Abdul Malik Ishak J:

[1] A preliminary objection is raised by Azad Basher Abdul Karem Bashir, the learned Counsel for the second defendant, to the effect that proceedings in which an alternative allegation of fraud is involved must be begun by writ and not by way of originating summons. Mr Sowaran Singh, the learned Counsel for the plaintiff, argues to the contrary and he says that the procedure is perfectly in order and is not fatal to the continuance of the action.

[2]Order 5 r 2(b) of the Rules of the High 1980 ('RHC') provides (the relevant part material to this judgment) that proceedings in which a claim made by the plaintiff is based on an allegation of fraud must be begun by writ. In Re 462 Green Lane, Ilford Gooding v. Borland [1971] 1 All ER 315, Ungoed-Thomas J had to deal with two pleas, first, of non est factum and, secondly, of fraud which proceeded by way of originating summons. The issue before his Lordship was whether proceedings involving alternative allegation of fraud should essentially be begun by writ or whether it may continue as though commenced by writ. This was what his Lordship said at p 317 after referring to the case of Re Engall's Agreement [1953] 2 All ER 503; [1953] 1 WLR 977:

In those circumstances, therefore, in this case there must be pleadings; there must be discovery; the action must be at least continued as though it had begun by writ. This is not a technicality; it is most important matter of substance because it is only by this means that the parties can see perfectly clearly what are the serious issues involved and be sure of having made available to them by discovery all the relevant documentary evidence which generally plays such an important part in these cases. Commencing the proceedings by writ would in the circumstances of this case involve only the very small additional expenditure of issuing the writ, and on the rules as they stand it seems to me that the requirement does exist that, whereas here there is an allegation of fraud, the proceedings must be so started and cannot be continued as though commenced by writ when in fact commenced by originating summons.

[3] [1970] 1 MLRH 172, [1971] 1 MLJ 112, involved an application by way of originating motion for an order that a date be fixed by the Court within which an undertaking given by the respondent, a solicitor, to the applicant, can be completed. On these facts the Court had to deal with the crucial question of whether the application by way of originating motion was proper or whether it should be made by way of a writ. Syed Agil Barakbah J answered that crucial question in this way (at p 114):

However, the affidavits contain questions of facts which are disputed and involve allegations of fraud and implied misconduct not only against the respondent but against a third party. Where fraud is alleged it has long been the practice in countries where the English system of law operates for the Courts, in civil cases, to require proof of a high standard (per Azmi CJ (as he then was) in Ratna Amal v. Tan Chow Soo, [1967] 1 MLJ 296 quoting Rose CJ in Nederkandsche Handel- Maat-schappij N V (Netherlands Trading Society) v. Koh Kim Guan; [1959] 1 MLJ 173, 175. It follows therefore that parol evidence becomes necessary.

[4] In E'singam v. Dr Sundram & Ors, [1960] 1 MLJ 91, Adams J was faced with an application by way of interlocutory injunction, inter alia, to declare that the annual general meeting of the Football Association of Selangor was ultra vires the rules of the association and therefore void and of no effect. In a short judgment his Lordship said this:

The granting of interlocutory injunctions is provided for under O 50 r 6 of the Rules of the Supreme Court. It is quite impossible to have an interlocutory injunction unless there is a suit pending nor is it possible for the Court to decide the other issues in the notice of the motion.

The relief that the applicant is asking for in these proceedings can only be decided after t