JUDGMENT

Wan Suleiman FJ:

[1] On 5 September 1977 appellant was granted conditional leave to appeal to His Majesty the Yang di-Pertuan Agong against the order of this Court dated 14 July 1977 on the two usual conditions:

(1)That appellant do within three months enter into good and sufficient security in the sum of $5,000 for the due prosecution of the appeal and the payment of all such costs as may become payable;

(2) That appellant do within the period of three months procure the preparation of the record of appeal.

[2] By a motion dated 10 December 1977, appellant applied for an order that the time for complying with the two above conditions be enlarged for a further two months from 5 December 1977. An affidavit was filed in support of the application. Paragraph 3 of the affidavit sets out the reason for the application and reads:

"The record of appeal involves several bulky exhibits which have to be sorted out and photostated. It will take time to prepare the record of appeal which will be very voluminous. In view of the foregoing, the time of three months granted by this Honourable Court is inadequate to complete the preparation of the record of appeal."

[3] Respondent took objection to the application on the ground that the deposit was paid on 22 December 1977, ie 17 days late. Appellant conceded the late payment. But no reason was given in the affidavit for this late payment.

[4] Rule 7 of the Federal Court (Appeals from the Federal Court) (Transitional) Rules 1963 states:

7. Leave to appeal to the Yang di-Pertuan Agong in a civil matter shall only be granted by the Court in the first instance:

"(a) upon condition of the appellant, within a period to be fixed by the Court, but not exceeding three months from the date of the hearing of the application for leave to appeal, entering into good and sufficient security, to the satisfaction of the Court, in a sum not exceeding $5,000 for the due prosecution of the Appeal, and the payment of all such costs as may become payable to the respondent in the event of the appellant not obtaining an order granting him final leave to appeal, or of the appeal being dismissed for non-prosecution, or of the Yang di-Pertuan Agong ordering the appellant to pay the respondent's costs of the appeal, as the case may be; and

(b) upon such other conditions, if any, as to the time or times within which the appellant shall take the necessary steps for the purpose of procuring the preparation of the record and the despatch thereof to England as the Court, having regard to all the circumstances of the case may think it reasonable to impose."

It is the contention of appellant that the provisions of r 7 do not apply to appellant as the Government. Reference was made to ss 18 and 30 of the Government Proceedings Ordinance, 1956 which read:

18. Subject to the provisions of this Ordinance, the provisions of the written law relating to procedure shall apply to civil proceedings by or against the Government in the same way as to Suits between subject and subject.

30. Subject to the provisions of this Ordinance, all ordinances, enactments and rules of Court relating to procedure shall apply to execution shall, with any necessary modifications, apply to civil proceedings by or against the Government as they apply to proceedings between subjects."

[5] Appellant's submission is that these should be read subject to modification that the Government be exempted from paying a deposit as Government is always sure to pay costs if so ordered. Senior Federal Counsel appearing for appellant pointed out that as a matter of practice Government had always paid the deposit. As to the printing of the record this will take time. The Government Printer could not do it because of other commitments so it would have to be done by a private printer. Further, it was submitted that the application should be granted on the ground of the merits of the appeal.

[6] Respondent raised two objections to the application. First, there is no power to extend t