Gopal Sri Ram JCA:

[1] This case has a long and chequered history. However, the record provided has none of the relevant cause papers nor indeed a complete chronology of all the relevant events that transpired in the action. We have therefore, ex abundanti cautela, and in the interests of justice, called for and examined some of the cause papers and the minutes in the files of the two civil suits to ascertain what had actually transpired between the date of issue of the writ and the more recent events to which the appellant has attempted to restrict us in the consideration of this appeal.

[2] It all began when, in 1982, the appellant (whom we shall, throughout this judgment, refer to as "the Bank") issued a writ against the respondents in Civil Suit No: 127/82. Initially, the Bank displayed a great deal of interest in the matter. It obtained several orders, including an order for early trial. That order was made by Ajaib Singh J (as he then was) as long ago as 2 July 1982. Later that year, on 20 November 1982, the Bank obtained an order for directions, including an order consolidating Suit 127/82 with Suit 135/82. But the Bank's initial interest in the matter appears to have waned.

[3] Thus, although it obtained an order for directions in November 1982, it took no steps to extract the order made on its application. Ultimately, it was the respondents' solicitors who extracted that order. Further, the Bank did nothing to act upon the order for early trial made in July 1982. And for the best part of ten years, the consolidated suits lay dormant.

[4] Not unnaturally, the respondents were keen on putting a speedy end to the litigation that was hanging over their heads. So, in 1992, they applied to have the actions struck out, but failed before Ong See Seng J. An appeal by them to the Supreme Court (which was heard on 27 April 1993) also proved unsuccessful. However, the Supreme Court when dismissing their appeal made the following additional order:

And it is further ordered that the trial of the consolidated suits in the High Court be heard before another Judge within one month: (in May 1993) and in the event the respondent fails to comply with this order then the consolidated suits in the High Court be struck out with costs here and below.

[5] Even this order was not timeously extracted by the Bank's solicitors. In the end, it was the respondents' solicitors who extracted it. There is some correspondence upon it to which we will refer momentarily.

[6] Returning to the chronology of events, the Bank, purporting to act on the order of the Supreme Court, wrote to the secretary to Mohtar Abdullah J, the then senior Judge in the High Court at lpoh, a letter dated 5 May 1993, which, when shorn of its formalities reads as follows:

We act for the respondents (plaintiffs) in the above matters, respectively. We also refer to the letter dated 11 July 1989 (ref: [119] Civil Suit No: 127-1982, copy enclosed) from the High Court, lpoh.

[7] The above appeals to the Supreme Court were heard on 27 April 1993 in Ipoh. The Supreme Court dismissed the appeal in respect of "want of prosecution", and stated that steps be taken to fix the suit for hearing in May 1993 before the High Court, Ipoh, failing which the appellants (defendants) are at liberty to strike off the suit for want of prosecution (by making a 2nd such application against our clients).

[8] In the circumstances, we earnestly appeal to His Lordship to fix the suit for hearing this month.

[9] We shall appreciate very much your prompt attention on the matter.

[10] On 13 May 1993, the respondents' solicitors wrote to the Bank's solicitors a letter which contains the following material paragraphs:

We refer to the above matters and the letter dated 5 May 1993 addressed to the Private Secretary to His Lordship, the High Court Judge in lpoh a carbon copy of which was extended to us on 11 May 1993.

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