JUDGMENT

Haji Abdul Kadir Bin Sulaiman J:

Introduction:

This is an application by the defendants to dismiss the plaintiffs' action for want of prosecution pursuant to O. 25 r. 1(4), O. 34 r. 8(1) of the Rules of the High Court 1980 (RHC) and under the inherent jurisdiction of the Court. The Court has an inherent jurisdiction to dismiss an action for want of prosecution where there is default in compliance with an order of the Court or where the plaintiff is guilty of excessive delay in the prosecution of the action (see White Book 1979, Vol. 1 at p. 431).

The application arose out of a writ of summons taken out by the plaintiffs in the Civil Division, High Court of Malaya at Kuala Lumpur and registered as Suit No. S5-23-7 of 1988 for alleged breach of contract for the supply of batching concrete by the plaintiffs as subcontractor to the defendants as the main contractor. The plaintiffs claim special damages amounting to RM258,662.14, general damages, interest and other relief. It was alleged in the statement of claim that the defendants terminated the said contract vide letter dated 7 April 1987. The writ was issued on 7 January 1988 i.e. 7 months after the breach by the defendants and the defendants filed their defence and counterclaim on 21 June 1988. Surprisingly, records indicate that the plaintiffs filed their reply and defence to counterclaim on 12 May 1988 i.e. before the defendants' defence and counterclaim were filed. Be that as it may, on 10 March 1988, that is prior to the filing of the defendants' defence, the defendants had by way of summons in chambers already applied for the suit to be transferred to the High Court of Borneo at Kuching on the ground that the cause of action, if any, arose in Kuching, Sarawak. The said application was heard on 8 June 1989 and by a Court order of the same date, the suit was ordered to be transferred to the High Court here. However, it was only in late January 1990 that the learned Senior Assistant Registrar, Civil Division, High Court Kuala Lumpur transmitted the case docket to the High Court at Kuching along with a letter dated 23 January 1990 a copy of which was extended to the solicitors for both the parties. The docket reached the Kuching High Court registry on 1 February 1990. Notwithstanding the defendants' application for the transfer of the suit to the Kuching High Court made on 10 March 1988, the defendants made an identical application to the High Court at Kuala Lumpur for the transfer of the suit to Kuching by summons in chambers dated 29 July 1988. This second application came up for disposal in the Kuala Lumpur High Court on 27 November 1989 but as both parties were absent, the matter was struck off. On 19 December 1988 i.e. before the order for the transfer of the case to Kuching made on 8 June 1989, the plaintiffs applied to the Kuala Lumpur High Court for summons for directions under O. 25 of the RHC. The matter came up for disposal on 16 March 1989 where the Court ordered that the suit be set down for trial within 60 days which expired on 26 May 1989. It is to be noted that by the date of expiration no order for the transfer of the suit to Kuching had yet been made. However the plaintiffs had not set the suit down for trial as ordered despite the lapse of more than 4 years from the date of the defendants' application. It is based on this ground that the defendants invited the Court to exercise its discretion to have the suit dismissed for want of prosecution.

The issues:

Before going further to determine the matter, I wish to dispose off part of the matter contained in the application of the defendants herein. The defendants have prayed that this suit be dismissed for want of prosecution in contravention of O. 25 r. 1(4) of the RHC. This order concerns the failure on the part of a plaintiff to take out a summons for directions. As a summons for directions has been taken out in this case, the question of the Court exercising its power of dismissal under O. 25 r.