie Lawyer when the judgment or order was given or made, it shall not be necessary to serve him with a copy of the judgment or order.
Where the person required to do the act was not personally present or represented, no proceedings for his arrest or commitment shall be taken unless he has been served with a copy of the judgment or order endorsed with a notice in Form MS 28.
Date of judgment or order
Every judgment or order shall be dated and take effect on the date on which it was given or made.
Judgment on movable property
A Judgment for the delivery of movable property shall state the amount of money to be paid as an alternative if delivery cannot be made.
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Before the Court allows the plaintiff's claim under subsection (7), the Court shall
–
order the plaintiff to take an oath admitting the truth of his claim, and if the plaintiff refuses to take such oath, the Court shall dismiss his case.
Judgment
Part XVII
Interpretation
In this Part "decision" includes judgment or order.
Notice of appeal
The notice of appeal shall be filed within fourteen days from the day on which the decision was pronounced, and shall state whether the whole or part only, and what part, of the decision is appealed against.
The Court appealed from shall, upon receipt of the notice of appeal and upon payment of the prescribed fee, supply to the appellant a certified copy of the notes of evidence and the judgment.
As soon as the certified copies are ready, the Court shall notify the appellant in
Form MS 30.
Within 14 days from the receipt of the notification under subsection (6), the appellant shall, unless the Court otherwise orders –
deposit in the Court appealed from a sum which in the opinion of the
Registrar will cover the costs of preparing a sufficient number of copies of the appeal record for the use of the Court hearing the appeal and the parties to the appeal; and
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lodge in the Court appealed from a sum of money as the Court may direct by way of security for the costs of the appeal.
The notice of appeal shall be served by the appellant within the time limited for filing the appeal on all parties affected by the appeal or their respective Syar'ie Lawyer.
Notice of counter appeal
A respondent in any appeal may, within seven days from the date of the service of the notice of appeal on him, file in the Court hearing the appeal and serve on the appellant a notice in Form MS 31 of his intention to submit at the hearing of the appeal that the decision appealed against should be varied.
Grounds of appeal
, the appellant shall lodge with the Registrar of the Court appealed from grounds of appeal in five copies addressed to the Court hearing the appeal.
Every ground of appeal shall state briefly the substance of the judgment appealed against and shall contain definite particulars of the point of law or fact in respect of which the appeal is made and, except with leave of the Court hearing the appeal, the appellant shall not be permitted on the hearing of the appeal to rely on any ground other than those set out in the grounds of appeal.
Appeal record where appellant is represented
Two copies of the appeal record shall be filed in Court hearing the appeal within six weeks of the receipt of the notification from the Court appealed from that the certified copies of the notes of evidence and the grounds of judgment are ready.
The appellant shall within the period limited for the filing of the record serve a copy on each party who has been served with the notice of appeal.
Appeal record where appellant is not represented or appeals as a poor person
As soon as the appeal record is ready, the Court appealed from shall serve on the appellant a notice in Form MS 32.
Upon request by the appellant and, if the deposit mentioned in subsection 139(7)
is insufficient, upon payment by the appellant of a further sum sufficient to defray the costs of preparing the appeal record, the Registrar shall –
supply the appellant with a copy of the appeal record and sufficient additional copies for service on the respondent or respondents; and
forward to the Court hearing the appeal the remaining copies of the record.
Stay of execution pending appeal
The filing of a notice of appeal shall not operate as a stay of execution, but the Court may, on application and on sufficient cause being shown, stay execution on such terms as it may think fit.
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Judgment to state grounds
The Court hearing the appeal shall state the grounds of its judgment in writing.
Execution of judgment on appeal
When either party has extracted the order of the Court hearing the appeal and has produced the order to the Court appealed from, the Court appealed from shall execute the order in accordance with the provisions of this Enactment.
Part XVIII
A judgment debtor shall from time to time inform the Court of his latest address of residence and failure to comply with the requirement of this subsection shall be deemed to be a contempt of Court.
Enforcement of judgment, etc. for payment of money
Subject to this Enactment, a judgment or an order for the payment of money into court may be enforced, in a case where section 151 applies, by an order of committal.
Subsections (1) and (2) are without prejudice to any other remedy available to enforce a judgment or an order for the payment of money under any other written law, or to the power of Court to commit to prison a person who makes default in paying money adjudged or ordered to be paid by him.
Enforcement of judgment for possession of immovable property
An order for possession shall not be given unless it is shown that every person in actual possession of the whole or any part of any immovable property has received such a notice of the proceedings as appear to the Court to be sufficient to enable him to apply to the court for any relief to which he may be entitled.
An order for possession may include provisions for enforcing the payment of any money adjudged or ordered to be paid by the judgment or order which is to be enforced.
Enforcement of judgment for delivery of movable property
an order of delivery to recover the property without alternative provisions for the recovery of its assessed value (hereinafter referred to as an "order of specific delivery"); or
Subject to this Enactment, a judgment or an order for the delivery of any movable property or payment of its assessed value may be enforced by one or more of the following means, that is to say –
An order of specific delivery, and an order of delivery to recover any movable property or its assessed value, may include provisions for enforcing the payment of any money adjudged or ordered to be paid by the judgment or order which is to be enforced by the order.
A judgment or order for the payment of the assessed value of any movable property may be enforced by the same means as any other judgment or order for the payment of money.
Enforcement of judgment to do or abstain from doing an act
a person required by a judgment or order to do an act within a time specified in the judgment or order refuses or neglects to do it within that time or within that time as extended or abridged under section 238, as the case may be;
or
a person disobeys a judgment or order requiring him to abstain from doing an act,
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then, subject to this Enactment, the judgment or order may be enforced by one or more of the following means, that is to say –
(aa)
with the leave of the Court, an order of committal; or
(bb)
where that person is a body corporate, with the leave of the Court, an order of committal against any director or other officer of the body.
Where a judgment or an order requires a person to do an act within a time specified therein and an order is subsequently made under section 152 requiring the act to be done within some other time, references in subsection (1) to a judgment or an order shall be construed as references to the order made under section 152.
Where under any judgment or order requiring the delivery of any movable property the delivery of any movable property, the person liable to execution has the alternative of paying the assessed value of the property, and the judgment or order shall not be enforceable by order of committal under subsection (1), the Court may, on the application of the person entitled to enforce the judgment or order, make an order requiring the first mentioned person to deliver the property to the applicant within a time specified in the order and that order may be so enforce.
An application under subsection (3) shall be made in Form MS 33 and supported by an affidavit and a copy of the application and the affidavit shall be served on the person against whom the order is to be enforced.
Power of the Court to fix time
Where –
Where a judgment or an order requiring a person to do an act does not specify the time within which the act is to be done, the Court shall have the power subsequently to make an order requiring the act to be done within such time as may be specified therein.
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An application for an order under this section shall be made in Form MS 34 and copies of the application shall, notwithstanding any other provisions of this Enactment, be served on the person required to do the act in question.
Execution by or against person not being a party
Any person, not being a party to a cause or matter, against whom obedience to any judgment or order may be enforced, shall be liable to the same process for enforcing obedience to the judgment or order as if he were a party in the cause of matter.
Leave to issue order of execution
if at any time six years or more have lapsed since the date of the judgment or order;
if any change has taken place by death, assignment or otherwise in the parties entitled or liable to execution under the judgment or order;
if the judgment creditor desires to enforce the judgment against any person other than the judgment debtor named in the judgment;
except as provided in subsection 134 (2), if an order for payment by instalments is in force; or
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An application for leave to execute may be made ex parte, but the Court may order service of the application on any party or person concerned.
The Court shall, if it is satisfied that the order for execution should be issued, grant leave in accordance with the application.
Issue of order for execution
Subject to section 154, a judgment creditor may present to the Registrar an order for execution in Form MS 35 and the Registrar, if there appears no reason why execution should not issue, shall sign and seal the order in duplicate, file one copy thereof and deliver the other to the bailiff for execution.
Endorsement of time of delivery
The bailiff shall indorse in any order for execution the date and time the order is delivered to him.
Fees and expenses to be levied
All expenses and fees of execution, including a Syar'ie Lawyer's costs of execution, shall be levied in addition to the judgment debt.
Satisfaction
Where the Court is satisfied that the judgment debtor has satisfied the judgment, the
Court may, on the application of the judgment debtor, record in the Register of Mal that the judgment has been satisfied.
Types of execution
recover any sum payable by seizing and selling the movable property of the judgment debtor;
attach the movable property of the judgment debtor in the possession or control of a third party (hereinafter referred to as "muhal `alaih") or a debt due by the muhal `alaih to the judgment debtor;
seize and deliver to the judgment creditor any chattel ordered to be delivered by the judgment debtor; or
Every order for execution -
shall state by which methods as specified under subsection (1) execution is to take place; and
The Court may, on the application of any judgment creditor, issue a further order of execution in respect of different property or different methods of execution from those set out in the current order for execution.
Seizure and sale
The following provisions shall apply when an execution by seizure and sale is ordered for any property:
subject as hereinafter provided, take the property and place it under his custody;
if the property consists of shares, stocks, debentures or bonds not transferable by delivery, in any loan or fund, serve on the appropriate authority a copy of the order for execution in Form MS 36 together with sufficient description of the shares, stocks, debentures or bonds seized, and thereafter no transfer of the shares, stocks, debentures or bonds shall
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be registered except with the leave of the Court, and any interest or dividend in respect of the shares, stocks, debentures or bonds shall be paid into Court until the Court shall otherwise order or shall permit transfer thereof;
after seizure of property, any alienation or disposal of the property seized, otherwise than with the leave of the Court, shall be void against the bailiff, and such action shall also be a contempt of court;
at any time before sale, the judgment creditor may request the bailiff to release any specified property, and such release shall not be deemed to be abandonment of the execution as a whole;
at any time before sale, the judgment creditor may abandon the execution, and the bailiff shall thereupon return the order for execution to the Court;
the bailiff shall, unless the property seized be money, proceed to sell the property in accordance with this Part; and
the bailiff shall, on completion of the execution, make a return relating to the execution and submit it to the Registrar.
Hiwalah
The following provisions shall apply where the execution is ordered by attachment of property in the possession or control of a muhal 'alaih:
the bailiff shall serve on the muhal 'alaih a hiwalah notice in Form MS 37, and the notice in Form MS 38 shall be used if the property is in the Court;
all property specified in a hiwalah notice shall be attached as from the service of the notice on the muhal 'alaih to the extent or value therein mentioned, and any alienation or disposal of the property contrary to the
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terms of the notice, except with the leave of the Court, shall be void against the bailiff, and the such action shall also be a contempt of court;
the muhal 'alaih may pay to the bailiff the amount claimed or may deliver to him the property attached; and
if the muhal 'alaih does not make such payment or delivery, the bailiff may serve on him a hiwalah summons in Form MS 39 and the Court shall examine him as to the property attached,
Provided that:
no such summons shall be issued to a public servant in respect of money or property in his possession in his capacity as such, except with the leave of the Court and the consent in writing from the
Treasury; and
no such summons shall be issued in the case of money, investment funds or property in any Court;
after hearing the summons, the Court may make an order for payment or delivery and may order execution to be issued against the muhal 'alaih for any property found to have been lawfully attached in hands, as if he were himself a judgment debtor for the amount claimed against the original judgment debtor, or for the amount or value of the property in the muhal
'alaih's hands, whichever is less;
may order costs against the muhal 'alaih, and may grant or refuse him his recourse therefor against the judgment debtor; and
may allow costs to the muhal 'alaih against the judgment creditor, and may grant or refuse leave to treat the costs as costs of the execution;
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if a debt due on a judgment and payable by instalments is attached, the muhal 'alaih shall not be liable to pay except in accordance with the order for instalments;
payment by the muhal 'alaih under this section shall be a valid discharge against the judgment debtor;
the bailiff may, at the request of the judgment creditor, and shall, if so ordered by the Court, withdraw any hiwalah notice or hiwalah summons;
and
a hiwalah notice shall be deemed to be vacated three months after service, unless proceedings under the summons are then pending or the Court otherwise orders.
Money and property in Court
Money, invested funds or other property of the judgment debtor in or under the control of the Court which gives the judgment may, if an order for execution has been made, be applied with the leave of the Court towards satisfaction of the judgment debt, and investment and property other than money may for such purposes be ordered to be sold.
Seizure and delivery
Where execution is ordered by seizure and delivery of a chattel –
the bailiff shall seize the chattel and upon payment of all expenses due shall deliver it to the judgment creditor;
the order for execution may, if the judgment creditor so desires, order that if the chattel cannot be found, the value thereof, as found either in the original judgment or on subsequent application to the Court, shall be levied; and
The bailiff shall keep a record of all monies deposited with him under subsection
The bailiff shall not break into any enclosed house or inhabited building except with the leave of the Court.
Receipt 166.
The bailiff shall give a receipt for every sum of money received by him by way of levy, deposit or otherwise, and shall pay the money to the proper officer of the Registry.
Application of proceeds
The bailiff shall apply monies levied or received by him by way of execution in the following order:
expenses of execution;
return of the judgment creditor's outstanding deposit;
where the case falls within Part XIX, payment into Court to be dealt with in
Deposit of expenses
where the case does not fall within Part XIX, payment into Court to the credit of the judgment creditor not exceeding the amount necessary to satisfy the
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judgment in respect of which the execution was issued and the costs of the execution; and
payment into Court of the balance to the credit of the judgment debtor.
Expenses
Where the proceeds of the execution do not cover the expenses of such execution, the judgment creditor shall pay such expenses, but with recourse to the judgment debtor.
Return of order
The judgment creditor shall have the right to inspect and copy any inventory of property, sale account, voucher or other document relating to the execution which is kept or managed by the bailiff.
List of inventory
Where any property is seized and removed from the original place, the bailiff shall, upon request, give to the person in whose custody it was a sufficient inventory of the property.
Direction as to performance of bailiff's duty
The Court may summon and examine any person who can give information regarding any execution.
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Delivery to bailiff
Any document to be delivered to, or served on, a bailiff may be served on the Registrar during office hours.
Payment out of Court
Subject to any written law, any sum paid into Court by the bailiff to the credit of any person shall be paid out of Court to him on his application without any order:
Provided that the Registrar may in his discretion in any case and shall, if he has notice that any other person claims the sum in question or any part thereof, require the applicant to obtain an order of the Court before making payment.
Sale
Unless the Court otherwise orders, all sales shall be by public auction during office hours and a notice in Form MS 41 as to the date, hours and place of the intended sale shall be posted at the Court's Notice Board and at the place of the intended sale not less than seven days before such sale.
DEBTOR SUMMONS
Application
In this Chapter, "judgment" includes any order for the payment of money.
Application for judgment debtor summons
An application requesting a judgment debtor to appear under subsection (1) shall be made by filing a request in Form MS 42, signed by the applicant or his Syar'ie Lawyer.
Where a judgment has been given against two or more persons, the judgment creditor may require the judgment debtor summons to he issued against each or any of the persons liable under the judgment.
Issue of judgment debtor summons
A judgment debtor summons shall be served on the judgment debtor at least seven days before the day fixed for the hearing of the summons.
Examination of judgment debtor
If the judgment debtor is not present on the day fixed for the hearing of the summons, the Court may –
The Court may order the judgment debtor to pay the Judgment debt either –
by any instalment to be paid at the time fixed by the Court.
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Application for judgment notice
An application for a judgment notice under subsection (1) shall be made and sworn by the applicant in Form MS 44.
Issue of judgment notice
Unless the Court otherwise orders, a judgment notice shall be served personally on the judgment debtor at least seven days before the date fixed for the appearance of the judgment debtor.
Hearing of .judgment notice
If an order of committal is made, the Court may order the execution of the order to be suspended with or without condition to enable the judgment debtor to pay the amount in respect of which the order is made.
Order of committal
An order of committal under section 181 shall be in Form MS 46.
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Payment by judgment debtor
Where an order of committal is made under section 181, the judgment debtor may, at any time pay, either to the bailiff or, if the judgment debtor is in prison, to the officer-in-charge of the prison the amount stated in the order, and obtain his discharge.
Certificate of satisfaction
If the judgment creditor makes default in lodging the certificate referred to in subsection (1), the judgment debtor or any person on his behalf may apply to the Court for an order for his discharge, and the Court in making such order may direct that the cost for such application be paid by the judgment creditor.
Any order of committal of a judgment debtor under section 181 shall contain the date on which the order is made and shall be enforced for a period of one year from that date.
Part XIX
Proceeds of execution of sale to be distributed rateably among judgment creditors
where the property is sold subject to a charge, the chargee shall not be entitled to share in any surplus arising from the sale;
where any property liable to be sold in execution of an order or judgment is subject to a charge, the Court may, with the consent of the chargee, order that the property be sold free from the charge, giving to the chargee the same right against the proceeds of the sale as he had against the property sold; and
where any immovable property is sold in execution of an order or judgment ordering its sale for the discharge of the encumbrances thereof, the proceeds of sale shall be applied –
firstly, in defraying the expenses of the sale;
thirdly, in discharging the principal money due on subsequent encumbrances, if any; and
fourthly, rateably among the holders of the orders or judgment for the payment of money against the judgment debtor who have, prior to the sale of that property, applied to the Court which passed the order or judgment and have not obtained satisfaction thereof.
Where all or any of the assets liable to be rateably distributed under this section are paid to a person not entitled to receive the distribution, any person so entitled may sue that person for the refund of the assets.
Nothing in this section shall operate to defeat or postpone any claim which under the provisions of other written law ought to be given priority.
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Part XX
CHAPTER
INTERLOCUTORY PROCEEDINGS
Mode of application
Every application shall state the nature of the order applied for in general terms and the grounds of the application.
An application under this Chapter may be made ex parte unless the Court otherwise directs or otherwise provided in this Chapter.
Notice of application shall be filed
An application cannot be amended after filing without the leave of the Court.
Service of application
Any application asking only for the extension or abridgment of any period of time may be served on the day before the day specified for the hearing thereof but, except as aforesaid and unless the Court otherwise orders or otherwise provided in this Enactment, an application shall be served on every other party not less than two clear days before the day so specified.
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Affidavit
Any party –
filing an affidavit intended to be used by him in any proceedings relating to the application; or
intending to use in any such proceedings any affidavit filed by him in previous proceeding, shall give notice to every other party of the filing or of his intention, as the case may be.
Copies of the documents
The original of any document which is to be used in evidence in proceedings relating to the application shall, if it is available, be brought in, and copies of any such document or of any part thereof shall be supplied for the use of the Court or be given to the other parties to the proceedings.
Adjournment
If the hearing is adjourned generally, the party by whom the application was taken out may restore it on two clear days' notice before the day specified for the hearing to all the other parties on whom the application was served.
Non-appearance
Where any party to an application fails to attend on the first or any resumed hearing of the application and the Court thinks it expedient to proceed with the hearing in the absence of any party, the Court may do so.
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Before proceeding in the absence of any party, the Court shall be satisfied that the application or the notice of the time appointed for the resumed hearing, as the case may be, was duly served on that party.
Where the application has been dismissed without hearing by reason of the failure of the applicant to attend, the Court may, if satisfied that it is just to do so, allow the application to be restored.
Where the Court hearing an application proceeded with in the absence of a party, then, provided that any order made on the hearing has not been perfected, the Court, if satisfied that it is just to do so, may rehear the application.
Order made ex parte may be set aside
An application under subsection (1) shall be made within fourteen days from the date of the order and shall be heard inter-parte.
Application in a proceeding
The Court may, in its discretion, during the hearing of an application under this
Chapter, allow any application therein to be heard orally.
Application
This Chapter shall apply only to the Syariah High Court.
66
Power of Court to grant interim order
An application for an interim order shall be made in Form 50 and supported by an affidavit.
No appeal against interim order
There shall be no appeal against any interim order made under this Chapter.
Detention preservation, etc. of subject matter of cause or matter
For the purpose of enabling any order under subsection (1) to be carried out, the
Court may by the order authorize any person to enter upon any immovable property in the possession of any party to the cause or matter.
Where the right of any party to a specific fund is in dispute in a cause or matter, the Court may, on the application of a party to the cause or matter, order the fund to be paid into Court or otherwise secured.
Injunction
An application under this section shall not be made before an action has begun except where it is one of urgency.
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Where the applicant is the plaintiff and the case is one of urgency, such application may be made ex parte supported by an affidavit and that affidavit shall contain a clear and concise statement –
of the facts giving rise to the claim against the defendant in the proceedings;
of the facts relied on as justifying the application being made ex parte including details of any notice given to the defendant or, if none has been given, the reason for giving none;
of any answer asserted by the defendant, or which he is thought likely to assert, either to the claim in the action or the claim for the injunction;
of any facts known to the applicant which might lead the Court not to grant ex parte injunction;
of whether any previous similar ex parte application has been made to any other Judge and, if so, the order made in that previous application; and
Notwithstanding subsections (1) and (3), in any proceedings against the
Government or the Majlis, the court shall not grant an injunction but may in substitution make an order declaring the right of the parties in the cause or matter.
The Court shall not grant an injunction or any order against any officer of the
Government or of the Majlis if the effect of the injunction or the making of the order is to give relief that may not be obtained by it in proceedings against the Government or the Majlis.
An interim order as to hadhanah
An application made under this section shall not be made before the action has begun except in a case of urgency which in the interest of justice or for the protection of the applicant or the child it appears that the immediate intervention of the Court is necessary.
Where the applicant is the plaintiff and the case is one of urgency, such application may be made ex parte and shall be supported by an affidavit and that affidavit shall contain a clear and concise statement –
of the facts giving rise to the claims against the defendant in the proceedings;
of any facts known to the applicant which might lead the Court not to grant an interim order;
of whether any previous similar ex parte application has been made to any other judge and, if so, the order made in that previous application; and
Where the application referred to in subsection (1) is in respect of an interim order for the maintenance of a child, the Court shall not make such an order unless it is satisfied that the father or the person liable under Hukum Syarak for the maintenance of the child has the capability to pay for the maintenance applied for.
Power to order samples to be taken, etc.
For the purpose of enabling any order under subsection (1) to be carried out, the
Court may by the order authorize any person to enter upon any immovable property in the possession of any party to the cause or matter.
An application under this section shall be supported by an affidavit.
Sale of perishable property, etc.
The Court may, on the application of any party to any cause or matter, make an order for the sale by such person, in such manner and on such terms, if any, as may be specified in the order of any movable property which is the subject-matter of the cause or matter or as to which any question may arise therein and likely to deteriorate if kept or which for any other good reason it is desirable to sell forthwith.
Order for early trial
Where on the hearing of the application, made before the trial of a cause or matter, for an interim order it appears to the Court that the matter in dispute can be better dealt with by an early trial than by considering the whole merits thereof for the purpose of the application, the
Court may make an order accordingly and may also make such order as respects the period before trial as the justice of the case requires.
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Recovery of movable property subject to lien, etc.
Where the plaintiff, or defendant by way of counterclaim, claims the recovery of a specific movable property and the party from whom recovery is sought does not dispute the title of the party making the claim but claims to be entitled to retain the property by virtue of a lien or otherwise as security for any sum of money, the Court, at any time after the claim to be so entitled appears from the pleading, if any, or by affidavit or otherwise to its satisfaction, may order that the party seeking to recover the property be at liberty to pay into Court, to abide the event of the action, the amount of money in respect of which the security is claimed and such further sum, if any, for service charge and costs as the court may direct and that, upon such payment being made, the property claimed be given up to the party claiming it, but subject to the provisions of the Exchange Control Act 1953. [Act 17]
Allowance of income of property the subject matter of proceedings
Where any movable or immovable property forms the subject matter of any proceedings, and the Court is satisfied it will be more than sufficient to answer all the claims thereon for which provision ought to be made in the proceedings, the Court may at any time allow the whole or part of the income of the property to be paid, during such period as it may direct, to any or all of the parties who have an interest therein or may direct that any part of the movable property be transferred or delivered to any or all such parties.
Part XXI
Powers of Registrar
In any Court to which he is appointed, the Registrar in Chambers may –
where security is ordered, determine its sufficiency and require sureties to justify;
71
carry out any other functions provided under this Enactment or any order of a
Judge.
Powers of Judge
exercise his functions in Court or in Chambers in any proceedings within the local limits of his jurisdiction; and
A Judge may exercise in Court or in Chambers all the powers conferred on the
Registrar under section 208.
A Judge of a Syariah High Court may, on the application of any person or in his discretion, order the Syariah Subordinate Court to reinstate any case that have been rejected.
A Chief Syar'ie Judge may, on the application of any party or in his discretion, order any Court to reinstate any case which has been rejected.
Appeal against judgment, order decision of the Registrar
An appeal under subsection (1) shall be made by serving on every other party to the proceedings in which judgment, order or decision was given a notice in Form MS 51 to attend before the Judge on a day specified in the notice.
72
Unless the Court otherwise orders, the notice must be filed within seven days after the judgment, order or decision appealed against was given or made and served not less than two clear days before the day fixed for hearing the appeal.
Except as the Court may otherwise direct, an appeal under this section shall not operate as a stay of the proceedings in which the appeal is brought.
Part XXII
Court's bank account
Every Court shall keep an official account in accordance with Hukum Syarak at any bank.
Payment into Court
Money paid into Court may be paid to the Registrar stating the purpose for which the money is paid and the Registrar shall issue the receipt of acceptance.
Payment into bank
Court's bank account.
Notice to person entitled
Where money is paid into Court to the credit of any person, the person paying in shall forthwith give notice of the payment to the person to whose credit the money is paid.
Payment out of Court
may require proof that the person applying for payment is the person entitled or authorized to receive the payment; and
73
shall ascertain that all monies due to the Government of which he has notice has been paid or deducted.
Mode of payment
if fifty ringgit or more, shall be made by cheques payable to the payee, crossed and endorsed "not negotiable" and marked "Payable only within 90
clays from the date".
Cheques not cashed within ninety days from the date of the cheques may be renewed or replaced.
Remittance by post
Payment out of Court –
Where any money is remitted by post, the Registrar shall procure its receipt after remittance is made and the responsibility for its loss shall be borne by the recipient.
Books of account
In this section, "Treasury's Instructions" means instructions issued by the
Treasury under section 4 of the Financial Procedure Act 1657 [Act 61].
Service cost
No service costs shall be payable upon any fund kept in the Court.
74
Unclaimed fund, etc.
The Court may, upon the application of any claimant and if satisfied that the claimant is entitled to the money or property vested in the Baitulmal under subsection (1), order the
Baitulmal to pay the money or return the property or the value thereof to the claimant.
Part XXIII
Court fees
The Majlis or the Government shall not be required to pay any Court fees in proceedings by or against the Government or the Majlis.
No fees shall be chargeable in respect of proceedings taken at the instance of the
Court.
Costs
Subject to this Enactment, the Court shall, in its discretion, award costs of proceedings filed in that Court although it has no jurisdiction on such proceedings.
Assessment of costs
Costs shall be assessed by the Court or Registrar in accordance with the rules made under this Enactment.
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Witnesses
Where on the hearing of any proceedings a person attends Court as a witness of fact, or as a witness to produce a document, he may be allowed such appropriate sum as may be prescribed.
Expert witnesses
Where on the hearing of any proceedings a person attends Court as an expert witness, he may be allowed a fee for attending the Court, and in addition, a fee for qualifying to give evidence as such expert.
Accommodation and travelling allowances
In addition to any of the allowances payable under section 224 and 225, a witness or a party may be allowed such expenses which the witness or party has actually or reasonably incurred in travelling to and from the Court or in staying at his place of abode.
Attendance in more than one proceeding
Where a witness or party attends Court in respect of two or more proceedings, the sum which might be allowed to him under section 224 or 225 in respect of a proceeding may be apportioned between the several proceedings.
Witness not called
Allowance may be made to a witness whether he was called or not, if his attendance was necessary.
76
Part XXIV
Notice to show action or cause
Where contempt is committed in the face of the Court, it shall not be necessary for the Court to serve the notice to show cause but the Court shall ensure that the person alleged to be in contempt understands the nature of the offence alleged against him and has the opportunity to be heard in his own defence, and shall make a proper record of the proceedings.
In the case of contempt committed outside Court, notice to show cause why an action or proceedings should not be taken against him shall be served personally on the person alleged to have committed such contempt.
Contempt by body corporate
Where contempt of Court is committed by a body corporate, any person who at the time of the commission of such contempt is a director, manager or secretary of the body corporate or otherwise responsible for the management of the body corporate shall also be guilty of contempt unless he proves that –
the contempt is committed by the body corporate without his consent or connivance; or
he has exercised due diligence to prevent the commission of the contempt as he ought to have exercised, having regard to the nature of his office and function in that capacity and to all the circumstances.
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Proceedings without authority
Any person doing any act or taking any proceedings in the name or on behalf of another person knowing himself not to be lawfully authorized by that person shall be guilty of contempt of court.
Part XXV
Language
Any document required for use in pursuance of this Enactment shall be in the national language, and a document in any other language shall be accompanied by a translation thereof in the national language.
Forms
The forms set out in the Third Schedule, with such variations as the circumstances may require, shall be used for the respective purposes therein mentioned.
Certified copies
Upon application and payment of the prescribed fee by any person, the Registrar may supply a certified copy of any document including, with the consent of the Court, any notes of evidence to that person.
Fees, deposit and disbursement
Where any fee or deposit is payable in respect of any act, or any disbursement is necessarily involved in doing the act, the officer charged with doing of the act shall not be obliged to do it until the fee or deposit or the amount of the disbursement has been paid.
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Prohibition on officers of the Court
No officer of any Court shall become a surety, or sign any receipt or document or receive any money for or on behalf of any party to any proceedings in the Court, or bid or otherwise become purchaser directly or indirectly at any sale by the Court.
Furnishing security
Expenses of security, if any, shall be borne by the person giving the security.
The undertaking in writing of a Syar'ie Lawyer may be accepted in lieu of the security mentioned in subsection (1).
Where security is given by deposit of money, the money shall not be paid out without the order of the Court.
Where security is given by bond, one surety shall be required unless the Court otherwise orders.
Enlargement or abridgment of time
The Court may extend any such period as is referred to in subsection (1)
although the application for extension is not made until after the expiration of such period.
Scandalous matter, etc.
The Court may, of its own motion or on the application of any party, at any time, order that any scandalous, irrelevant, vexatious, oppressive, argumentative or lengthy document, or content of a document, be struck out.
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Personal appearance
Subject to any other written law, the Court may if it thinks necessary order the personal appearance of any party to any proceedings at any time, unless the party is outside the State, and wilful failure to comply with the order shall be a contempt of Court.
Service by other Court
Any process or document required to be served by an officer of the Court on a party may be served by any other Court.
Recording of evidence before trial
Notice that evidence will be taken under subsection (1) shall be served on the other party not less than two days before the date the evidence is to be so taken and the other party may take part in such proceedings.
Letter of request
The powers of the Court or a Judge under subsection (1) shall be exercised if there is a written request from the Court before which the proceedings are pending.
Notwithstanding subsection (1) the Court before which the proceedings are still pending may, of its own motion or on the application of any party to the proceedings, request another Court to take evidence from any party or witness in such proceedings, if the court is satisfied that the party or witness cannot attend the Court on a reasonable ground or if the appearance of the party or witness will cause the party calling the witness to incur unreasonable expenses.
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Inherent power of the Court
Nothing in this Enactment shall be deemed to limit or affect the inherent power of the
Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court.
Hukum Syarak
In the event of a lacuna or where any matter is not expressly provided for in this
Act, the Court shall apply Hukum Syarak.
Rules Committee
The members appointed under paragraph (1) (e) shall hold office for a period of two years and shall be eligible for reappointment.
The Chief Registrar of the Syariah Court shall be the Secretary of the committee.
81
Rules
Committee consisting of –
the fees, allowances and costs payable in respect of proceedings under this Enactment;
the forms, books of accounts, reports and other documents to be used in respect of any act or thing done under or in pursuance of this Enactment;
and
the conduct of Court, the form and method of execution of instruments and the appointment of officers or agents of the Court.
Where any case or matter is pending before any Court on the coming into force of this Enactment, the provisions of this Enactment shall apply in respect of the proceedings of such case or matter to the extent that it does not result injustice.
82
FIRST SCHEDULE
(Subsection 3 (3))
ARABIC SCRIPT FOR CERTAIN WORDS AND EXPRESSIONS
83
SECOND SCHEDULE
(Subsection 7 (2))
PROCEEDINGS TO BE BEGUN BY APPLICATION
Matters relating to personal and family law as follows :
Consent for solemnisation of marriage of a minor
Appointment of wali am
Order for registration of marriage solemnised contrary to law
Presumption of death
Appointment of guardian of property of a minor
Order for joint guardianship of property of a minor
Order for variation of power of guardian of property of a minor
Order for removal of guardian of property of a minor
Leave for disposal of a minor's property
Leave to support a minor out of income of his property
Order for use of capital property to support a minor
Prohibition order relating to a minor's property
Injunction restraining the taking of a child out of Malaysia
Order to set aside, and an injunction restraining, the disposal of property to defeat claim for maintenance
Injunction against molestation by spouse or former spouse
Recognition of marriage contracted outside the State (Acknowledgment of paternity)
Confirmation of acknowledgment of paternity by woman in `eddah (Distribution of estate)
84
THIRD SCHEDULE
(Section 2)
FORM MS 1
(Section 4)
GENERAL TITLE
IN THE SYARIAH SUBORDINATE/HIGH COURT AT ……………..................................
IN THE STATE OF ...............................................................
No. ................................................ of 20...................
Between
.............................................................................................................. Plaintiff
Applicant and
............................................................................................................... Defendant
Respondent
Notes:
Nature of proceedings (e.g. Summons; Application; etc.)
Name; if under disability or in representative capacity, give particulars of representation.
Example:
A.B. administrator of C.D. deceased;
A.B. an infant, by C.D. his guardian ad litem.
85
FORM MS 2
(Subsection 8(a))
SUMMONS
(General Title)
To ................................................................................................................... (the abovenamed defendant) of .......................................................
You are hereby summoned to appear either in person or by your Syar'ie Lawyer before the
Syariah ................................................. Court at.......................................on the ....................day of
..............................20 ……………. at .................... a.m./p.m., to answer a claim against you by the abovenamed plaintiff, particulars whereof are set out in the statement of claim endorsed hereon.
Take notice that in default of attending the Court on the day and time appointed, the Court may proceed to hear and determine the case in your absence.
And take notice that if you wish to defend the claim against you, you must file in this Court and serve on the plaintiff a defence in the prescribed form before the abovementioned date or appear in Court before that date.
Dated the .................... day of ................................................... 20.............
(Seal)
……………………………………
Judge/Registrar
(Endorsement on back of above)
STATEMENT OF CLAIM
(in numbered paragraphs)
To ......................................................................................................................................
the abovenamed defendant residing at ...........................................
Dated the .................... day of ................................................... 20.............
……………………………………………….
Plaintiff
(or Syar'ie Lawyer for the Plaintiff)
86
FORM MS 3
(Subsection 13(1))
APPLICATION
(General Title)
To …………………………………………………………………………………….. (the abovenamed defendant) of ………………………………………………………………………………………………..
………………………………………………………………………………………………………………...
Take notice that ............................................................................................................................. .
the abovenamed applicant will apply to the Syariah ........................................................................
Court at ......................................................................... on .............................................................
the ........................... day of ........................................ 20 ............................ at ................ a.m./p.m.
for an order that (1) ........................................................................................................................
……………………………………..……………………………………………………………………….…
on the grounds set out in the affidavit annexed.
…………...........................................
Applicant (or Syar'ie Lawyer for the Applicant)
Note:
The nature of the order applied for shall be stated with precision. Different matters arising in the same proceedings may be dealt with in the same application.
87
FORM MS 4
(Subsection 31(2))
APPLICATION FOR LEAVE TO SUE/DEFEND AS A POOR PERSON
(General Title)
I ............................................................................................................... make oath and say –
l ......................................................................................................................... reside at..............................................................................................................................and am a.....................................................................................................................
(State occupation)
*2.
I have a just claim against .......................................................................................
of .............................................................................................................................
for (here state concisely the claim and cause of action and all the material facts of the case).
I desire to bring an action against the said ..............................................................
. .......................................... but am unable to pay the Court fees therefor because
(state the reason why applicant is unable to pay the Court fees).
*3.
l am a defendant in this action and have a good defence to this action on the following grounds (state concisely the grounds of defence).
[l have a just counterclaim against the plaintiff for (state concisely the counterclaim and all material facts relating thereto)]
l am unable to pay the Court fees for my defence (or counterclaim) because (state the reason why applicant is unable to pay the Court fees).
I apply for leave to *sue the said ...................................................................... /defend
(and bring a counterclaim in) this action as a poor person.
Sworn at ............................................ this .................. day of .................. 20.............
……………………………………….
Signature of applicant
Before me,
……………………………………….
Judge/Registrar
Order,
Leave to sue/defend (and to bring counterclaim) as a poor person granted this .....................
.................. refused day of ................................. 20...................
………………………………………..
Judge
* Delete where not applicable.
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FORM MS 5
(Subsection 34(2))
MEMORANDUM OF WAKALAH OF SYAR'IE LAWYER
(General Title)
I ............................................................................................................................................ the abovenamed plaintiff (or defendant) N.R.LC. No ....................................................................... of hereby appoint ....................................................................................................................... of
Messrs ............................................................................................................. to represent me and to act on my behalf in this case and to appear in the proceedings relating to it.
Dated the ....................... day of .................................................. 20.....................
………………………………………
Plaintiff (or Defendant)
I .................................................................................................................. hereby accepts the aforesaid appointment
Dated the .............. day of ........................................... 20.................
………………………………………….
Syar’ie Lawyer
Before me,
………………………………………..
Judge/Registrar
This wakalah is filed by Messrs ............................................................................................ on behalf of the plaintiff (or defendant) of ............................................................................................
89
FORM MS 6
(Subsection 36(1))
NOTICE OF CHANGE OF SYAR'IE LAWYER
(General Title)
To the Registrar,
Take notice that I ..............................................................................................the abovenamed
Plaintiff (or defendant) of ....................................................................................................... has appointed .........................................................................................................................................
(name of new Syar'ie Lawyer)
to act on my behalf in this proceedings in place of ..........................................................................
……………………………………………………………………………………………………………
(name of former Syar'ie Lawyer)
The address for service of the abovenamed (name of new Syar'ie Lawyer) is
............................................................................................................................. ..........................
Dated the ..................... day of ..................................................... 20.................
………………………………………….
Plaintiff (or Defendant)
To the defendant (or plaintiff) or his Syar'ie Lawyer and to (naming the former Syar'ie Lawyer for the plaintiff (or defendant)).
90
FORM MS 7
(Section 37)
NOTICE OF DISCHARGE OF SYAR'IE LAWYER
(General Title)
To the Registrar,
Take notice that I ................................................................................................................. the abovenamed plaintiff (or defendant) has discharged my Syar'ie Lawyer (name of Syar'ie Lawyer)
. .......................................................................................................... as been appointed to act as the Syar'ie Lawyer for the plaintiff (or defendant) in this proceedings.
Dated the .................... day of ................................................... 20.............
……………………………………..
Plaintiff (or Defendant)
To the defendant (or plaintiff) or his Syar'ie Lawyer.
91
FORM MS 8
(Section 38)
NOTICE OF WITHDRAWAL OF SYAR 'IE LAWYER
(General Title)
To the Registrar,
Take notice that I ............................................................................................................................
Syar'ie Lawyer for the plaintiff (or defendant) hereby withdraw and cease to be Syar'ie Lawyer acting for the said plaintiff (or defendant) in the abovementioned proceedings.
Dated the :................. day of ................................................. 20...............
………………………………………..
Syar'ie Lawyer
This notice is taken out by ..............................................................................................................
(name of Syar'ie Lawyer)
of ................................................................................................................... Syar'ie Lawyer for the .............................................................................................................................
To the plaintiff (or defendant) or his Syar'ie Lawyer.
92
FORM MS 9
(Subsection 57(1))
NOTICE BY CLAIMANT OF PROPERTY TAKEN IN EXECUTION
(General Title)
Take notice that
I ......................................................................................................... of
. .......................................................... claim the following property that has been taken in execution in this action at state address)
on the
................................
day of
............................................. 20 ................... (State the money, goods or other movable property claimed and the grounds for the claim).
Dated the .................. day of ................................................. 20................
………………………………………….
Claimant
My address for service is ..................................................................................................
………………………………………………………………………………………………………….
To the bailiff and the execution creditor (or Syar'ie Lawyer for the execution creditor).
93
FORM MS 10
(Subsection 57(2))
NOTICE BY BAILIFF OF PROPERTY TAKEN IN EXECUTION
(General Title)
Like notice that ...................................................................................................................... of
…………………................................................................................................................................
……………………………………………………………………………………………………………….
has claimed the following property (specify the property claimed) …………………………..…........
……………………………………………………………………………………………….……………….
taken in execution by me under the order of seizure and sale issued in this action.
If within four days alter receiving this notice, you give notice to me that you admit the claim of the said .................................................................................................. to the said property or request me to withdraw from possession in Form MS 11 you will not be liable for any costs incurred after the receipt by me of your notice.
Dated the .................. day of ................................................ 20................
………………………………………
Bailiff
To the execution creditor (or Syar'ie Lawyer for the execution creditor).
94
FORM MS 11
(Subsection 57(2))
NOTICE BY EXECUTION CREDITOR OF PROPERTY TAKEN IN EXECUTION
(General Title)
Take notice that I admit (or dispute) the claim of .............................................................................
…………………………………………………………………………...………………………………….…
… .......................................................................................................................................................... to the property seized by you (or I request you to withdraw from possession) under the order of seizure and sale issued in this action.
Dated the .................. day of ................................................. 20................
………………………………………
Execution Creditor
(or Syar'ie Lawyer for the Execution Creditor)
95
FORM MS 12
(Subsection 58(1))
APPLICATION FOR AN INTERPLEADER SUMMONS BY BAILIFF
(General Title)
On the .......................................................... day of ........................................... 20…........
… ........................................................................................................ gave me notice that he claimed the following property (specify the property claimed) taken by me in execution under the order of seizure and sale issued in this action.
On the ......................... day ............................................ of 20 ............., I notified the execution creditor of the said claim. He does not admit the claim and has not requested me to withdraw from possession of the property claimed.
I value the property claimed at approximately RM ....................................I claim no interest in the subject matter in dispute other than for commission fees and expenses of execution.
I do not in any manner collude with any of the parties herein.
I apply for an interpleader summons to be issued.
Dated the .................. day of ................................................. 20................
………………………………………
Bailiff
Interpleader Summons to issue returnable the ............................................ day of.........................
..................... at ................................ a.m./p.m.
Dated the .............. day of ................................................. 20...............
………………………………………..
Registrar
96
FORM MS 13
(Subsection 58(1))
APPLICATION FOR APPEAL BY PERSON UNDER LIABILITY
Affidavit in support
I ......................................................................................,,,,,,,,,,,,,,,,..................................................
of ..................................................................................................................................... (if in an action, the abovenamed defendant) make oath and say as follows:
(If in an action). This action is brought to recover (state what) claimed by the plaintiff but I have received a claim adverse to that of the plaintiff from
………………………………………………………………,,,……………………………….............
…………………………………………………………………………………………………………
of (or, if no action), I have received adverse claims from ……………………………………
…................of...................................and...............................of..............................to
(state what) which is of the approximate value of RM ................................... I expect to be sued on these claims by the said claimants.
claim no interest in the subject matter in dispute (other than the sum of RM
................................................... for costs or charges) (or as the case may be). I do not in my manner collude with either (or any) of the said claimants.
I am ready and willing to bring into Court or to pay or dispose of the subject matter in dispute in such manner as the Court may direct.
Sworn (as in Form 26).
97
FORM MS 14
(Subsection 59(2))
INTERPLEADER SUMMONS
(General Title)
To Execution Creditor
To ..................................................................................................................................................
of ...................................................................................................................................................
Opening note
The Claimant
To ...................................................................................................................................................
of ....................................................................................................................................................
You are hereby summoned to appear before the Syariah ...............................................................
Court at ............................................................. on the ....................................................... day of
.................................................................. 20................... at .......................a.m./p.m. to support a claim made by you to ...................................................................................... certain property taken in execution under process issued out of this Court at the instance of the execution creditor and in default of you then establishing such claim the said property will be dealt with under the said process as property of the execution debtor.
Dated the ................................. day of ................................................ 20...............
(Seal)
Entered No. ........................................................ of 20...........................
Clerk
………………………………………
Registrar
99
FORM MS 15
(Subsection 62 (3))
JUDGMENT (OR ORDER) ON INTERPLEADER SUMMONS
(General Title)
Upon this Interpleader Summon (or summons) coming up for hearing before the Honourable
……………………………………………………………………..…………………………………………….
on .............................. the ......................... day of ....................................20 ............. and upon hearing the evidence adduced and what was alleged by the parties (or their Peguam Syar'ie)
(Insert the appropriate Operative Part)
(Operative Part)
Under execution
It is adjudged touching the claim of …………………………………………………………………..
…………………………………...............................................................................................................
to (specify the property) (or to the proceeds of sale) (or value) of (specify the taken in execution under process issued out of this
Court at the instance of
. .................................................................. execution creditor, that the said (specify the property)
(or proceeds of sale) (or value) (or part of the said property) (or proceeds of sale) (or value) namely
(specify same) is/are (not) the property of the claimant.
And it is ordered that the said ............................................................................. do pay to the said
. ...................................................................................................................................the sum of
RM ........................................................................................................................... for costs (and the sum RM ................................................................................ for extra expenses of execution and keeping possession occasioned by the claim).
(Insert direction as to disposal of any money in Court.)
In a pending action.
It is this day adjudged touching the claims of the plaintiff ....
and the claimant to ......................................................................................................... (Part of) the subject matter of this action that the claim of the plaintiff (or claimant) is valid and that the claimant (or plaintiff)
has no claim thereto.
100
(And it is further adjudged that the plaintiff (or claimant) do recover against the defendant the sum of RM .............................................. for debt and RM .................................................. for costs amounting together to the sum of RM ............................................................ ) (And it is ordered -
here insert any order for delivery of the property).
And it is further adjudged that the plaintiff (or claimant) do recover the sum of RM
...........................................................................
from the claimant (or plaintiff) for costs
........................................................................................................................... (add if any costs awarded to the defendant against the plaintiff or claimant):
And it is further adjudged that the defendant do recover the sum of
RM
. ................................................................... for costs from the plaintiff (or claimant). (If the claimant fails to appear and an order is made barring his claim, proceed is follows:
And the claimant ....................................................................................... not appearing, it is declared that the said.................................................................................................. and all persons claiming under him be forever barred as against the plaintiff and all persons claiming under him).
In any other case
It is this day adjudged (here set out the judgment determining the claim as between the applicant and any claimant who appears or, if all the claimants appear, the judgment determining the rights and claims of all parties and any order as to payment, or delivery of the property and costs)
.......................................................................................................
(If any claimant fails to appear and an order is made barring his claim proceed as follows:
And the claimant ............................................................................................................... not appearing, it is declared that the said ................................................................................. and all persons claiming under him be forever barred as against
. ...................................................................................................... the applicant and all persons claiming under him).
(Testimonium)
Dated the .................. day of ................................................. 20................
(Seal)
…………………………………………..
Registrar
101
FORM MS 16
(Subsection 64 (3))
DEFENCE
(General Title)
( Set out numbered paragraphs the admissions or denials of the material allegations in the statement of claim, each allegation being, so far as convenient, contained in a separate paragraph e.g. )
The defendant admits that ........................................................................... as alleged in paragraph ............................................................................................... of the statement of claim but denies that ……………….…………………………….……………………………
As to paragraph ................................................................of the statement of claim the defendant says that...........................................................................................................
Further or in the alternative the defendant says that ………...…………………………..……
If (which is denied) the plaintiff ……………………………………………………………….
says that .............................................................................................................................
Except hereinbefore expressly admitted the defendant denies each and every allegation of fact contained in paragraph .............................................................................................
(paragraphs ..................................................... to .............................................. of) the statement of claim as if the same were set forth herein and specifically traversed.
COUNTERCLAIM
The defendant repeats paragraph .................................................................. and claims
RM ..................................................................................................... being the balance of the amount due as aforesaid after deducting the plaintiff's claims.
Dated the .................... day of ................................................ 20................
………………………………………………….
Defendant (or Syar'ie Lawyer for the Defendant)
102
FORM MS 17
(Subsection 92(1))
NOTICE OF HEARING OF ACTION TRANSFERRED FROM
SYARIAH HIGH COURT TO SYARIAH SUBORDINATE COURT
(General Title)
Take notice that Syariah High Court Summons/Application No .................................................. of
…………………..20 ............................... has been transferred to this Court and numbered as
Summons/Application No. ..................................... of ............................... 20....................... and that you are required to attend the Syariah Subordinate Court at .............................................. on
............................ the ........................ day of ............... 20 ............... at ..............................
a.m./p.m for such directions as to further conduct of the proceedings.
Dated the ................. day of ................................................ 20................
…………………………………………
Registrar of the Syariah
High Court
Each party (or Syar'ie Lawyer for each party).
The Registrar,
Syariah Subordinate Court.
103
FORM MS 18
(Section 93)
NOTICE OF TRANSFER OF ACTION TO SYARIAH HIGH COURT
FROM SYARIAH SUBORDINATE COURT
(General Title)
Take notice that this action has been transferred to the Syariah High Court pursuant to an order of that Court.
Dated the .................. day of ................................................. 20................
………………………………………….
Registrar of the Syariah
Subordinate Court
Every party (or Syar'ie Lawyer for every party).
Registrar,
Syariah High Court.
104
FORM MS 19
(Subsection 95(1))
NOTICE OF DISCONTINUANCE
(General Title)
Take notice that the plaintiff wholly (or specify the part) discontinues this action against the defendant.
Dated the .................. day of ................................................ 20................
……………………………………….
Plaintiff (or Syar'ie Lawyer for the Plaintiff)
The defendant (or Syar'ie Lawyer for the defendant)
105
FORM MS 20
(Subsection 102 (1))
REQUEST FOR ISSUE OF SUBPOENA
(General Title)
To the Registrar,
Syariah ................................................................................................................. Court
Please issue a subpoena to the witness whose name and particulars are as follows:
Witness's name in full : …………………………………………………………………………………
N.R.I.C. No.
: …………………………………………………………………………………
Occupation
: …………………………………………………………………………………
Address
: ……………………………………………………………………………………
……………………………………………………………………………………
for the purpose *of giving evidence/*producing document/ or *giving evidence and producing document 2.
The witness is required to produce the following documents:
………………………………………………………………………………………………………………
……………………………………………………………………………………………………………….
Dated the .................. day of .............................................. 20................
……………………………………………………
Plaintiff/Defendant
(or Syar'ie Lawyer for the Plaintiff/Defendant)
* Delete where not applicable.
106
FORM MS 21
(Subsection 102(3))
SUBPOENA TO GIVE EVIDENCE
(General Title)
To ...................................................................................................................................................
of ...................................................................................................................................................
You are hereby summoned to attend before the Syariah .................................................... Court at
..............................................on......................................the .......................... day of................................ 20................... at ....................... a.m./p.m. and so from day to day until the end of the above proceedings, to give evidence on behalf of the
. ................................................................................................................................ in the said proceedings.
Dated the ................. day of ............................................. 20...............
Entered No. ............................................... of 20.......................
Clerk
(Seal)
………………………………………….
Registrar
107
FORM MS 22
(Subsection 102(3))
SUBPOENA TO PRODUCE DOCUMENT
(General Title)
To ....................................................................................................................................... of
……………………………………………………………………………….…….……………………….
……………………………………………………………………………………..……………………….
You are hereby summoned to attend either in person or by an agent before the Syariah
............................................
Court at ................................................................................. on
...................................... the ........................ day of ................................................ 20 .................. at
........................ a.m./p.m. and so from day to day until the end of the above proceedings to produce the following documents:
……………………………………………………………………………………………………………….
………………………………………………………………………..…………………………………….
………………………………………………………………………...…………………………………….
on behalf of the...................................................................................... in the said proceedings.
Dated the ................. day of ............................................... 20..............
Entered No. ................................................. of 20.......................
Clerk
(Seal)
…………………………………………
Registrar
108
FORM MS 23
(Subsection 102(3))
SUBPOENA TO GIVE EVIDENCE AND PRODUCE DOCUMENTS
(General Title)
To ..................................................................................................................................................
of ...................................................................................................................................................
……………………………………………………………………………………………….……………….
You are hereby summoned to attend in person before the Syariah ..............................................
................... Court at...............................................on....................................................................
the............................... day of ......................................................... 20 ................ at a.m./p.m. and so from day to day until the end of the above proceedings to give evidence and produce the following document: .......................................................................................................................
on behalf of the...................................................................................... in the said proceedings.
Dated the .................. day of ................................................. 20................
Entered No. ............................................... of 20............................
Clerk
(Seal)
…………………………………………..
Registrar
109
FORM MS 24
(Subsection 109(1))
AFFIDAVIT FOR AN ORDER FOR THE PRODUCTION OF A PERSON IN PRISON
(General Title)
I .........................................................................................................................................................
……………………………………………………………………………………………….………………….
of ……........................................................................................................................... ... make oath and say as follows:
That the above action is fixed for hearing in the Syariah .......................................................
Court at .......................................... on.......................................................................... the
.................... day of ............... 20............ and that .................................................................
now a prisoner confined in the prison/place of detention at .................................. will be a material witness for me at the hearing (or is party to the action).
That I am advised and verily believe that I cannot safely proceed to the hearing of this action without the evidence of the said ................................................................... (or my evidence)
hereby apply for an order under section 30 of the Prisons Act 1995 that the said
… ................................................................................... may be brought before the Court.
I hereby undertake to pay the costs of conveyance of the said..............................................
................................................................... in safe custody to and from the Court and of maintenance of him and the officers-in-charge of him while attending the Court.
Sworn (as in Form MS 26).
110
FORM MS 25
(Subsection 109(3))
ORDER TO PRODUCE PERSON IN PRISON
(General Title)
To the officer-in-charge of the ……….................................................... You are hereby required upon tender made to you of a reasonable sum for the conveyance and maintenance ofa proper officer and of ...................................................................................................................
now a prisoner in the ........................................................ in going to remaining at and returning from the Syariah ................................................ Court at ..............................................................
to bring the said ........................................................................................................ before the
Syariah .................................................... Court on .......................................................................
the ............................. day of ................................20................. at ..................... a.m./p.m. thereto give testimony on behalf of ...........................................................................................................
and after the said ....................................................................................................... shall have given his testimony before the Court and the Court shall have dispensed with his furtherattendance you are required to cause him to be conveyed under safe and sure conduct back to the said
…………………………………………………………………………………….
Dated the .................. day of ................................................. 20................
(Seal)
…………………………….
Registrar
111
FORM MS 26
(Section 113 (1))
FORM OF AFFIDAVIT
(General Title)
I ……………………………………………………………………………………………………………….
………………………………………………………………………………………………………………...
(name, address and description of deponent) make oath and say as follows:
(State the facts to be deposed in numbered paragraph in the affidavit)
…………………………………………………………………………………………………………..
…………………………………………………………………………………………………………..
…………………………………………………………………………………………………………..
…………………………………………………………………………………………………………..
Sworn on the ……………………………….day of ………………………………………….20………
at …………………………………………..…
………………………………………….
(Signature)
by …………………………………………….
Before me,
……………………………………..
Judge/Registrar
112
FORM MS 27
(Subsection 114(2))
IDENTIFICATION OF EXHIBIT
(General Title)
This is the exhibit marked ………..............................................................................................
referred to the affidavit of ........................................................................................................
sworn before me this .................... day of ....................................................20 ....................
……………………………………….
Judge/Registrar
FORM MS 28
(Subsection 135(3))
ORDER/JUDGMENT
(General Title)
(STATE TYPE OF ORDER/JUDGMENT)
Dated the .................... day of .............................................. 20 ............
………………………………………
Judge/Registrar
ENDORSEMENT
Take notice that, if you neglect to obey this order (or judgment), by the time limited therein, or within four days of the service of this order on you, whichever be the later, you will be guilty of contempt of Court and will be liable to be committed to prison.
………………………………………...
Judge/Registrar
113
FORM MS 29
(Subsection 139(2))
NOTICE OF APPEAL
(General Title)
Take notice that ................................................................................................................... the abovenamed plaintiff (or defendant) being dissatisfied with the decision of the Syariah
........................................................... Court at ......................... given on the ......................... day of.................20................ appeals to the Syariah .......................................... Court against the whole of the said decision (or such part of the said decision) as decides that, (set out details)
Dated the .................... day of ............................................. 20 .............
………………………………………………
Appellant (or Syar'ie Lawyer for Appellant)
The Registrar of Syariah ....................................................... Court and to:
114
FORM MS 34
(Subsection 139(6))
NOTICE THAT CERTIFIED COPIES OF NOTES OF
EVIDENCE AND JUDGMENT ARE READY
(General Title)
Take notice that the certified copies of notes of evidence and judgment are ready and that a sum of RM .................................................................................... is liable to be paid by you as to the costs of preparing the certified copies.
……………………………………………………………….
……………………………………………………………….
……………………………………………………………….
……………………………………………………………….
Dated the ................. day of .............................................. 20 .............
………………………………………
Judge/Registrar
115
FORM MS 31
(Section 140)
NOTICE OF COUNTER APPEAL
(General Title)
Take notice that, on the hearing of the above appeal, the respondent abovenamed will contend that the decision of the Syariah ........................................................................................... Court given on the ........................... day of ................................ 20 .................. ought to be varied on the following grounds :
(Set out in numbered paragraphs the nature of the relief claimed, and/or the grounds relied upon).
Dated the ................... day of ........................................ 20 .............
To the Registrar and the appellant.
………………………………………
Respondent (or Syar'ie Lawyer for the Respondent)
116
FORM MS 32
(Section 143 (2))
NOTICE THAT APPEAL RECORD IS READY
(General Title)
Take notice that the appeal record in the above mentioned proceeding's is ready and a sum of RM
. ................................................................................................. is liable to be paid by you for the cost of preparing such record.
Dated the ................... day of ............................................ 20 .............
………………………………………
Judge/Registrar
117
FORM MS 33
(Subsection 151 (4))
REQUEST FOR ORDER OF DELIVERY OF MOVABLE PROPERTY
(General Title)
To the Registrar,
………………………………………………………………….…………………………………………….
……………………………………………………………………………………………………………….
……………………………………………………………………………..……..………………………….
Please issue order of delivery against .........................................................................................
(name of defendant)
of ...................................................................................................................................................
… ............................................................................................................................... for the delivery of
............................................................................................................................. ............................
(described the movable property) under the judgment dated the .........................................day of
................................................ 20 .................. which has not been delivered to the plaintiff by the defendant in accordance with the said judgment.
The sealed copy of the judgment is attached.
Dated the .................... day of .............................................. 20 ...........
………………………………………..
Plaintiff (or Syar'ie Lawyer for the Plaintiff)
This application is filed by the plaintiff (or Syar'ie Lawyer for the Plaintiff) whose address for service is ....................................................................................................................................
…………………………………………………………………………………………….……………….
…………………………………………………………………………………………….……….………
118
FORM MS 34
(Subsection 152(3))
APPLICATION TO FIX TIME
(General Title)
To ..................................................................................................................................................
defendant (or Syar'ie Lawyer for the dependant)
Take notice that .........................................................................the abovenamed applicant intends to apply to the Syariah ........................................................... Court at ..............................
on .................................................................... the .................... day of ..................... 20...............
at ..................... a.m./p.m. for an order to fix time for.......................................................................
………………………………………………………………………………….…………………….
as ordered by the Syariah ............................................................. Court in the order dated the
.................................. day of ................................................... 20...............
The application is supported by an affidavit as annexed.
Dated the .................... day of .............................................. 20 .............
………………………………………………
Applicant (or Syar'ie Lawyer for the Applicant)
This application is filed by the applicant (or Syar'ie Lawyer for the Applicant) whose address for service is .........................................................................................................................................
……………………………………………………………………………………………………………..….
………………………………………………………………………………………………………...………
119
FORM MS 35
(Section 155)
ORDER FOR EXECUTION
(General Title)
To the Bailiff,
Upon the application of the judgment creditor, you are hereby ordered to execute the judgment dated the .................... day of ...................................... 20.............. obtained by the judgment creditor against the judgment debtor for which the particulars are as follow :
Amount of judgment .......................................................................................................
Costs ..............................................................................................................................
Costs of this order .........................................................................................................
Amount to be paid .........................................................................................................
and you shall execute the said judgment by any of the following methods:
.................................................................................................................................
.................................................................................................................................
………………………………………………………………………………………………………..
and that after paying the prescribed fees and the expenses of execution (including costs of request for leave of execution and costs of execution), to bring into Court any money levied and to forthwith return this order to the Court.
Dated the ................... day of ........................................... 20 .............
Date of order granting leave to execute.
…………………………………………
Registrar
120
FORM MS 36
(Section 160 (a) (ii))
ORDER FOR EXECUTION BY SEIZURE AND SALE
(ATTACHMENT OF SHARES, ETC.)
(General Title)
To .............................................................................................................................. (judgment debtor) of ....................................................................................................................................
Opening note
………………………………………..
Judge/Registrar
Delete where not applicable.
121
FORM MS 37
(Subsection 161(2) (a))
HIWALAH NOTICE
(General Title)
Upon the execution order dated the ................day of ............................................ 20...............
It is ordered that all debts due or accruing due from the abovenamed muhal `alaih to the above judgment debtor (in the sum of RM ..................................................................................... )
be attached to answer a judgment recovered against the said judgment debtor by the abovenamed judgment creditor in the Syariah ................................................. Court on the
............................... day of ........................................................ 20 .................. for the sum (or to answer an order made in the Syariah....................................................... Court on the
.................................................... day of ............................... 20 .................... ordering payment by the said judgment debtor to the abovenamed judgment creditor of the sum) of RM
.................................... (debt and RM..........................................................................................
costs) together with the costs of the hiwalah proceedings) on which judgment (or order) the sum of RM ........................................................................................... remains due and unpaid.
Take notice also that all transactions to dispose or discharge made after the service of this notice are invalid and you are liable to damages and cost to the judgment creditor.
If you dispute your liability under this notice, you shall within seven days from the date of service of this notice, file a notice of objection of liability herein to the Court.
Dated the .................... day of ............................................. 20 .............
(Seal)
……………………………………..
Judge/Registrar
To the abovenamed muhal 'alaih and judgment debtor
Notice of Objection
Take notice that I, .................................................................................the abovenamed muhal
`alaih hereby object to the liability imposed upon me by this notice on the following grounds:
………………………………………….
Muhal `alaih (or Syar'ie Lawyer for the Muhal `alaih)
This notice is filed by the muhal `alaih (or Syar'ie Lawyer for the muhal `alaih) whose address for service is .................................................................................................................................
122
FORM MS 38
(Subsection 161(2) (a))
HIWALAH NOTICE (PROPERTY IN COURT)
(General Title)
Order for execution dated the ................. day of ........................................... 20 .............
To :
The Judge/Registrar the Syariah ..................................................................... Court.
Whereas it is stated by the judgment creditor that a sum of RM......................................................
stands in the Syariah ......................................... Court at .......................................................
to the credit of the judgment debtor, in proceedings ................................................................
I forward herewith a copy of the order for execution above referred to and request that you will remit to this Court any money, which otherwise would be or become payable to the saidjudgment debtor out of the said Court by virtue of the said proceedings, up to, but not exceeding,such amount as is referred to in the said order of execution as being due to the judgment creditor.
Dated the .................... day of .............................................. 20 .............
…………………………………………
Judge/Registrar
123
FORM MS 39
(Subsection 161(2)(d )
HIWALAH SUMMONS
(General Title)
Order for execution dated the ........................... day of ....................................... 20......................
Hiwalah Notice dated the ................................... day of ...................................... 20.....................
To .........................................................................................................................................of
.................................................................................................................................... muhal `alaih.
You are hereby summoned to appear before the abovemention Court on ................................ the
............................... day of .................................. 20.................. at .............................. a.m./p.m. to be examined as to any property of the judgment debtor (name) .....................................................
. .......................................................................... which may be, or may, since the service of the hiwalah notice on you, have been in your possession, custody or control and as to any debts due or accruing due from you to the said judgment debtor, and to bring with you all books and other documents relating thereto in your possession, custody or control.
Take Notice that, in default of such appearance, an order may be made against you in your absence.
Dated the .................. day of .............................................. 20 .............
(Seal)
…………………………………………
Judge/Registrar
124
FORM MS 40
(Subsection 169(1))
RETURN TO ORDER FOR EXECUTION
(General Title)
Order for execution dated the ........................ day of .................................................. 20...........
Method of execution (1)
Levy paid by execution debtor ................................................... RM............................................
Particulars of property seized (2)
Property sold on the ................................. day of ........................................................ 20............
by ..................................................................................... for RM ................................................
Expenses of execution: (3)
Paid into Court:
to credit of judgment creditor ........................................................................................................
RM.......................................................... (4) ..............................................................................
………………………………………………………………………………………………………………
……………………………………………………………………………………………………………….
……………………………………………………………………………………………………………….
Dated the .................... day of.............................................. 20 .............
Notes :
……………………………………….
Bailiff
The method shall be one or more of those referred to in the order.
State in detail, identifying an inventory, if necessary.
State in detail.
Give particulars of any payments to the credit of other judgment creditors for whom the bailiff holds orders for execution.
125
FORM MS 41
(Section 174)
NOTICE OF SALE
(General Title)
Notice is hereby given that the property seized at ................................................................... on the ........................... day of ................................................... 20.................. under order of seizure and sale No ............................................................................ of 20 .......................will be sold by public auction on the .................................................................................... day of
................................................. 20................. at .................................. a.m./p.m. unless the amount to be levied and the fees and expenses of execution be sooner paid.
Dated the .................... day of .............................................. 20 .............
…………………………………….
Bailiff
126
FORM MS 42
(Subsection 176(2))
REQUEST FOR JUDGMENT DEBTOR SUMMONS
(General Title)
To the Registrar,
Please issue a Judgment Debtor Summons against (name and description of judgment debtor)
of (address of judgment debtor) in respect of the judgment (or order) herein dated the
...................................... day of ......................................20 ........................... which remains unsatisfied to the extent of RM ....................................................................................
A sealed copy of the judgment is attached hereto.
Dated the .................... day of ............................................ 20 .............
…………………………………………………….
Judgment Creditor (or Syar'ie Lawyer for the Judgment Creditor)
My address of service is ................................................................................................................
……………………………………………………………………………………………..………………..
………………………………………………………………………………………………………………..
………………………………………………………………………………………………………………..
127
FORM MS 43
(Section 177 (1))
JUDGMENT DEBTOR SUMMONS
(General Title)
To ..................................................................................................................................................
of ....................................................................................... the abovemention judgment debtor.
Your are hereby summoned to appear before the Syariah .............................................................
Court at ....................................................... on ..........................................the ......................... day of ........................................................ 20............. at .................... a.m./p.m. then and there to be examined respecting your ability to satisfy the judgment recovered against you in the above action on the ...................................................... day of ............................ 20 ...................... for RM
..................................................................... and RM ................................... costs upon which judgment the sum of RM ............................................................. is still due.
Take notice that if you do not so appear an order for your arrest may be issued or an order for payment made against you in your absence.
Dated the .................... day of ........................................... 20 .............
Entered No. .......................................... of 20.......................
Clerk
(Seal)
……………………………………………….
Judge/Registrar
128
JUDGMENT DEBTOR SUMMONS AGAINST OFFICER
OF CORPORATION
To ......................................................................................................................................... of
. ....................................................... (an officer) of the abovenamed defendant corporation.
You are hereby summoned to appear before the Syariah ..................................... Court at
....................................................... on ...................................... the ......................................... day of ................................................................. 20...................... at ....................... a.m./p.m. to be examined touching the liability of the abovenamed defendant corporation to satisfy the judgment
(or order) recovered (or made) against the said corporation in the above action cm the
........................................................... day of ................................. 20 .................................... for
RM................................................and RM.................................................................
costs upon which judgment (or order) the sum of RM ............................................. still due.
Take notice that if you do not so appear an order for your arrest may be issued.
Dated the ................... day of .............................................. 20 .............
Entered No. ............................................,.... of 20.......................
Clerk
(Seal)
…………………………………………..
Judge/Registrar
129
FORM MS 44
(Subsection 179(2))
APPLICATION FOR JUDGMENT NOTICE
(General Title)
I .......................................................................................................................................................
of ..................................................................................................................... the abovenamed plaintiff (or defendant) and judgment creditor apply for a judgment notice to be issued against the judgment debtor to show cause why he should not be committed to prison for default in payment.
(Particulars of judgment and judgment debtor)
(a)
Full name and address of judgment debtor.
(b)
Date and particulars of the order for payment in respect of which default has been made.
(c)
The total amount which has been paid since the date of such order.
(d)
The sum or instalment in respect of which default has been made.
(e)
The date on which the sum or instalment ought to have been paid according to the order.
(f)
The debtor's occupation, circumstances and means of payment as far as they are known to the applicant.
Dated the .................... day of ........................................... 20 .............
………………………………………..
Plaintiff (or Defendant)
AFFIDAVIT IN SUPPORT
I ............................................................................................................................................ the abovenamed judgment creditor make oath and say:
That the particulars stated above are to the best of my knowledge and belief in all respects true.
Sworn (as in Form 26)
130
FORM MS 45
(Section 180)
JUDGMENT NOTICE
(General Title)
To the Judgment Debtor,
Take notice that you are required to attend the Syariah .................................................................
Court at ..................................................... on ......................... the .......................................... day of ........................................................... 20.................. at .......................a.m./p.m. to show cause why you should not be committed to prison for having disobeyed the order of the Court dated the
...................................... day of ..................................... 20............... that is to say, in having made default in payment of the ................................................................ instalment due thereunder (or state the order disobeyed or not complied with).
Dated the .................... day of ............................................. 20 ............
Entered No. ................................................. of 20.......................
Clerk
(Seal)
……………………………………….
Registrar
131
FORM MS 46
(Section 182)
ORDER OF COMMITTAL
(General Title)
To the Bailiff,
Whereas an order was made by the Court on the ................. day of .......................... 20..............
whereby it was ordered that ................................................................................................ the abovenamed judgment debtor pay the judgment debt and costs by instalments of RM
..............................................................................................a month:
And whereas he has made default in the payment of instalment amounting to RM
............................................................................................................................. .........................
You are hereby commanded to arrest the said ............................................................... and to deliver him to the officer-in-charge of the ........................................................................ Prison there to be kept for the term of ............................. days from the arrest under this Order or until earlier payment of the instalment due amounting to RM ..........................................
Dated the .................... day of .............................................. 20 .............
Entered No. ................................................. of 20.......................
Clerk
(Seal)
…………………………………………
Registrar
132
FORM MS 47
(Subsection 184 (1))
CERTIFICATE OF SATISFACTION
(General Title)
I............................................................................................................................ ............................
of ................................................................................................................................ being the judgment creditor, hereby certify that the judgment debt in respect of' which the judgment debtor ........................................................ is imprisoned has been satisfied and I request that the said ................................................................. be discharged from detention.
Dated the .................... day of ............................................. 20 .............
……………………………………………..
Judgment Creditor (or
Syar'ie Lawyer for Judgment Creditor)
To the Officer-in-charge of the ......................................................................................... Prison.
This certificate is sufficient authority for the discharge of the judgment debtor from detention under the Order of Commitment No. .....................................of 20 ................. issued in respect of non-payment of the judgment debt.
Dated the .................... day of ............................................ 20 ............
(Seal)
…………………………………….
Registrar
133
FORM MS 48
(Subsection 184 (3))
ORDER OF DISCHARGE
(General Title)
To the Officer-in-charge of the .................................................................................. Prison.
Whereas it has been shown to be satisfaction of the Court that the judgment debtor has satisfied the judgment debt in respect of which he is imprisoned under an Order of Commitment No.
..............................................of 20....................... dated the ................................................... day of .................................................... 20 .................. in the above action.
You are hereby directed to discharge from your custody the said judgment debtor for which this
Order shall be your sufficient authority.
Dated the .................... day of .............................................. 20 ...........
(Seal)
……………………………………
Registrar
134
FORM MS 49
(Subsection 187 (1))
INTERLOCUTORY APPLICATION
(General Title)
Take notice that the abovenamed plaintiff intends to apply to the Syariah .................................
Court at......................................................on..............................the ....................................... day of
............................................... 20.............. at ................. a.m./p.m. for an order that (state nature of application).
2.
The grounds of the application are :
...........................................................
..........................................................
……………………………………………
(State the grounds)
Dated the .................... day of ............................................. 20 .............
Entered No. ............................................... of 20.......................
Clerk
(Seal)
……………………………………….
Registrar
This notice is taken out by the plaintiff of (state address)
135
FORM MS 50
(Subsection 197 (2))
APPLICATION FOR INTERIM ORDER
(General Title)
Take notice that the abovenamed plaintiff intends to apply to the Syariah .....................................
...................................... Court at .................................... on ..........................................................
the ...................... day of................................ 20............. at ..................... a.m./p.m. for an interim order that (state nature of application)
2.
The grounds of the application are:
1. .....................................................
2. ………………………………………
(State the grounds)
3. ……………………………………….
3.
This application is supported by an affidavit annexed.
Dated the .................... day of ............................................. 20.............
Entered No . ............................................. of 20......................
Clerk
(Seal)
.....................................................
Registrar
To the defendant (or as may be)
This application is taken out by the plaintiff (or as may be) of (state address)
136
FORM MS 51
(Subsection 210 (2))
NOTICE OF APPEAL TO JUDGE IN CHAMBERS
(General Title)
Take notice that the abovenamed plaintiff (or defendant) intends to appeal against the decision of the Registrar given on the ....................... day of ......................................... 20..............
ordering (or refusing to order) (state in full the order appealed against).
Dated the .................... day of .............................................. 20 ............
.....................................................
Plaintiff/Defendant (Syar'ie Lawyer for the Plaintiff/Defendant)
And further take notice, that you are required to attend before the Judge in Chambers on
............................................. the .......................... day of ................................. 20.....................
at ................... a.m./p.m. on the hearing of an application by the said plaintiff (or defendant) that
(state the order sought to be obtained).
Dated the .................... day of .............................................. 20 .............
(Seal)
………………………………………
Registrar
To the defendant (or plaintiff).
CERTIFIED by me to be a true copy of the Bill passed by the Legislative Assembly on
Wednesday, the 11th day of August, 2004.
DATUK JAMES ANDREW VITALES,
Deputy Speaker,
State Legislative Assembly.