All the parties to the above-mentioned suits agreed that the decision of this court in regard to Civil Suit No 22-155 of 1992 (the 1992 suit) would bind the parties in Civil Suit No 22-276 of 1991 (the 1991 suit). This magnanimous gesture by the parties have certainly reduce precious judicial time which should be emulated by all the legal practitioners at the bar. The thrust of the defence in the 1992 suit and the gravamen of the plaintiffs claim in the 1991 suit rest on fraud and fraudulent misrepresentation; these points will certainly be dealt with in this judgment at some length as can be seen later. For the purpose of this judgment, I shall focus my attention to the 1992 suit.

The plaintiff sued the defendant for vacant possession of a house at SQ No 27 Pandan New Village, Pandan, Johor Bahru which was built on a piece of land comprised in HS(D) 102093, Lot 1977, Mukim Tebrau, district of Johor Bahru (hereinafter referred to as the said premises). The defendant was the registered proprietor of the said premises and there was evidence that the plaintiff entered into a sale and purchase agreement with the defendant for the purchase of the said premises on 6 March 1990 as reflected in exh P2 for a sum of RM53,000. Paragraphs 1 and 2 of the statement of claim bore testimony to this and the plaintiff further sought pecuniary loss/damages arising from the defendants wilful refusal to deliver vacant possession of the said premises on 5 August 1990 at the rate of RM500 per month with effect from 5 August 1990 right up to the date when possession would be delivered to the plaintiff together with the ancillary interest and costs. The quantum was adverted to by the plaintiff when he took the stand and it was urged upon me that that was the appropriate and reasonable quantum to adopt and apply in the circumstances.

The plaintiffs case was fairly straightforward. The plaintiff testified that he executed exh P2 in the office of Messrs Mak Ng Shao & Kee and particularly in the presence of a solicitor by the name of Mr Kee Hun Kiet (SP3 -- Mr Kee). Incidentally, there was evidence that at that material time, the defendant, as the vendor of the said premises, was also present and she signed exh P2 in the presence of Mr Kee. It was an undeniable fact that Mr Kee took pains in explaining the contents of exh P2 to the vendor defendant in the Mandarin language -- the same language which the defendant used whilst testifying in open court. Mr Kee was cross-examined and he categorically stated in no uncertain terms at p 89 of the first segment of the notes of evidence to the effect that:

... I cannot describe the lady (referring to the defendant) as

illiterate. I felt I could communicate with her in Chinese Mandarin.

She understood my Chinese Mandarin and I understood her Chinese

Mandarin. We understood one another perfectly.

It is germane to pause and observe that the defendant who portrayed herself as an illiterate initialled all the pages in exh P2 legibly and this damning piece of evidence was not challenged by Encik Mohamed Hanipa bin Maidin, the learned counsel for the defendant in the 1992 suit; nor by Encik Noordin Hussin, the learned counsel for the plaintiff in the 1991 suit. These learned counsels took the correct course when they did not question the defendant in the 1992 suit in regard to those initials that appeared in exh P2 and they cannot now turn around to raise the plea of non est factum, for such a plea did not manifest itself in the pleadings (see the speech of Lord Edmund Davies in Farrell v Secretary of State for Defence [1980] 1 All ER 166 on the importance of pleadings as cited in Abdul Rahman bin Abdul Karim v Abdul Wahab bin Abdul Hamid [1996] 2 CLJ 455 especially at p 460). The plea of non est factum had its roots in 1584 as seen in the case of Thoroughgoods Case, Thoroughgood v Cole(1584) 76 ER 408. Speaking generally, a party who is of full age and capable o