Gopal Sri Ram JCA:

[1] This is an appeal against the order of the learned Judicial Commissioner at Alor Setar, dismissing the appellant's suit for want of prosecution. We heard and allowed this appeal on 22 April 1996. The reasons for our decision now follow.

[2] The facts relevant to this appeal may be briefly stated. For convenience, we will refer to the parties as plaintiff and defendants.

[3] On 24 October 1990, the plaintiff bank caused to be issued a writ against the defendants, claiming a sum of RM263,917.96 which had been borrowed by the first defendant and guaranteed by the other defendants. The second, fourth and fifth defendants having delivered their respective defences, the plaintiff, on 15 March 1992 took out a summons under O 25 of the Rules of the High 1980, and, on 24 June 1992, obtained an order for directions. That order, inter alia, directed the parties to exchange their respective lists of documents within 30 days from its date. Surprisingly, however, the order made no provision for the setting down of the action for trial.

[4] Nothing further was done by the plaintiff to carry out the terms of the order. The lists of documents were not exchanged. Nor was the action set down for trial. In short, as is so often the case in civil litigation, the parties treated the order for directions with little or no respect. In consequence, the suit lay idle in the registry of the High Court for several years. The Court then moved suo motu to deal with the matter.

[5] On 26 January 1994, the High Court issued a notice under O 34, r 8(2) requiring the parties to attend before the Judicial Commissioner on 13 February 1994. When the suit was called on for disposal on that date, the plaintiff was present by its Counsel. The defendants and their Counsel were, however, absent. Counsel for the plaintiff explained that the matter had been overlooked and asked for a month to take the necessary steps to prosecute the action. The note recorded by the learned Judicial Commissioner shows that he then adjourned the matter to 19 March 1994. There was no peremptory order made requiring the plaintiff to act within a month. Neither does the note reflect any undertaking on the part of Counsel that the matter would be set down for trial within a month.

[6] For some reason (not readily apparent) the suit was not called on for disposal on 19 March 1994. However, it did come up in Chambers on 21 April 1994. On this occasion, Counsel for both the plaintiff and the second, fourth and fifth defendants were present. It transpired that the plaintiff's solicitors had filed the relevant papers for setting down the action for trial as well as the bundle of documents only on 14 April 1994. The learned Judicial Commissioner, after hearing arguments of Counsel, proceeded to dismiss the suit. He also refused an oral application for further argument in open Court, made by Counsel for the plaintiff pursuant to the rule of Court then in existence.

[7] When he came to write his reasons for his decision, this is what the learned Judge said:

The plaintiff did not file any affidavit in reply to the show cause notice. On the day of the hearing of the show cause (13 February 1994), the learned Counsel for the plaintiff, Cik Sofiah bt Ariffin, informed the Court that the delay was unintentional: there was some confusion regarding the files maintained by her firm in respect of this suit. Although no affidavit had been filed by the plaintiff in response to the show cause notice, and the explanation given, to my mind, was lacking in merit, nevertheless, on compassionate ground, I did not forthwith dismiss the action. Instead, I allowed the plaintiff to proceed subject to an undertaking by plaintiff's Counsel that she would set the action down for trial within a month's time. In order to ensure that the undertaking was complied with, I also ordered that the case be brought up again before me for mention on 19 March 1994. For some reason, however, the mention date was