Wong Kim Fatt J.C:

This is an application by the defendants which are licensed housing developers, for an order to discharge the ex parteinjunction restraining the defendants by themselves or by their servants or agents whosoever for agreeing to sell or selling or transferring or in any way dealing with the 100 pieces of land not purchased by the plaintiffs in the housing project in which the plaintiffs had by two written agreements purchased a total of 85 housing lots of land. When the application came up for hearing before me on 2 April 1982, learned counsel for the plaintiffs raised a preliminary objection that I had no jurisdiction to hear it on the that it was first heard by Abdul Razak J, who had not given his decision. Learned counsel for the defendants submitted that the plaintiffs had filed fresh affidavits for hearing before me. He referred to O. 35r. 11 of the Rules of the High Court 1980, and submitted that the learned Judge had not concluded the case, and that I had jurisdiction to hear the application.

The short answer to that objection is that upon his transfer from Seremban to Kuala Lumpur Abdul Razak J had indicated through his Secretary, who had minuted the file accordingly, that he was unable to conclude the case. I had spoken to the learned Judge personally on 31 March 1982 and he indicated that I should hear this application afresh. In my opinion this case falls within the scope of `other cause' in 35 r. 11.Accordingly, I ordered the application to be heard de novabefore me based on the affidavits filed in Court.

The background to the present application may be stated briefly as follows. By an agreement in writing dated 24 November 1976, entered into between the defendants as vendors and the plaintiffs as purchasers, the plaintiffs purchased 60 terrace building lots in that piece of undivided land known as Lot 3962, held under Grant No. 15907, Mukim of Rasah, District of Seremban, measuring approximately 50 acres, subject to the terms and conditions contained in the agreement. By another agreement in writing of the same date between the same parties, the plaintiffs agreed to purchase another 11 bungalow building lots and 14 detached building lots respectively in the said Lot 3962, again subject to the terms and conditions in the agreement. It is not in dispute that under these two agreements, the plaintiffs had paid the sum of RM472,000 as land purchase price and another sum of RM674,300 as land development price. The defendants subsequently applied for and obtained sub-division and qualified titles to the said Lot 3962. A dispute arose between the parties in respect of the 85 lots purchased by the plaintiffs concerning the interpretation of certain clauses of the two agreements, which should be dealt with at the trial of the suit.

The plaintiffs then entered a private caveat in respect of all the said 85 lots. The defendants, however, did not dispute that the plaintiffs had caveatable interests in these 85 lots. Accordingly, the defendants did not apply or take any steps to remove the caveat. The plaintiffs also maintained that they had registrable interest in respect of the said 100 lots of land and they accordingly entered private caveats in respect of all these 100 lots not purchased by them but to which they claimed an interest because they contended that the defendants were liable under the agreements to offer these lots in substitution of the 85 lots should any of these 85 lots be not acceptable by the plaintiffs. The defendants then applied to this Court by Origination Motion No. 31 of 1980 for the removal of the caveats in respect of the 100 lots. The application came up for hearing before Ajaib Singh J, who stated that he had no difficulty in arriving at the conclusion that the defendants were entitled to an order for the removal of the caveats on the 100 lots which were not sold to the plaintiffs. The reasons for removing the caveats were stated in the judgment of the learned Judge as f