JUDGMENT:

This is an application (Encl.60) by the plaintiffs under O.18 r.19(1) of the Rules of the High Court (RHC) to strike out the defence of the defendants.

A preliminary objection is raised by the defendants' Counsel based on the following grounds:

(1) by the principle of approbation and reprobation, the plaintiffs are estopped from proceeding with this application and;

(2) the plaintiffs have delayed in making this application.

In order to decide on this issue, a brief outline of the history of this case is necessary.

On 21 September 1990 the plaintiffs filed a writ of summons against the defendants which lead to the defendants entering their statement of defence. On 9 January 1991, an application (Encl.7) was filed by the plaintiffs for:

(a) an order to strike out the defendants' defence under O.18 r.19 RHC "and/or";

(b) for summary judgment against the defendants under O.14 RHC.

When this application came up for hearing before the Senior Assistant Registrar (SAR) in the High Court at Shah Alam, the defendants' Counsel insisted on the plaintiffs making an election either to proceed under O.18 r.19 RHC or under O.14 RHC. This approach was accepted by the SAR who relied basic