(iv) Issue estoppel not only applies to issues actually decided by the court in the previous proceedings but also to issues which might have been and which were not brought forward either deliberately or due to negligence or inadvertence in an earlier proceeding. These issues though not decided in the previous proceedings are covered by the doctrine (the doctrine in its wider sense). [26] The doctrine in its wider sense stated by the Federal Court is founded on the principle enunciated by Wigram VC in Henderson v. Henderson [1843] 3 Hare 100 in the following words: I believe I state the rule of the Court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties exercising reasonable diligence, might have brought forward at the time. (emphasis mine) [27] An application of the established principles would naturally require a comparison being made of OS 466/2019 and the instant proceedings and the issues that had been determined. [28] The OS 466/2019 proceedings sought to declare the rights of the parties under the agreement as a result of the rejection of the application of a 433B approval by the State Authority of Kedah (“the condition precedent”). The purpose of the principal declaration sought was the status of the agreement as a result of the rejection of the application of the 433B approval, namely, whether the agreement is converted and modified into a monthly tenancy. At that point in time, and in particular when the 2019 Order was made, the condition precedent for the agreement capable of being registered as a lease was non-existent by virtue of the said rejection. In making the declaration I had to construe certain provisions of the agreement, in particular, clauses 2(i) and 26.3. [29] Whereas, in the instant originating summons, this Court is moved for a declaration of right of the parties under the same provisions of the agreement but based on an event happening after OS 466/2019 was determined which was the granting of the 433B approval by the State Authority of Kedah – a fact not available and opposite to that which was available at the earlier proceedings. The issue now is to be considered based on a different fact and would have a profound effect on the legal position of the parties. The issue is whether with the subsequent granting of the 433B approval, the conversion and modification of the agreement into a monthly tenancy ceases and the agreement has become capable of registration under the National Land Code. [30] The defendant contended that the doctrine of res judicata in its wider sense is applicable. If the doctrine in the wider sense is applicable then the instant originating summons would be an abuse of the process of the court and liable to be struck out. The plaintiff contended that the fact of the 433B approval was not available then and could not be raised at the hearing of OS 466/2019 and therefore the instant originating summons is not caught by the doctrine of res judicata. [31] In my view, the situation before me is one where the exception to the doctrine of res judicata would apply. That the fact not available at the earlier proceedings only became available to the plaintiff after the earlier proceedings had been determined. The exceptions to the doctrine are stated in Syarikat Sebati Sdn Bhd v. Pengarah Jabatan Perhutanan & Anor [2019] 3 CLJ 157 as follows: [43] It is clear however from decided cases that the circumstances alluded to by the Court of Appeal (ie, non consideration of the provisions of the GCA 1949) do not fall within the exceptions to the doctrine of res judicata which are limited to the following situations: fraud or where evidence not available at the original hearing becomes available (see Arnold and others v. National Westminister Bank Plc [1991] 3 All ER 41; [1991] 2 AC 93 and Hock Hua Bank Bhd v, Sahari bin Murid [1981] 1 MLJ 143). [32] In this regard the contention that the doctrine of res judicata applies by reason of Civil Action 04/2021 is without substance as the claim thereat is yet to be adjudicated. There is also no multiplicity or duplicity as contended. It is trite that a declaratory order makes no positive order and cannot be enforced by execution as the remedy is only to declare the rights of the parties (Takako Sakao (F) v. Ng Pek Yuen (F) & Anor (No. 3) [2010] 2 MLJ 141). The Civil Act 04/2021 is a claim in private law against the defendant for breach of contract. [33] For the above reasons, the instant originating summons is not unsustainable and therefore ought not to be struck out on the res judicata point or the duplicity and/or multiplicity point. [34] The next point in enclosure 10 is that the instant originating summons is pre-mature for not complying with clauses 37.1 and 37.2 of the agreement which provides the process and time of settling a dispute. [35] Clause 37 provides for the resolution of disputes. Clauses 37.1 and 37.2 provides that in the event of any disputes arising under the agreement to resolve the same first by way of mutual consultations, failing which to have the dispute referred to the court. In my view the clauses no longer apply since the matter had already been referred to the court by the defendant in OS 466/2019 and the instant originating summons is but a result of that court proceedings. The defendant had relied on the 2019 Order to terminate the agreement by a notice dated 13.3.2020. Since then there were exchange of correspondences between the parties to no avail and ultimately leading to the instant originating summons being filed on 19.1.2021. The defendant had taken advantage of court proceedings and now seeks to deprive the plaintiff of the same right. In the circumstances I hold that the instant originating summons is not obviously unsustainable on this ground. [36] For the above reasons, the instant originating summons is not a suitable case to be struck out. The matter is not “scandalous, frivolous or vexatious” or “otherwise and abuse of the process of the court” and should be heard on its merits. The instant originating summons [37] Following my reasoning and findings in OS 466/2019 and on the interpretation of clauses 2(i) and 26.3 of the agreement it follows that the agreement although converted and modified into a monthly tenancy had become capable of being registered as a lease upon the 433B approval being granted by the State Authority. I had held then and still hold the view in the instant originating summons that: Clause 26.3 of the agreement states that the agreement shall continue to bind the parties until the fulfilment of the condition precedents in Clause 2 and until then, the agreement shall be converted and modified into a monthly tenancy… [38] In my view the only condition precedent required to render the lease capable of registration under the terms of the agreement and the National Land Code was the 433B approval. Pending the 433B approval, as required by clause 26.3, the agreement remains converted and modified into a monthly tenancy. The conversion and modification as a tenancy agreement was therefore not permanent and is to continue so long as the condition precedents remain unfulfilled. That was the intention of the parties. Once all the condition precedents are fulfilled, the agreement become capable of being registered as a lease. How the parties conduct themselves what actions can be taken by the parties and the validity of such actions therefrom is not for this Court to speculate at this time. [39] The defendant contended that there is no 433B approval because only the Kedah Land Office, in other words the Director of Land and Mines, is the proper party to issue the State Authority’s approval and not the State Secretary. I found it not unlawful for the State Secretary of Kedah to have issued the letter informing of the 433B approval. It is a bit strange that the said approval was granted after an appeal by Belleview Group dated 11.11.2019 and directed to the plaintiff and not on an appeal by the defendant. But that is not made an issue and therefore left at that. [40] Nevertheless, the 433B approval was made by the State Authority of Kedah, the entity empowered by section 433(2) of the National Land Code to make such decision. It is in actual fact the decision of the State Executive Council of the State Government of Kedah which is the State Authority in the instant case. Thus, there is no impediment that the letter informing of the decision to grant the 433B approval is made by the State Secretary of Kedah who is also the secretary for the State Authority. In any event what is being conveyed is the decision of the 433B approval. There is nothing on record to show that the defendant upon being informed of the said letter had written to or obtained confirmation to the contrary form the Director of Land and Mines, Kedah. [41] It was further contended that the condition precedent period of the agreement had expired in the event this Court was minded to hold that there is a valid 433B approval. I agree with counsel that time is no longer of the essence and has been enlarged. The period expired on 20.3.2014 and the extended period expired on 20.6.2015. However, the defendant only made the application for the 433B approval on 29.7.2015. This is further evidenced by the parties not utilising clause 2.7 to terminate the agreement. Finally, the application by the defendant which resulted in the defendant obtaining a declaration of right dated 18.11.2019 stating that the agreement is converted and modified to a monthly tenancy until the condition precedents are fulfilled. Thus, the issue of the condition precedents period is immaterial to challenge the validity of the approval. [42] In this regard it suffices to say that the cases Ideal City Development Sdn Bhd v Dynamic Mould Sdn Bhd [2003] 3 CLJ 201 and Jaafar bin Ibrahim v. Gan Kim Kin [1985] MLJ 24 are distinguishable on the facts. [43] As a result I granted the following three declarations: