Rahmah Hussain J:

This is an appeal against the decision of the learned senior assistant registrar, allowing the plaintiffs' claims to be struck out for res judicata and/or multiplicity of actions.

The defendant's main contention is that the present action before this court constitutes res judicata and/or multiplicity of actions because there were two previous actions involving the same parties (hereinafter referred to as the first and second actions).

The background facts of the first action are these: The plaintiffs' claims against the defendant arise from the defendant's breach of a sale & purchase agreement dated 30 March 1981 and a Supplementary Agreement dated 10 March 1986. (See exhs. "ST1" & "ST2" - encl. (8)).

The defendant breached the agreement by failing to comply with the terms of payment of the purchase price.As a result the plaintiffs exercised their right under cl. 4 of the supplementary agreement (ST-2) and terminated the agreement.Thereafter they demanded the defendant to deliver vacant possession of the property.

The defendant failed, refused or neglected to deliver vacant possession, hence the plaintiffs commenced an action in the Kuala Lumpur High court pursuant to O 89 of the Rules of the High 1980 vide Originating Summons No. S6-31-3682-88, that is the first action. (See exh. "PR1" - encl. (6)).

At the hearing of the originating summons and the defendant's application to strike it out on 2 January 1990, the defendant's solicitor failed to attend court.An order for vacant possession was thus granted to the plaintiffs.The defendant then applied to set aside the default order and her application came up for hearing on 18 April 1990. (See notes of proceedings in exh. "KAR1" - encl. (38)).

I pause here to mention that learned counsel for the defendant at the outset, had raised a preliminary objection on the filing of an affidavit affirmed by the plaintiffs' public affairs manager, (encl. (38)) which contains the Notes of Proceedings as well as the grounds of judgment of the learned judge in the first action. (See exhs. "KAR1", "KAR2" and "KAR3").

After giving due consideration to the objection and the submission in reply by learned counsel for the plaintiffs, I overruled the objection as I was satisfied that encl. (38) is not an affidavit in reply but an additional affidavit which was filed pursuant to my direction on 16 July 1997 to exhibit the complete set of Notes of Proceedings, as the defendant had produced only partially the notes of proceedings in her affidavit as exh. "PR3" in encl. (6). Furthermore I was of the view that it was important for me to examine the notes of proceedings and grounds of judgment of the first action in order to determine whether or not there is multiplicity of proceedings and on the issue of res judicata.

Going back to the background facts of the first action - at the hearing of the defendant's application to set aside the default order, the only issue raised by the defendant and considered by the learned judge was whether O 89 of the Rules of the High 1980 , was applicable and whether the order for vacant possession granted in the absence of the defendant's solicitors should stand or be set aside.After hearing arguments from both sides, the learned judge decided in favour of the defendant but only on procedural point.

The plaintiffs being dissatisfied with the said decision given on 3 January 1991 appealed to the then Supreme court vide Civil Appeal No. 02-19-91. Then on 2 March 1994, the Supreme court reaffirmed the High court's decision and held that the summary procedure under O 89 only applies to unlawful entry in the first instance and not in a case where consent has been given, the latter being the case in the first action.

Now, about three (3) months before the first action, the defendant had filed a separate action under Suit No. S5-22-210-88 (hereafter referred to as the "second action") for a declaration that the agreement is null, void and unenforceable and also fo