Suffian FJ:

(read by Ong Hock Sim FJ ): This is an appeal against a decision of the High Court.

Mr. Joseph for the respondent (plaintiff in the lower court) argues that we have no jurisdiction to hear this appeal.

To understand his arguments, it is necessary to give a brief history of the matter. On 16 March 1971, the judgment appealed from was delivered in favour of the plaintiff against the two defendants. The second defendant was dissatisfied with it. On 29 March he gave notice of appeal under r. 6 of the Federal Court (Civil Appeals) (Transitional) Rules, 1963. That appeal was given a number (31 of 1971) by the Registry. The second defendant did not, however, at the time of filing the notice of appeal serve a notice of the appeal on the plaintiff, as required by r. 7. Realising on the authority of Tan Ting Kok v. Cheong Lep Keen and Anor. [1969] 1 MLJ 153 that his appeal would not therefore have been properly brought before the court, he wrote to the plaintiff asking for his consent to the withdrawal of the notice of appeal, so that he (the second defendant) could file a second notice. The plaintiff declined to give his consent. On 15 April, that is still within time, the second defendant filed a second notice of appeal. This time he served a copy on the plaintiff as required by r. 7. The Registry gave the appeal a second number, 36 of 1971.

When the matter first came up before us, there were thus two appeals, Nos 31 and 36 of 1971.

On the second defendant's application, the first appeal was struck out without objection from the plaintiff. There then remains appeal No. 36. It is argued by Mr. Joseph for the plaintiff that once the Court has struck off the first appeal, it is functus officio and it has no jurisdiction to hear the second appeal. Mr. Joseph for the plaintiff cites in support Re Lamb [1889] 23 GBD 477 which he admits is not directly in point. I do not think that his argument is supported by that case, for there the appeal struck out had been properly brought before the Court and the question was whether the Court should restore it and enlarge the time for appealing. Here the appeal struck out had not been properly, brought before the Court and the second notice of appeal was given within time and there is no question of restoration and enlarging time. As the first notice was a nullity, there is no point in the second defendant applying for leave to file a fresh notice of appeal.

It is next argued that the second defendant cannot serve the second notice of appeal while the first notice is still pending without a Court order granting him leave to withdraw the first notice, with liberty to file a second notice. Watson v. Cave [1881] 17 Ch. D 23 is cited in support. I do not think that that case helps the plaintiff either. There the appellant gave formal notice of his intention to withdraw his appeal, which notice was accepted by the respondent. Here the appellant asked the respondent to consent to the withdrawal of the notice of appeal and the respondent declined to consent. Also here there is no question of the first notice of appeal being still pending, as it has never been served on the respondent.

To understand the third argument, it is necessary to state briefly the nature of the dispute in this case. The plaintiff is an insurance company. It issued a policy in respect of the first defendant's car. The first defendant's car knocked down and injured an infant. The infants father, the second defendant, sued the first defendant for damages in Civil Suit No. 1216/1968. Thereupon in a separate suit out of which this appeal arises the plaintiff sued the first and second defendants for a declaration that the policy was void. It won. The effect of the judgment obtained by it was that, if there was any liability in negligence for the accident, the first defendant is personally liable, not the plaintiff.

It is argued that the first defendant is a party "directly affected by the appeal" within the meani