JUDGMENT

Lim Beng Choon J:

The sole question posed to this Court is whether the plaintiff was entitled to discontinue this action commenced by it against the 1st defendant thereby depriving the 1st defendant the rights allegedly already accrued to it in its summons to set aside the injunction obtained by the plaintiff on 4 March 1988.

In order to understand the issues which give rise to the aforesaid question it is necessary to refer briefly to the history of the proceedings leading to the application of the 1st defendant to set aside the said injunction.

On 7 July 1987 the plaintiff instituted an earlier suit dated 7 July 1987 (the first suit) naming Marplan Sdn. Bhd. as the sole defendant. The plaintiff was a specialist subcontractor appointed by the defendant who in turn was the nominated subcontractor of the Selangor State Mosque at Shah Alam. The plaintiff had completed all works and the Architect Jurubena Bertiga International had issued some progress payment certificates to Bina Goodyear Sdn. Bhd. and the plaintiff therefore claimed the money due to them under the certificates. Simultaneously with the filing of the first suit, the plaintiff also applied and obtained an interim injunction by which Bina Goodyear Sdn. Bhd. was restrained from paying all monies that were due or became due and payable to Marplan Sdn. Bhd. up to the sum of RM2,754,895.50. The injunction order appears in the appeal record of the Supreme Court of Malaysia (Appellate Jurisdiction ) Civil Appeal No. 502 of 1988 (hereinafter referred to as the appeal record) at p. 16. On 15 July 1987 Marplan Sdn. Bhd. applied by way of summons-in-chambers to set aside the injunction of 7 July 1987 and also to stay the proceedings pursuant to s. 6 of the Arbitration Act 1952. The prayers to set aside the injunction was dismissed by the trial Judge and Marplan Sdn. Bhd. appealed to the Supreme Court against the decision of the trial Judge. When the appeal came on for hearing before the Supreme Court on 11 March 1988 the Supreme Court allowed the appeal on the ground that the High Court had no power to grant an injunction to restrain Bina Goodyear Sdn. Bhd. from paying out the monies when it was not a party to the action. Thereafter on 14 March 1988 the plaintiff filed a notice of discontinuance of the first suit and at the same time commenced this suit naming Marplan Sdn. Bhd. as the 1st defendant, Bina Goodyear Sdn. Bhd., the 2nd defendant and Jurubena Bertiga International as the 3rd defendant. The reliefs sought as against the 1st defendant was payment of RM2,754,595.50 for works done under the specialist subcontract and as against the 2nd defendant an order directing it to pay the plaintiff directly all sums certified by the 3rd defendant and finally as against the 3rd defendant an order directing them to value and certify all amounts due from the 1st defendant to the plaintiff under progress payment certificates Nos. 40 to 44. Again on the same day the plaintiff applied by way of ex parte summons-in-chambers for an injunction directing that the funds in the banks of the 2nd defendant and due to the 1st defendant for works executed in respect of the State Mosque Shah Alam up to the sum of RM2,754,595.50 be preserved in the 2nd defendant's custody pending further order of this Court (see encl. 3 of the Court file). This Court granted the injunction prayed for subject to the usual undertaking to abide by any order the Court should make as to damages (see encl. 5). It is not disputed that the notice of discontinuance dated 14 March 1988 was served on the solicitors for the 1st defendant only on 31 March 1988. It was also on the same date that solicitors for the 1st defendant were informed of the institution of this suit. On 4 April 1988 the 1st defendant through its solicitors wrote a letter to the solicitors of the plaintiff objecting to the discontinuance of the first suit and the commencement of this suit prior to the service of the notice of discontinuance on t