The sole question for decision by the Court here concerned the meaning and ambit of the phrase "entered for hearing" in O. 53 r. 2 of the Rules of the High Court, 1980.

The question arose on a preliminary objection taken by the Respondents to an Application for an Order of Certiorari to remove into this Court for the purpose of it being quashed the award of the Industrial Court of Malaysia being, No. 240/83 dated November 25, 1983, on the ground of a breach of the rules of natural justice.

Although the point taken is an extremely technical one and without any merit, if it is correct, the Respondents are entitled to succeed and the motion will have to be dismissed in limine.

The starting point is, of course O. 53 r. 2 which provides as follows:

"(1) When leave has been granted to apply for an order of mandamus, prohibition or certiorari, the application for such order must be made by originating motion to a Court, except in vacation when it may be made by originating summons to a Judge in Chambers, and, unless the Court or Judge granting leave has otherwise directed, there must be at least 8 clear days between the service of the notice of motion or summons and the day named therein for the hearing.

(2) The motion must be entered for hearing within 14 days after such leave was granted.

"

(emphasis supplied)

It was submitted that although the Applicant obtained leave under O. 53 r. 1A on January 13, 1984 in time and lodged the Application for certiorari four days thereafter, it was not fixed for hearing until April 6, 1984 that is to say, 52 days after leave was obtained and that therefore there was a breach of the requirements of O. 53 r. 2(2).

It was said that it was the responsibility of the Solicitors for the Applicant to have ensured that the motion was entered for hearing within the time limited and that this could have been done had they been more diligent. It was also said that as the Court had no power to enlarge time at this stage it had no option but to dismiss the Application.

I have considered the judgment of Rigby, J. in Gooi Seang Tuck v Tan Peng Loon & Anor [1959] MLJ 153. which concerned the procedure governing appeals from decisions of the Registrar to a Judge in Chambers. I do not consider it of any relevance to the issue raised here because in that case everything depended upon the interpretation of O. 54 r. 21 of our old Rules of the Supreme Court, 1957, which, omitting immaterial parts, reads as follows:

"Any person affected by any order or decision of a Registrar may appeal therefrom to a Judge at Chambers. Such appeal shall be by notice in writing to attend before the Judge without a fresh summons, within five days after the decision complained of, or such further time as may be allowed by a Judge or Registrar. Unless otherwise ordered there shall be at least one clear day between service of the notice of appeal and the day of hearing. "

(emphasis supplied)

In his judgment, Rigby, J. said:

"As a matter of practice, however, it is as well that advocates and solicitors should note that the primary responsibility rests with them to ensure that the notice of appeal in such matters should not only be taken out but also be made returnable within the period of five days. I think the most suitable course for Counsel to ensure that the notice of appeal is returnable within the period of five days would be to request the Registrar to include it in the List (if need be, only for mention) for one or other of the days for the hearing of Chamber matters, namely, Mondays or Fridays."

I can find no warrant for equating the words "entered for hearing" in the current O. 53 r. 2(2) with the words "Such appeal shall be by notice in writing to attend before the Judge within five days after the decision complained of " in the old O. 54 r. 21. Clearly, the two provisions are as unlike each other as cheese is from chalk.

The commentary in the U.K. Annual Practice, 1957, on the then O.36 r. 16 at pp. 603-605, com