Zulkefli Makinudin JCA:-

[1] There are two (2) notices of motion filed by the appellants fixed for hearing before us. Essentially, the appellants under the respective notice of motions are applying to this court for an order that the proceedings in the High Court of Kuala Lumpur Civil Suit No. D4-22-1149-1993 be stayed pending the disposal of the Court of Appeal, Civil Appeals No. W-02-738-2005 and W-02-968-2005 filed by the appellants. There is also a pending appeal before the Court of Appeal filed by the respondents in Civil Appeal No. W-02-653-2005.

[2] The first appellant is the second defendant and the second appellant is the third defendant in the Civil Suit No. D4-22-1149-1993 filed by the respondents in which the first respondent is the first plaintiff and the second respondent is the second plaintiff. We shall refer the parties as they were in the proceedings before the High Court.

[3] At the outset of the hearing before us, by consent of the parties, the said two notices of motion under Civil Appeal No. W-02-738-2005 and Civil Appeal No. W-02-968-2005 were treated as appeal proper and heard together with the pending Civil Appeal No. W-02-653-2005. The parties also agreed that due compliance with the Rules of the Court of Appeal 1994 relating to appeal be dispensed with.

[4] To have a better understanding of all the matters and issues arising under the said three appeal cases, we would narrate a brief summary of them as follows:-

i. The first and second plaintiffs, commenced the Civil Suit No. D4-22-1149-1993 in the Kuala Lumpur High Court ("the said High Court action") on 13 October 1993 against the first, second and third defendants seeking, inter alia, an order that the second and third defendants transfer the trade mark "Indomie" to the first plaintiff. The second and third defendants filed a defence on 19 November 1993 to which the plaintiffs filed a reply on 24 November 1993. The first defendant, which did not file a defence had default judgment entered against it and was subsequently ordered to be wound up.

ii. Though pleadings were deemed to be closed on 8 December 1993, the plaintiffs never filed a summons for directions or set the action down for trial.

iii. About nine years after the commencement of the suit ie, on 22 October 2002, the plaintiffs' solicitors filed an application purportedly on behalf of the parties named as the first and second plaintiffs and PT Indofood Sukses Makmur Tbk ("Sukses Makmur") to substitute Sukses Makmur for the said first and second plaintiffs on the grounds that:-

(a) Sukses Makmur had taken over the rights and liabilities of the first and second plaintiffs pursuant to a purported merger in Indonesia; and

(b) the first and second plaintiffs had been dissolved and liquidated as at 1 March 1994.

iv. The second and third defendants meanwhile filed an application on 1 November 2002 to strike out the plaintiffs' action for want of prosecution. The said application was dismissed by the learned deputy registrar on 28 May 2004.

v. On 25 June 2004 the learned deputy registrar allowed the application for substitution. The second and third defendants filed an appeal against the said decision to the judge in chambers who on 25 April 2005 allowed the said appeal by the second and third defendants as there was insufficient evidence to show that Sukses Makmur had taken over all the rights, obligations, assets and liabilities of the first and second plaintiffs. Further, important documents in connection with that issue were not adduced in evidence by the plaintiffs and Sukses Makmur who would have had possession of the same.

vi. When the appeal was first heard before the judge on 22 March 2005, the learned judge directed that further evidence to be adduced to support the application for substitution. The solicitors for the second and third defendants had written to the court, via letter dated 22 March 2005, objecting to the further evidence being adduced at the hearing of the appeal