Hamid Sultan Abu Backer JC:

[1] This is my judgment in respect of the appellant's/plaintiff's appeal (encl. 71) against the decision of the learned deputy registrar allowing the respondent's/defendant's application encl. 31 to strike out the plaintiff's claim for want of prosecution, pursuant to O. 25 r. 1(4), O. 34 r. 2(2), O. 27 r. (3) and/or inherent jurisdiction of the court.

[2] The grounds of the application for encl. 31 of the respondent was that:

(a) no notice of trial has been given, no summons for directions has been issued and no discovery made; (b) no steps have been taken to set down the action for trial; (c) the plaintiff's default has been intentional and contumelious; and (d) there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers giving rise to a substantial risk that a fair trial would not be possible or cause serious prejudice to the defendants.

[3] In opposing encl. 31, the plaintiff has filed an affidavit, inter alia, stating that:

(a) writ and statement of claim was issued on 9 May 2003. They were amended on 27 May 2003. Memorandum of appearance was filed on 29 May 2003. By consent, defence and counterclaim was filed on 24 June 2003. On 16 July 2003 reply and defence to counterclaim was filed.

(b) the defendant has not filed a reply to defence and counterclaim till date.

(c) plaintiff on 29 May 2003 filed application for specific performance. A number of affidavits were filed by both parties.

(d) on 27 August 2003, at the hearing of the application before the court, the plaintiff's and the defendant's counsels conceded that from the pleadings and affidavits filed herein, there was triable issues in respect of sublots 22 and 23 and that these triable issues could only be resolved at the trial proper, but that the plaintiff was entitled to specific performance in respect of sublots 24 and 25. Accordingly, on 27 August 2003, by consent, the court ordered, inter alia, that "the defendant shall deliver the titles to all the Parcels in Sublots 24 and 25 of Lot 9681 Block 11 Muara Tebas Land District together with the Memoranda of Transfer and all other incidental documents to transfer the ownership of Sublots 24 and 25 to the plaintiff within fourteen (14) days from the sealing of this order", without prejudice to the defendant's defence, assertions and stand in respect of sublots 24 and 25.

(e) the period from 27 August 2003 when the order of court was given to 26 October 2004, was preoccupied with the implementation of the order of court in exploring alternative resolution to the dispute between the plaintifff and the defendant in respect of sublots 22 and 23.

(f) on 26 October 2004, the defendant's advocates wrote to the advocates of the plaintiff, indicating no possibility of alternative resolution to the dispute.

(g) on 18 November 2004, the plaintiff filed the Originating Summons No. 24-492-2004-III(II) applying for an order to remove caveat instrument No. 11367/2002 registered at the Kuching Land Registry Office on 6 June 2002, and lodged by the defendant against his land. Various affidavits were filed by both parties. On 7 March 2005, the court gave the order to remove the said caveat.

(h) in consequence of the circumstances stated above, the requirement to take out the summons for directions and notice to attend pre-trial case management was overlooked. The oversight was neither intentional nor contumelious, and in the circumstances of the case, the delay is not inordinate or inexcusable such as to give rise to a substantial risk that a fair trial would not be possible or will cause serious prejudice to the defendant.

[4] The defendant in his supporting affidavit for encl. 31, inter alia, states that:

(a) there was no necessity to file a reply merely to deny the allegations contained in the defence to counterclaim as the Rules of High Court provide that there is a joinder of issue on the defence and that pleadings are deemed to be closed.

(b) the order dated