Syed Agil Barakbah SCJ:

This was an appeal against the decision of the High Court Judge, Kuala Lumpur, who dismissed the appeal in Chambers against the decision of the Registrar who gave judgment against the appellants on an application for summary judgment under O. 14 of the Rules of the High Court 1980 at the instance of the respondent. Before us Counsel for the respondent raised a preliminary objection on the grounds that the appellants had failed to apply for further argument in open Court within the prescribed time under O. 56 r. 2(2) RHC 1980. In the circumstances, the appeal was not properly brought before the Court and should be struck out. According to the sequence of events as shown in the appeal record, no oral application was made after the learned Judge had dismissed the appeal. The Order of the High Court was subsequently issued on 9 October 1984. A written application dated 2 November 1984 was made under O. 56 r. 2(2) and the learned Judge issued a certificate dated 6 November 1984 that he did not require any further argument in open Court in respect of the said Summons-in-Chambers. It was submitted that the said certificate was issued by the learned Judge on an application made well out of the time by about twenty days.

Order 56 r. 2(2) states:

Any party dissatisfied with any order made by a Judge in Chambers may apply, at the time the order is made, orally or at any time within four days from the day of the order in writing to the Registrar, for the adjournment of the matter into Court for further argument, and on such application, the Judge may either adjourn the matter into Court and hear further argument, or may certify in writing that he requires no further argument. If the Judge hears further argument, he may set aside the order previously made and make such other order as he thinks fit.

It is clear therefore that the application was made out of time and we are of the view that had the learned Judge been aware of the defect he would not have issued the certificate.

The matter regarding the right of appeal to the Supreme Court against an order of a High Court Judge made in Chambers is governed by s. 68(2) of the Courts of Judicature Act 1964 (the Act) which states:

No appeal shall lie from an order made by a Judge of the High Court in Chambers unless the Judge has certified, after application, within four days after the making of the order by any party for further argument in Court, that he requires no further argument, or unless leave is obtained from the Supreme Court or from a Judge of the High Court.

The respondent relied on the Federal Court decision in Ng Cheng Yoon v. Mah Binti Mat Isa [1981] 1 MLJ 218 in support of their contention that the rule applied only to an interlocutory order and not to a final order of the Judge in Chambers. The judgment in that case relates to specific performances of an agreement for sale of land and was therefore a final judgment. Similarly in the present appeal, the Registrar's order made under O. 14 RHC 1980 was also final. Since that case however, s. 68(2) was amended by the deletion of the word "interlocutory" before the word "order" with effect from 23 February 1982 (see Act A530). As a result of the amendment, we are of the opinion that the word "order" in O. 56 r. 2(2) RHC 1980 includes an interlocutory as well as a final order of the High Court Judge made in Chambers. The decision in Ng Cheng Yoon's case is no more applicable. We hold that s. 68(2) applies to the instant case.

It was further submitted that the word "order" in s. 68(2) cannot refer to "judgment" since s. 68(1)(b) and (c) distinguishes between judgment and order. We do not see any merit in this argument. Unlike subsection (1)(a) and (b) which refer to matters that are non-appealable, subsection (2) refers to a decision of a Judge in Chambers against which an appeal may be brought if certain conditions are fulfilled. We do not think that the omission of the word "judgment" in subsection (2