JUDGMENT

Mokhtar Sidin JCA:

The respondent filed two separate actions against the appellant in the High Court of Malaya at Kuala Lumpur. The first suit, No. D3-22-273-93 (hereinafter referred to as " the first suit " ) was dated 11 March 1993. In the first suit there were four defendants of which the appellant was named as the fourth defendant. According to the writ and the statement of claim in the first suit the first defendant was MBf Securities Sdn Bhd; the second defendant was an individual by the name of Aliah bt. Mohd Yasin and the third defendant was also an individual by the name of Ang Cheng Kim. Apparently, the second and third defendants not only counterclaimed against the respondent but also filed separate actions in the High Court of Malaya at Muar. The appellant was not involved in the counterclaims and the suits in the Muar High Court. The second suit filed by the respondent against the appellant is Civil Suit No. D5-22-1175-93 (hereinafter referred to as " the present suit " ) dated 18 October 1993. The appellant is the only defendant in the present suit which is the present appeal.

It is not disputed that as against the appellant the subject matter in both suits are the same. The difference is the relief claimed by the respondent. It is also not disputed that in both suits the appellant has been sued as the Registrar of Aokam Perdana Berhad, a public listed company. The respondent in both suits claimed that they were the registered owner of 900,000 of Aokam Perdana Berhad (APB) shares (hereinafter referred to as " those shares " ). Sometime on 4 August 1992, the respondent sent over the scripts for those shares to the appellant with instruction to split those shares into 1,000 shares per lot in the name of their nominee. By a letter dated 5 August 1992, MBf Securities Bhd informed the appellant that they were the beneficial owner of the 900,000 shares and those shares had been lost and a police report had been lodged. Subsequently, the police seized those shares from the appellant. By letters dated 5 August 1992 and 6 August 1992, the respondent requested for the return of those shares but the appellant was unable to do so because the shares had been seized by the police. It was not disputed that the appellant informed the respondent of this. Eventually, the respondent was informed that the police had returned those shares to the appellant but the appellant was unable to split and register those shares in the name of the respondent's nominee because of the dispute in respect of the ownership of those shares between the respondent and the other three defendants in the first suit. The ownership of those shares was finally determined by way of a consent order dated 2 November 1993. This consent order was in respect of the first suit of which the appellant was also a party. In the consent order it was also ordered that the other suits in the Muar High Court were to be discontinued. It is not disputed that the present suit was not stated in the consent order.

By a summons-in-chambers dated 24 December 1993 the respondent filed an application to amend the writ and the statement of claim. The appellant, on the other hand, applied to strike out the present suit through its application by way of summons-in-chambers dated 29 January 1994. On 14 June 1994 the deputy registrar heard the summons-in-chambers dated 24 December 1993 and allowed the application by the respondent to amend the writ and statement of claim in respect of the present suit. The appellant then appealed against that decision to the Judge in chambers. The learned Judge heard the appeal on 8 November 1995 and dismissed the appeal. Being dissatisfied with that decision the appellant appealed to this court. Apparently, from the submissions by both parties and the judgment of the learned judge, the appellant in opposing the application by the respondent to amend the writ and the statement of claim also raised the issues in their application to strike out t