Chang Min Tat J:

This appeal is from the refusal of the learned trial Judge to exercise his discretion in favour of the appellant who on his advice had applied to the High Court for extension of time for filing and serving the memorandum of appeal.

Judgment was given against the appellant on 8 June 1972. Notice of appeal was filed on 14 June 1972, well within the period of the 14 days specified in Order XXXIX, r. 2(3) of the Subordinate Court Rules and also within time, served on the respondent.

Consequent on this notice of appeal, the Sessions Court at Kuala Pilah, the Court appealed from, set about preparing the appeal record as laid down in Order XXXIX r. 3. This particular rule is in these words:

R 3 (1). When the appellant has complied with the requirements of r. 2 of this Order ..., the Court appealed from shall prepare the requisite number of copies of the appeal record and the appeal record shall contain copies of ....

(2). As soon as the appeal record is ready the Court appealed from shall serve the appellant with a notice in Form 40.

The notice under Order XXXIX r. 3(2) was served on the appellant's solicitors on 23 May 1974 but they were not on that day ser