Lord Guest:

[1] The judgment of the Lords of the Judicial Committee was delivered by,

[2] This is an appeal from an order of the Court of Appeal of the Supreme Court of the Federation of Malaya, dated 15 May 1962 dismissing an application made by the appellant by notice of motion, dated 18 April 1962, for an order that the time for filing the record of appeal be extended to 14 days from the date of the order sought.

[3] On 3 February 1962 Ong J gave judgment for the respondents in an action brought by the appellant against them in the Supreme Court of the Federation of Malaya in the High Court at Kuala Lumpur and dismissed the appellant's claim with costs. In this action the appellant claimed a half interest in properties having a value of not less than $428,000 or about £50,000.

[4] The appellant was entitled as of right and without leave to appeal against the judgment and order to the Court of Appeal.

[5] Under the Rules of the Supreme Court of the Federation of Malaya by O 58, r 15 the notice of appeal had to be filed within one month and in accordance with O 58, r 21 the appellant on 2 March 1962 personally filed four copies of the notice of appeal and the sum of $500 as security for the costs of the appeal.

[6] In accordance with O 58, r 22 the record of appeal which comprised the memorandum of appeal and certain other documents was required to be filed within six weeks after the entry of the appeal "or within such further time as the Court of Appeal may allow". This period of six weeks expired on 14th April. Under r 22(1) the appellant is required in the memorandum of appeal to set forth "concisely and under distinct heads, without argument or narrative, the grounds of objection to the decision appealed against, and specifying the points of law or fact which are alleged to have been wrongly decided". The appellant was also required to attach to the memorandum of appeal a copy of the judge's notes of the hearing and a copy of the judgment appealed from (r 22(4)).

[7] By letter, dated 15 March 1962 the Registrar of the Court of Appeal informed the Registrar of the Supreme Court at Kuala Lumpur that the appeal was fixed for hearing at the sitting of the Court of Appeal which was to commence at Kuala Lumpur on 20 August 1962, and drew attention to the fact that the record of appeal should be filed at Kuala Lumpur on or before 14 April 1962. A copy of this letter was sent to the appellant personally and received by him. A copy was also sent to the respondents' solicitors.

[8] On 18 April 1962 the appellant's solicitors made an application for an extension of time for filing the record of appeal to 14 days from the date of the order to be made. The Court of Appeal had jurisdiction to extend the time for filing the record of appeal even though the application for extension was made after the expiry of the time allowed (Order 64, r 7).

[9] On 15 May 1962 the Court of Appeal heard and dismissed the application. Subsequently the Court of Appeal held that the order dismissing the application was a final order in that it finally disposed of the rights of parties and accordingly the appellant did not require the leave of the Court of Appeal to appeal to the Board.

[10] When the application came before the Court of Appeal the Court had before them affidavits by the appellant and the respondent first named respectively. In his affidavit the appellant explained that he first instructed his present solicitors to act on 13th April when they explained to him that it would not be possible to file the record within the time limited ie on or before 14 April 1962. He further stated that he had not instructed his solicitors earlier nor had he taken any other action with regard to the appeal as he had hoped that some compromise might be reached between the parties. In the first-named respondent's affidavit it was stated that the appellant at no time agreed to any compromise nor did he approach the respondents with a view to compromise.