Wilson J:

This is a Notice of Motion by the first defendant for an order that the suit be dismissed upon the grounds : (i) that the action is frivolous and vexatious and is an abuse of the process of the Court; and (2) the plaint filed discloses no reasonable cause of action.The original plaint was against the first defendant only.Subsequently, a Notice of Motion was filed for leave to be granted the consent of His Highness the Sultan of Selangor in Council to join the second defendant and to amend the Plaint accordingly and in certain other aspects.The second defendant is not a party to this motion.The circumstances in which this action is brought are very fully set out in the amended statement of plaint. I do not propose to refer to the allegations in detail.If this motion should have to be considered by another Court, all the allegations contained in the amended plaint will be before that Court and that Court will have a full discretion to decide all the matters which have been argued before me at considerable length and will be unfettered by the conclusions to which I have come.

Paragraphs 1 and 2 of the amended plaint are merely formal.The case arises out of another Civil Suit No. 88 of 1950 in which the present first defendant was the plaintiff second the two plaintiffs in this suit were the defendants.The second defendant in this suit was not a party to the action although he gave evidence.

Paragraphs 3 to 18 of the amended plaint set out the circumstances leading up to Civil Suit No. 88 of 1950.

Paragraphs 19 to 23 set out what happened in the Suit.The claim of the plaintiff in that suit was that the instruments of transfer executed by the plaintiff in that suit in favour of the two defendants in respect of two pieces of land in the district of Kiang should be set aside on the grounds that they were obtained with the knowledge of the defendants by coercion or duress during the Japanese occupation.The learned trial Judge held that the transfer of the lands was obtained from the plaintiff by duress and the defendants were parties to it or had knowledge of it, and he gave judgment for the plaintiff.The case went before the Court of Appeal who upheld the judgment of the learned trial Judge.Subsequently, the case went to the Judicial Committee of the Privy Council who advised that the appeal should be dismissed, as it in fact was.

The defendants in that action, who are the plaintiffs in this action and who will hereafter be referred to as the plaintiffs, brought this action against the first defendant originally to set aside the judgment of the Court in Civil No. 88 of 1950 and in the meantime to restrain the first defendant from taking any steps to give effect to any part of the order made by the Court or to any part of the order made by the Court of Appeal or to any part of the order made by the honourable the Privy Council.The grounds for this suit are contained mostly in para. 24 of the amended plaint in which the plaintiffs allege that the first defendant obtained judgment in his favour in Civil Suit No. 88 of 1950 by means of fraud, forgery and perjury. I am satisfied that the judgment in Civil Suit No. 88 of 1950 is res judicata and could only be set aside if fraud were proved, and that the allegations of fraud could only succeed if it could be shown that this matter was not before the Court in the original suit or could not with reasonable diligence on the part of the plaintiffs have been before the Court.

Sir Roland Braddell has, I think, correctly pointed out that the Supreme Court Rules, 1932, r. 1 sub-r 33, is based on the English O. 25 r. 4 with a material difference and that the Federal rule is or was the same as that pertaining in India, and therefore he has relied mainly on the question of perjury, to which I propose to address myself first on the Indian decisions.

In the case of Kunjabehari Chakrabarty v. Krishnadhone Majumdar AIR 1940 Cal. 489, at p. 492, the Court has stated : "It is now well set