Thomson J (delivering oral JUDGMENT):

This is an appeal against the judgment of the Magistrate at Sitiawan.

The plaintiff's claim was for balance of principal and interest said to be due on a promissory note, the execution of which by the defendant was admitted.The defence, in effect, was, in the first place, that credit had not been given for certain payments alleged to have been made by the defendant, and, in the second place, that the interest charged was excessive.

With regard to the second of these points, the Magistrate invoked the assistance of the Usurious Loan Enactment (which in view of the date of the note was the relevant statute) in favour of the defendant. I see no reason to quarrel with his having done so or with the extent to which he did so.

As regards the first point, the Magistrate decided the question of fact involved in favour of the plaintiff.That question of fact related to thirteen allege payments of $30 each, and the Magistrate held he was not satisfied that these payments had been made.Against that finding the defendant has now appealed.

I do not propose to deal with a number of the grounds of appeal beyond saying that in my opinion they are without substance.

Having said that, however, there remains one ground which I feel I should deal with at some small length because it raises a question of some general importance as to the interpretation of the Subordinate Courts Rules which may well arise to trouble other Magistrates in future.

The point is this.The defendant alleged he had made thirteen payments each of $30. After he had given evidence to that effect and been cross-examined upon it, the Magistrate would appear to have asked him whether he kept books of account.In answer to this, he tendered a book which on the face of it appears to be some sort of an account book mainly kept in the Tamil language, written in Tamil characters, but with the dates and amounts of money in Roman characters.Counsel for the plaintiff objected to the admission of this book in evidence on the ground that it was not accompanied by a certified translation and the Magistrate upheld that objection and refused to admit it.

I am not concerned here with the question of whether or not the book was admissible or otherwise by reason of s. 34 of the Evidence Ordinance because it is clear from the grounds of judgment that the Magistrate's reason for rejecting it had nothing to do with s. 34 of the Evidence Ordinance, but was based solely on r. 2 of Order III of the Subordinate Courts Rules which he apparently interpreted as meaning that such a document written in a language other than English could not be used in evidence unless accompanied by a certified translation into the English language.

In my opinion the Magistrate was wrong.

The material portion of r. 2 of Order Ill reads as follows:

Every such proceeding or document shall, if not in the English language, be accompanied by a certified translation thereof, and shall not otherwise be received, filed or used in Court.

That provision standing in isolation is meaningless, and it can only be given meaning by an amplification of the word "such" used in qualification of the expression "proceeding or document". That amplification is clearly to be said from a consideration of the terms of the preceding rule which refers, and here I quote to "every proceeding and every document used in any proceeding, other than original documents produced in evidence".

The word "proceeding" has received different construction in the past. I do not think it necessary to consider all of these at length.It has been construed as meaning an action as a whole.It has also been construed as meaning a step in an action.Here, however, it seems to me that the word is used in a somewhat peculiar sense.The Order as a whole is headed "Form of Proceedings". The side-note to r. 1 is "Size and format" and the side-note to r. 2 is "Language". Rule 1 says (and here I omit a number of words which are not relevant