Mohd. Yusof Abdul Rashid J:

The plaintiff claims that he had the right to rescind the written agreement executed on 21 May 1973 between he and the defendants in relation to the sale of land comprised in Grant No. 24358 Lot No. 6369 in the Township of Johore Bahru ("the said property") and is claiming for the refund of RM7,900 which he had paid as deposit towards the purchase price of the said property.

The facts of the case were:

The defendants on 17 February 1973 bought the said property for a sum of RM56,000 and gave an option to PW3 and another to procure a purchaser who was willing to buy it for RM79,000. PW2 was contacted by PW3 who informed her that the said property was for sale at that price. PW2 had the plaintiff interested in buying the said property. Evidently PW2 and PW3 knew about the existence of a large septic tank constructed on the land. Before agreeing to buy it, the plaintiff was brought to inspect the said property. The plaintiff was fully aware of the existence of a large septic tank on the said property and the said septic tank was obvious to the eye.

When the plaintiff showed interest in buying the said property at RM79,000, PW2, on the instruction of PW3, brought the plaintiff to the office of Messrs. Yeow & Chin, a firm of solicitors who acted not only as solicitors for the defendants but also, as admitted in the statement of claim, as solicitors for the plaintiff. The sale agreement which was in cyclostyled form was signed by the plaintiff and Mr. Shak Yin Chong who was duly authorised by the defendants to do so, in the presence of and witnessed by Mr. Chin Hon Ngian a partner in the said solicitors firm.

The particulars to be filled in the cyclostyled, sale agreement were typed in and one of the special conditions typed in it was in the following terms:

The purchaser hereby undertakes to permit the present and future users of the septic tanks within the said land to continue to use the said septic tanks without any interference whatsoever from the purchaser.

It is to be noted that the above terms were typed in after the signatures of the vendor and purchaser. On the margin there was an initial which appears to read as "Chin". According to DW1 the initial was that of Mr. Chin Hon Ngian which contention I have no reason to doubt. It is to be noted also that Clause 7 of the cyclostyled sale agreement was cancelled and on the margin there was an initial which appears to read as "Chin". In this instant, DW1 said that it was the initial of Mr. Chin Hon Ngian also. I have no reason to disagree. Finally, it is to be noted that the above terms bear a heading "Additional Clause" and for the sake of simplicity, the terms will be referred to as "Additional Clause" in this judgment.

The plaintiff contended that the said "Additional Clause" was not there when he signed the sale agreement and asserted that the defendants caused this "Additional Clause" to be introduced into the sale agreement without the plaintiff's consent and after the plaintiff had signed the said agreement. It was contended that the said "Additional Clause" was a vital covenant which would reduce the value of the said property. Had the plaintiff been aware that he was bound by such encumbrance, he would not have agreed to purchase the said property. By unilaterally causing the said "Additional Clause" being introduced, the plaintiff alleged that the defendants had committed a breach of the contract justifying the plaintiff rescinding the sale agreement.

The burden of proving that it was the defendants who had unilaterally caused the introduction of the "Additional Clause" into the sale agreement was indeed on the plaintiff. It would have been a straightforward and uncomplicated issue had the plaintiff been able to require Mr. Chin Hon Ngian to give evidence on his behalf. However, from the Bar, Counsel for the plaintiff intimated that Mr. Chin Hon Ngian was not available and that since Mr. Chin Hon Ngian had indicated to Counsel that h