Zakaria M Yatim JCA:

[1] There were three notices of motion which the Court had to decide before hearing the appeals in Civil Appeal No 02-488 of 1992 and Civil Appeal No: 02-489-1992.

[2] In the first notice of motion the appellant, in 488 of 1992 sought the leave of the Court to file a supplementary record of appeal to include several documents which were not included in the original record of appeal. The respondents did not object to the application and the Court accordingly made an order in terms of the application.

[3] In the second notice of motion, the appellant in 489 of 1992 applied for an extension of time to file the record of appeal after the expiry of the six weeks pursuant to O 62(7) of the Rules of the Supreme Court, 1980. In the third notice of motion, the respondents in 489 of 1992 applied for an order that the notice of appeal filed by the first appellant on 24 October 1992 be struck out with costs. The second and third notices of motion were interrelated and we decided to hear them together.

[4] The affidavit in support of the appellant's application for extension of time was affirmed by Dr Jagjit Singh Sidhu on behalf of the appellant. In the affidavit the deponent averred that the learned trial Judge Edgar Joseph Jr (as he then was) entered judgment in Pulau Pinang Civil Suit No: 449 of 1981 against the appellant on 12 October 1992. The appellant filed notice of appeal against the decision of the learned Judge on 24 October 1992 which was well within the time specified under the Supreme Court Rules. The deponent said that the time limited for requesting the notes of evidence was one week from the date of the filing of the notice of appeal. The deponent however admitted that the request was not made until 18 November 1992. The deponent said that the "reasons why we were late for requesting the notes of evidence was due to inadvertence and under the mistaken impression that the said request was to be made within (1) week of the expiry of the one (1) month from the filing of the notice of appeal." On 27 November 1992, the appellant's solicitors received a letter from the secretary to the learned Judge informing them that the notes of evidence were in the process of being prepared and would be sent to them when they were completed. The deponent further averred that on 28 November 1992, the appellant's solicitors formally applied to the Senior Assistant Registrar for an extension of time to file the appellant's record of appeal on the grounds that they were awaiting the notes of evidence. On 18 December 1992, the appellant's solicitors received a letter from the Deputy Registrar of the Supreme Court dated 9 December 1992 informing them that their application for extension of time had been refused on the grounds that their request for the notes of evidence had been delayed.

[5] Mr Ooi Kim Keat, in his affidavit in support of the third notice of motion averred that the Deputy Registrar had rejected the application of the appellant's solicitors for extension of time to file the appeal record because the appellant had failed to comply with Practice Direction No 2/91 based on the ground that the letter to the secretary to the learned Judge requesting for the notes of evidence had been made more than one week from the filing of the notice of appeal. The deponent stated that the application for the notes of evidence was only made by the appellant's solicitors more than 25 days after the notice of appeal was filed and was not in accordance with the said Practice Direction. The deponent further said that the appellant had no good ground to explain the delay to request for the notes of evidence from the secretary to the learned Judge.

[6] The respondents referred to the Deputy Registrar's letter dated 9 December 1992 and contended that the appellant's application for extension of time to file the appeal record did not comply with Practice Direction 2 of 1991. The letter reads as follows:

T/n Lim Kean Siew & Co Peguambel