JUDGMENT:

This is an application (Encl.60) by the plaintiffs under O.18 r.19(1) of the Rules of the High Court (RHC) to strike out the defence of the defendants.

A preliminary objection is raised by the defendants' Counsel based on the following grounds:

(1) by the principle of approbation and reprobation, the plaintiffs are estopped from proceeding with this application and;

(2) the plaintiffs have delayed in making this application.

In order to decide on this issue, a brief outline of the history of this case is necessary.

On 21 September 1990 the plaintiffs filed a writ of summons against the defendants which lead to the defendants entering their statement of defence. On 9 January 1991, an application (Encl.7) was filed by the plaintiffs for:

(a) an order to strike out the defendants' defence under O.18 r.19 RHC "and/or"

(b) for summary judgment against the defendants under O.14 RHC.

When this application came up for hearing before the Senior Assistant Registrar (SAR) in the High Court at Shah Alam, the defendants' Counsel insisted on the plaintiffs making an election either to proceed under O.18 r.19 RHC or under O.14 RHC. This approach was accepted by the SAR who relied basically on the High Court authority in Wagon Engineering Sdn Bhd v. Sulaiman Buloh Semenanjung Enterprise Sdn. Bhd.[1988] 1 MLRH 495, [1988] 2 CLJ 861. Upon this, the plaintiffs' Counsel elected to proceed with his application under O.14 RHC whereupon the SAR struck out the first prayer of the plaintiffs' application for O.18 RHC.

The application of the plaintiffs under O.14 was duly heard, but was dismissed by the SAR based on technical ground where the plaintiffs had erroneously inserted in their application O.14(1) instead of O.14(2) RHC.

A fresh application under O.14(2) RHC was filed by the plaintiffs but after being heard by the SAR was duly dismissed. Dissatisfied with this, an appeal was lodged to the Judge of the High Court but unfortunately it was filed out of time, consequently this appeal was dismissed.

Obviously believing strongly that they have good grounds to support a summary judgment, the plaintiffs filed once again this fresh application under O.18 r.19(1) RHC. This drew strong preliminary objection from the defendants on the grounds as stated above.

Subsequent to the High Court decision in Wagon Engineering Sdn. Bhd. 's case, the Court of Appeal in Mohd. Azam Shuja & 4 Ors. v. UMBC [1995] 3 AMR 2175, have authoritatively affirmed that in an application for summary judgment by the plaintiff made together or in the alternative in the nature of an O.14 and/or O. 18 RHC, an election must be made by the plaintiff as to which of the two he prefers to proceed upon; there cannot be a hearing of both applications at the same time. (Though Mohd. Azam's case involves applications made under O.26A and O.14 r.21 of the Subordinate Courts Rules, such applications are virtually identical to O.14 and O.18 r.19 RHC). From the facts of this instant case, the plaintiffs had elected O.14 RHC, but when they failed can they still return and file a fresh application under O.18 RHC?

It is the defendants' contention that the plaintiffs are estopped under the principle of approbation and reprobation. According to Halsbury's 4th Edn., Reprint Vol.16 at para.957, this principle expresses two propositions:

firstly, that the person in question, having a choice between two courses of conduct, is to be treated as having made an election from which the cannot resile; and

secondly, that he will not be regarded, in general at any rate, as having so elected unless he has taken a benefit under or arising out of the course of conduct which he has first pursued and with which his subsequent conduct is inconsistent.

Judging from the facts that had transpired, it leaves little doubt that this principle of approbation and reprobation is applicable in this instant case. Though the plaintiffs' Counsel has seemingly agreed that these propositions do apply, but he contente