Howes J:

In this case, the Magistrate, Kuala Kangsar, has, under Section 586 of the Civil Procedure Code, 1918, referred to this Court for its decision, the following question:

Whether an appeal from the Court of a Penghulu to a Magistrate of the First Class shall be by way of rehearing; or shall be heard and determined on the notes of evidence recorded by the Penghulu.

Section 544 (ii) of the Civil Procedure Code, 1918, reads

Appeals from the Court of a Penghulu to the Court of a Magistrate of the First Class shall be heard in a summary manner and with as little formality as possible. The procedure at present in force in such appeals shall continue in force, subject to any amendments which may from time to time be directed by the Judges.

No such amendments have, so far, been directed.

Section 544 (ii) of the Civil Procedure Code, 1918, is identical with Section 501 (iii) of the Perak Civil Procedure Code, 1902, (No 11/1902) which State Enactment was repealed by the Civil Procedure Code, 1918.

The Perak Civil Procedure Code, 1902, repealed the Perak Order in Council No. 6 of 1893 (Perak Government Gazette (1893) Vol. VI, p. 656) which laid down the procedure to be followed at that time in Civil Appeals; including appeals from a Penghulu or Kathi to the Court of a Magistrate of the First or Second Class.

Paragraph 7 of Order in Council No. 6 of 1893 enacted that

all appeals shall be by way of re-hearing, and shall be heard and determined upon the evidence of the parties thereto and their witnesses.

Since no other procedure was therein provided, rehearing of the case was the procedure at present in force in such appeals when the Perak Civil Procedure Code, 1902, (repealing the Order in Council No. 6 of 1893) was enacted; and again this was the procedure "at present in force" when the Civil Procedure Code, 1918, Section 544 (ii) was enacted.

In the absence of the directions from the Judges mentioned in Section 544 (ii), it follows that in appeals from the Court of a Penghulu to the Court of a Magistrate of the First Class, the procedure to be followed is that which was laid down in the (now repealed) Order in Council No. 6 of 1893 para. 7 (supra) viz, that all appeals shall be by way of rehearing.

I therefore hold that in an appeal from the Court of a Penghulu under Section 544 (ii) of the Civil Procedure Code, 1918, the Magistrate must re-hear the case which is the subject matter of the appeal; and is not entitled to hear and determine such appeal on the notes of evidence recorded by the Penghulu.