Mohd. Azmi SCJ:

By these two notices of motion dated 31 December 1985 which are heard together by consent, the respondent/applicant [the successful defendant in the High Court] prays for an order that the appeal of the appellants/plaintiffs in both cases be set aside or dismissed on the grounds that the appellants (i) have not obtained leave to appeal under s. 68(1)(a) of the Courts of Judicature Act 1964 (ii) have not complied with r. 56 of the Rules of the Supreme Court 1980 and (iii) have not complied with r. 62 of the said Rules. Both the applications have been dismissed, and I now set out my reasons.

At the outset, Miss Liza Chan, Counsel for the respondent has abandoned ground (i) since the appellants have apparently obtained leave to appeal from Anuar J in the High Court at Ipoh. Thus although the value of the subject matter at the trial is less than RM100,000, the matter is now appealable under s. 68(1)(a). Nor is ground (iii) pursued in the course of argument. In the event, I need only deal with ground (ii) on the issue of whether the Court should strike out the appeals or allow the appellants leave under r. 56 RSC 1980 by extending the time limited for appeal.

On ground (ii), two questions have arisen. The first is where as in the present case, leave to appeal is required under s. 68(1)(a) of the Courts of Judicature Act 1964, can notice of appeal be filed before the said leave is obtained? Rule 49(1) RSC 1980 provides:

Appeals to the Court ... shall be brought by giving notice of appeal.

But s. 68(1)(a) provides that, "No appeal shall be brought to the Supreme Court" when the amount or value of the subject matter at the trial is less than RM100,000, except with leave of the Supreme Court or a Judge of the High Court. Reading these two provisions together, it is explicit that leave to appeal must first be obtained before notice of appeal can validly be filed and served, although the time limited for appeal would run from the various events specified in r. 56 RSC. (see Tractors Malaysia Bhd. v. Southern Estates Sdn. Bhd. & Anor. [1984] 1 CLJ (Rep) 398).

The facts of the present case show that on 23 September 1985 Anuar J after hearing a preliminary objection by the respondent in open Court, ordered that the writ of summons and statement of claim of the appellants be struck out, and that judgment be entered in the respondent's favour against the appellants on the counterclaim. This is the order which the appellants wish to appeal against. Although the said order was made pursuant to the respondent's summons-in-Chambers, there is a dispute as to whether the said order was an order in Chambers or an order in open Court. It would appear that the respondent's summons- in-Chambers was directed by the learned Judge to be heard in open Court under O. 32 r. 11(1) RHC 1980, and the order as extracted and exhibited in the affidavit of the appellants clearly shows that it is an order pronounced in open Court. In my view, there can be no doubt that the order of 23 September 1985 is an order in open Court, and for the purpose of bringing an appeal, the requirements of s. 68(2) of the Courts of Judicature Act which applies only to order made in chambers need not be complied with. That sub-section provides:

No appeal shall lie from an order made by a Judge of the High Court in chambers unless the Judge has certified, after application within four days after the making of the order by any party for further argument in Court, that he requires no further argument, or unless leave is obtained from the Supreme Court or from a Judge of the High Court.

It also follows that being an order in open Court, for the purpose of calculating the one month period within which to appeal under r. 56, para. (c) and not para. (a) of that Rule is applicable which means that time runs "from the date on which the judgment or order appealed against was pronounced", in this case 23 September 1985. Rule 56 as amended by PU (A) 222/80 with effect from