The court upheld that silence in response to a draft order indicated concurrence, affirming the High Court's procedural rulings and dismissing the appeal.

Shaik Daud Ismail JCA:

This appeal came up for hearing before us on 23 September 1998 and we reserved our decision whereby on 24 September 1998, we dismissed the appeal with costs. In order to appreciate our dismissal of this appeal, it is pertinent for us to set out in detail the events which led up to this appeal.

Nadchatiram Realities (1960) Sdn. Bhd. a company incorporated on 10 November 1960 by the late Mr. Nadchatiram s/o Muttucumaru and Madam Kanala Devi Nadchatiram, was compulsorily wound up on 5 September 1989 in the Seremban High Court. On 1 August 1990 the first respondent Mahadevi a/p Nadchatiram, as plaintiff, issued an originating summons against the second respondent Jegadevan a/l Nadchatiram for delivery of the title in respect of land held under certificate of title No. 16143 Lot No. 2484 Mukim of Rasah, Seremban, the memorandum of transfer issued on 16 May 1980 by the first appellant and the original declaration of trust created on 16 May 1980 by the late Mr. Nadchatiram s/o Muttucumaru on the ground that the first appellant held the subject land in trust for her.

The second appellant, a shareholder of the first appellant applied and was added as an intervener on 4 February 1991. Subsequently the first respondent amended the originating summons to add the first appellant (in liquidation) as a co-defendant. The order was granted on 27 September 1991.

The second appellant caused the first appellant to file a civil suit against the first respondent to declare null and void the declaration of trust.

On 23 December 1991, the Seremban High Court ordered the consolidation of the originating summons and the civil suit and both to proceed as one action and to be tried simultaneously.

The hearing of this consolidated matter commenced in the Seremban High Court on 30 September 1992. At the adjourned hearing on 22 February 1993 at the behest of learned counsel for the first respondent and agreed to by the learned counsel for the appellant, the originating summons in respect of the validity of the declaration of trust was to be heard first. Both parties agreed that the hearing be confined to the issue of the validity of the declaration of trust, as a preliminary issue. Thereafter the trial proceeded accordingly.

At the conclusion of the trial on 29 March 1994, the learned judge declared the trust to be valid. Not being satisfied with the learned judge's order, the appellants appealed to the then Federal Court on the same day ie, 29 March 1994. The appeal was heard in the Federal Court and dismissed on 30 October 1996 but the Federal Court remitted the matter back to the same High Court judge "untuk menentukan perintah berbangkit dalam guaman sivil dan guaman pemula" (to determine consequential orders raised in both the civil suit and the originating summons). There then arose a serious dispute as to what actually the Federal Court meant when it remitted the matter to the High Court, with the appellants contending that there ought to be a trial on the remaining issues while the respondents contending that the Federal Court remitted the matter back for determination of the consequential issues only. This finally resulted in the appellants filing a motion in the Federal Court on 24 April 1997 for a clarification of its order dated 30 October 1996. The motion came up for hearing in the Federal Court on 24 November 1997 but was adjourned until the disposal of the present appeal.

Before the resumption of hearing in the High Court, the appellants filed an application on 17 March 1997 in the consolidated proceedings to amend the counterclaim in the suit. This resulted in several fresh affidavits being filed by both parties. Then again on 27 March 1997, the appellants filed an application for a stay of hearing of the consolidated proceedings pending the clarification of the order in the Federal Court. This too resulted in several affidavits from both parties.

Finally on 11 April 1997 the proceedings resumed in the