By a summons the plaintiff/appellant claimed against the defendant/respondent for a sum of $74,974.56 together with interest at the rate of 8% p.a. in respect of goods supplied and services rendered to the defendant. The defendant pleaded limitation of the cause of action. Both the plaintiff and the defendant applied to the court below for certain preliminary issue to be tried, i.e. whether the letter from the defendant received by the plaintiff on 6th December 1989 amounts to an acknowledgement of debt by the defendant. After hearing the said preliminary issue, the learned judge on 17th March 1995 ruled that the application be dismissed with costs. Against this decision of the learned judge the plaintiff now appeals to this court. [2]

This appeal by the plaintiff was set down for hearing on 30th July 1996. Before the commencement of the hearing the learned counsel for the appellant informed the court that this appeal is in respect of an interlocutory order and that the notice of appeal was filed with the Registrar of Sessions Court and prayed to the court that in the event that the court dismiss the appeal, no order should be made as to costs. The respondent in reply left the matter of costs to the court. I believe the reason for the learned counsel having approached the matter in this way was on account of my own decision in Datuk Bandar Kuala Lumpur v. Seman bin Amat & 2 other cases (1996) 1 CLJ 1 wherein I held that in an appeal against the decision made by the subordinate court other than a decision made after trial, such appeal is properly brought only if the notice of appeal is filed in the Registry of the High Court as required by O. 49 r. 6(2) of the Subordinate Courts Rules 1980 (hereinafter referred to as the SCR") as amended. Failure to do so is fatal as it would not confer the Judge in Chambers with jurisdiction to hear the said appeal as the appeal is not properly brought. As this particular notice of appeal was not filed in the Registry of the High Court as so required by the rule, I struck out the appeal of the plaintiff but made no order as to costs. The appellant now files a notice of motion to [3] the Court of Appeal against my said decision striking out its appeal on ground of non-compliance with O. 49 r. 6 of the SCR. I now give my reason for doing so.

The provisions of O. 49 r. 6(2) is very clear in its purport. If there ever is any confusion it is in regard to the use of Form 140 as the form of notice of appeal. No doubt generally, a notice of appeal is to be filed in the registry of the court appealed from and so in this case applying the general rule, the notice of appeal ought to be filed with the Registrar, Sessions Court being the court appealed from. Consistent with the general rule the form requires it to be sent to either the Registrar, Sessions Court or the Magistrate, depending upon whose decision is being appealed against. But that general rule by PU(A) 193/93 is replaced by a special provisions in O. 46 r. 6(2) in requiring that the notice of appeal in respect of any decision made by the court other than a decision made after trial must be filed with the Registrar of the High Court. Another displacement of the general rule is that under O. 49 r. 6(1) such appeal would lie to a Judge in Chambers as distinct from an appeal being heard by a Judge in open court before the amendment took effect on 1st August 1993. Now as the form to be used as a notice of appeal to the Judge in Chambers [4] remains in Form 140, there appear to be some apparent confusion. But to my mind, there ought to be no real confusion at all over the use of the said form. While writing this judgment I have the privilege of reading the judgment of my learned brother, Low Hop Bing J. in Pandan Maju Sdn. Bhd. v. Dulon Industries Sendirian Berhad (1996) 3 AMR 3151. In that case the learned judge is of the view that although the appellants had filed their notice of appeal at the Magistrates Court, it was in orde