Kang Hwee Gee JC:

This is an application under O. 18 r. 19 of the Rules of the High to strike out the plaintiff's pleading on grounds that it does not disclose a reasonable cause of action, is frivolous, vexatious and an abuse of the process of the Court by reason that it is res judicata.

The brief facts of the case are as follows:

On 24 July 1986 the plaintiff entered into an agreement with the defendant to sell his undivided share in a piece of land held under EMR 9201 in the Mukim of Sitiawan for the sum of RM120,000.The parties engaged Messrs.Ngan and Chen to draw up the sale and purchase agreement and to act as their common solicitors.The defendant paid the plaintiff the total sum of RM12,000 leaving a balance of RM108,000 to be paid on or before 3 July 1987.According to the defendant on 26 June 1987 he paid this sum to Messrs.Ngan and Chen by two cheques which were then banked into their clients' account.On 21 July 1987, however Messrs.Ngan and Chen acting on their own initiative refunded the money back to the defendant allegedly after learning that the plaintiff was unwilling to complete the sale.

On 7 August 1987, the plaintiff filed Civil Suit No. 22- 148-87 against the defendant to declare the said agreement null and void on the ground of non est factum. The defendant filed his defence and counter claimed against the plaintiff seeking inter-alia specific performance of the said agreement.The defendant then applied for summary judgement under O. 81 of the Rules of the High 1980 . On 26 June 1989, the Court heard and granted specific performance of the said agreement with costs, but stayed the order until the plaintiff's claim is disposed of.

Before that claim could be heard however, the defendant took out an application to strike out the plaintiff's claim while a third party one Yew Uang Kuh also applied by summons in chambers dated 7 December 1989, to intervene in that suit.

Both the applications were heard together on 18 December 1989, whereby the defendant's application to strike out the plaintiff's claim was dismissed and the intervener's application to intervene was allowed.The defendant then appealed to the Supreme Court which on 25 July 1990, reversed the High Court decision.It allowed the defendant's application to strike out the plaintiff's claim and dismissed the intervener's action with costs.The plaintiff then proceeded to file a Notice of Motion No. 08-36-92 to set aside the Supreme Court judgement (presumably on the same ground of fraud as in this present suit) but the motion was dismissed by the Supreme Court on 1 March 1992.

The plaintiff now files this present suit (C.S.22-126- 93) seeking to set aside the judgement obtained against him in the first suit on the ground that the defendant had obtained that judgement by fraud.The fraud and its particulars alleged by the plaintiff in this suit appears in paragraph 7 of the statement of claim as follows:

Since then it has come to plaintiff's knowledge that the said judgement of 26 June 1989 was in fact obtained by fraud on the defendant's part.

(i) The defendant paid the sum RM108,000 on 26 June 1987 but wrongfully withdrew the same on 21 July without the consent of knowledge of the plaintiff. (ii) The defendant fraudently dishonestly and falsely affirmed in para 4 of his affidavit affirmed on 28 October as follows:

I was and am at all material times willing and ready to fulfill my obligations under the said agreement and on 26 June 1987, I paid to the parties' Solicitors Messrs.Ngan & Chen, Advocates & Solicitors of 7th Storey, Wisma Ganda, Jalan Raja Omar.Sitiawan the balance purchase monies amounting to RM108,000 to complete the purchase of the property; I am now shown and produce herewith a true copy of the receipt issued by the said solicitors marked "C".

(iii) Falsely and fraudently exhibiting official receipt No. 00073 of Messrs.Ngan & Chen, Advocates & Solicitors, Sitiawan to show payment of balance purchase price of