Gopal Sri Ram JCA:

This appeal concerns a short but important point of procedure upon which there is a marked divergence of opinion between High Courts. It has to do with the proper construction that is to be placed on O. 49 r. 6(2) of the Subordinate Courts Rules 1980 ('the Rules'). Some Judges have expressed the view that a party who is dissatisfied with the decision of a subordinate Court should file his notice of appeal in the Registry of that Court. Others have taken the position that the notice should be filed in the Registry of the High Court. This difference in opinion between Judges of the High Court has resulted in uncertainty in the procedure that is to be adopted.

The present appeal is one such case. The High Court in the instant appeal held the appeal to be out of order because the appellant, against whom summary judgment pursuant to O. 26A of the Rules had been entered, had filed his notice in the Sessions Court. The appellant has appealed against this ruling of the Judge. At the hearing, Counsel said that this is the first time this Court has been called upon to resolve the controversy. Rule 6(2) of O. 49

which is at the root of the problem reads as follows:

The appeal shall be brought by filing a notice of appeal in Form 140 within 14 days from the day on which the decision was pronounced, and serving a copy of the notice on every other party to the proceedings within the time limited for the filing of appeal to the Registrar of the High Court.

The difference of opinion of which I spoke a moment ago arises from the reference in r. 6(2) to "the Registrar of the High Court". But what the rule does in that context is to limit the time within which the notice of appeal is to be served on a respondent. It is not to be read - and this is how the learned Judge here read it - as requiring an appellant to lodge his notice of appeal with the Registrar of the High Court.

The normal rule of practice and procedure is that a notice of appeal is to be filed at the Registry of the Court against whose decision an appeal is being preferred. The purpose is to draw to the attention of the deciding Court the fact that its order is being challenged at the appellate level so that the judicial arbiter, be it Magistrate or Sessions Judge, may produce written reasons for the decision appealed against. On the other hand, no useful purpose will be served by the notice being lodged with the appellate Court. In the first place there is no machinery for that Court to receive and deal with a notice of appeal against the decision of a lower Court. Secondly, there will be no notification whatsoever by the dissatisfied party to the subordinate Court that its decision is being questioned on appeal. Once the notice of appeal is filed in the Registry of the subordinate Court, there is no harm in the appellant furnishing the High Court with a copy of the notice of appeal to keep it informed.

It is undoubtedly within the powers of the Rules Committee to alter the normal practice by making a rule of Court to that effect. However, it will require clear and compelling language for such a consequence to ensue. In my judgment, the language in which r. 6(2) is couched does not have the far- reaching effect of reversing the well-established practice earlier referred to.

I am therefore of opinion that the rule does not require an unsuccessful litigant to lodge his notice of appeal with the Registrar of the High Court. It is sufficient that he files the notice with the Registrar of the subordinate Court.

The judgment of Low Hop Bing J in Pandan Maju Sdn. Bhd. v. Dulon Industries Sendirian Berhad [1996] 3 AMR 3151 and that of Augustine Paul JC in Tan Wee Choon v. Tan Kee Kiat (M) Sdn. Bhd., (Melaka High Court Civil Appeal No. 12-22-95, as yet unreported) accord with the views I adhere to and must be treated as correctly stating the law. On the other hand, Datuk Bandar Kuala Lumpur v. Seman bin Amat [1996] 3 CLJ 263 and all decisions to like eff