Shaik Daud Ismail JCA:

[1] This is an appeal from the decision of the Penang High Court which had on 30 May 1996 dismissed the appellants' writ of summons and statement of claim for want of prosecution on the ground that the appellants had not set down the matter for trial pursuant to O 25 r 1(1)(b) of the Rules of the High 1980 within one month from the close of pleadings.

[2] The four appellants, of whom three are outside the jurisdiction of the Court, filed a writ of summons and statement of claim on 15 January 1993 for various declaratory judgments against the respondent. The facts leading to the filing of the writ are that the appellants and respondent are children of one Mohamed Mydin Merican, now deceased, having died on 12 October 1991. The deceased was the legal owner of a parcel of land known as Lot 465, Sek. 11-W Daerah Timur Laut, Georgetown Pulau Pinang with nine houses erected thereon. On or about 2 February 1968 the said Mohamed Mydin Merican, during his lifetime, transferred the said property as a gift to the respondent, who was then eight years old. At the same time the deceased created a trust deed declaring a trust in favour of the respondent. Upon the death of the deceased, the respondent applied by an originating summons for a vesting order of the said property on himself. The appellants through their solicitors filed the said writ, and also obtained an injunction restraining the respondent from disposing of the said property. The grounds relied upon by the appellants are that they are beneficiaries of the said estate of the deceased, and that the said property fails as a gift under Islamic Law and therefore the appellants are entitled to a share in the said property and that an injunction is necessary to maintain the status quo.

[3] The respondent filed a summons in chambers on 31 March 1993 for an order that the injunction granted on 16 January 1993 be set aside which application was dismissed. The respondent then filed their statement of defence on 14 April 1994 and thereafter on 21 April 1994 an amended statement of defence.

[4] Pursuant to O 25 r 1(1)(b) of the Rules of the High 1980 , in all actions begun by writ, the plaintiff must, within one month after the pleadings in the action are deemed to be closed, take out a summons for directions, failing which sub-r. (4) provides that the defendant may do so or may apply for an order to dismiss the action. The record of appeal shows that on the application of the respondent, the Court had on 22 June 1995 admitted the statement of defence and the amended statement of defence which were filed on 14 April 1994 and 21 April 1994 respectively. Therefore for all intents and purposes the pleadings were deemed to have been closed on 22 June 1995. The summons for directions should, therefore, have been taken out by the appellant on or before 21 July 1995. It is not disputed that the appellants failed to do so. Nine months thereafter, on 8 March 1996, the respondent's solicitors wrote to the appellants' solicitors requesting them to take out the summons for directions within seven days failing which the respondent's solicitors would apply for the action to be struck out for want of prosecution. Having been so reminded, the appellants again failed to do so. Instead of acceding to the request, the appellants made an application by summons in chambers for an originating summons No. 24-553-92 to be heard together with their action. On 30 March 1996 the respondent filed this summons in chambers to strike out the appellants' action.

[5] Whether to grant or refuse an application to strike out an action for want of prosecution, is solely the discretion of the trial judge. It is a well-settled principle that an appellate Court should not readily interfere with such an exercise of discretion. The Federal Court in Vasudevan v. T Damodavan & Anor, [1981] 2 MLJ 150; [1981] CLJ 101 stated that it will not interfere with the exercise of discretion of a trial judge in an ap