Azahar Mohamed JC:

On 12 December 2003 the learned judicial commissioner struck out the plaintiff's suit pursuant to the powers conferred by O. 34 of the Rules of the High Court 1980 (the RHC) for non-compliance with the directions given by him on 19 September 2003 at the pre-trial case management conference with solicitors for the parties. For that reason, on 26 December 2003 the plaintiff took out this summons-in-chambers in encl. 39 to reinstate its writ and statement of claim.

On the appointed date of the hearing of the summons on 8 October 2004, it was agreed that I should first determine the following issue: whether the proper course of action to be taken by the plaintiff is by way of an appeal to the Court of Appeal against the order of 12 December 2003 or by an application by way of summons-in-chambers to reinstate the writ and statement of claim. It was the argument of learned counsel for the plaintiff that the proper mode in which the plaintiff should pursue this matter was by way of summons-in-chambers as in encl. 39. It was also argued that the suit was struck out on a technical ground and not on its merits. Further, learned counsel urged me to exercise my discretion and invoke the inherent powers to reinstate this suit. On the other hand, learned counsel for the defendant placed heavy reliance on Lim Oh & Ors v. Allen & Gledhill [2001] 3 CLJ 233 to support his argument that the learned judicial commissioner made a peremptory order on 19 September 2003 and that the suit was struck out for disobedience of that peremptory order. Hence, learned counsel for the defendant maintained that the plaintiff's application in encl. 39 was clearly wrong and that the plaintiff ought to have appealed to the Court of Appeal against the order of 12 December 2003.

I now turn to address the arguments that were advanced by both parties. In my view the answer to the issue that I have pointed out lies in the judgment of Steve Shim CJ (Sabah & Sarawak) in Lim Oh & Ors v. Allen & Gledhill [2001] 3 CLJ 233, where His Lordship speaking for the Federal Court said at p 239:

It is significant to note the following undisputed facts, namely, that there was an application by the appellants (as plaintiffs) to amend their writ of summons and statement of claim to include the respondent as a defendant in the 1st suit; that in consequence thereof, the court made an order granting the said application, the effect of which would require the appellants (as plaintiffs), as a matter of course, to comply with O. 20 r. 9 Rules of the High Court 1980 which stipulated that the amendment was to be made within 14 days from the date of the court order, otherwise the amendment would cease to have any effect; that the appellants had failed to effect the said amendment within the stipulated period and apparently without any explanation for such failure.

In our view, the factual circumstances in the instant case clearly indicate that it was not a situation where there was a mere failure on the part of the appellants to comply with the rules of court because quite obviously, there was in existence a specific court order directing the appellants to effect the amendments in compliance with the Rules of the High Court. It was in the nature of a peremptory order of the court and the appellants (as plaintiffs) had failed to comply with such a peremptory order.

And further down, His Lordship said:

Given the view which we take that there was clearly in existence a peremptory order of the court and that the learned senior assistant registrar had struck out the appellants' 1st suit for disobedience of that peremptory order, we agree with the Court of Appeal's conclusion that the appellants ought to have appealed against that decision and that the filing of the 2nd suit, containing as it did, the same issues and reliefs as the 1st suit, amounted to a deliberate attempt to circumvent the necessary appeal procedure and therefore constituted an abuse of the process of the