[ ON PRELIMINARY OBJECTION ]

I. APPEAL

This is an appeal by the appellant-plaintiff ("plaintiff) against the decision of the learned sessions court judge who had on 22 May 2001 dismissed with costs the plaintiffs application for summary judgment under O.26A of the Subordinate Courts Rules 1980 ("O.26A application").

Unless a contrary intention appears, all references to any order or rule in this judgment is a reference to that order or rule in the Subordinate Courts Rules 1980; and a reference to a section shall be a reference to that section in the Courts of Judicature Act 1964.

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II. QUESTION FOR DETERMINATION

A novel and interesting question of law seems to have been raised for the respondent-defendant ("defendant") by way of preliminary objection to the effect that the plaintiff has no right of appeal. Hence, the question of law for determination is whether a decision of a subordinate court dismissing an O.26A application is appealable.

III. SUBMISSIONS FOR DEFENDANTS

En. WS Goh, learned counsel for the defendant, submitted that the plaintiff could only appeal if there is a "decision" under O.49 r 1 and r 6 read together with s.3 and that a "decision" must be a final decision and does not include a judgment or order which is interlocutory in nature. He added that the element of finality is essential.

4 IV. CONTENTION FOR PLAINTIFF

Cik Sharon Lee, learned counsel for the plaintiff, contended that the proviso to s.3 is only applicable to rulings, made in the course of a trial or hearing of any cause, and that the nature of the application for summary judgment is within the spirit and meaning of the word "decision", in that it disposes of proceedings without trial, as it is not a matter of procedure only.

She relied on article 8 of the Federal Constitution to the effect that all persons are equal before the law. She added that as summary judgment given to the plaintiff would give the defendant the right of appeal, the dismissal of the plaintiff's application must also give the plaintiff an equal right of appeal.

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IV. DECISION ON PRELIMINARY OBJECTION

1. APPELLATE CIVIL JURISDICTION OF HIGH COURT

The substantive law providing for the appellate civil jurisdiction of our High Court is contained in s.27 to s.29 in the following words :

"Appellate civil jurisdiction

27. The appellate civil jurisdiction of the High Court shall consist of hearing of appeals from subordinate courts as hereinafter provided.

Civil appeals from subordinate courts

28.(1) Subject to any other written law, no appeal shall lie to the High Court from a decision of a subordinate court in any civil cause or matter where the amount in dispute or the value of the subject-matter is ten thousand ringgit or less except on a question of law.

(2) An appeal shall lie from any decision of a subordinate court in any proceedings relating to maintenance of wives or children, irrespective of the amount involved.

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Civil appeals to be by way of re-hearing

29. All civil appeals from a subordinate court shall be by way of re-hearing, and the High Court shall have the like powers and jurisdiction on the hearing of appeals as the Court of Appeal has on the hearing of appeals from the High Court."

Under s.28, the general rule is that any "decision" of a subordinate court is appealable to the High Court. Similarly a "decision" of a subordinate court is also appealable in any civil cause or matter where the amount in dispute or the value of the subject matter is RM10,000 or less, so long as it concerns a question of law : s.28(l).

2. WHAT IS A "DECISION"?

Pursuant to s.3 the word "decision" means "judgment, sentence or order, but does

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not include any ruling made in the course of a trial or hearing of any cause or matter which does not finally dispose of the rights of the parties."

The procedural law providing for the bringing of an appeal from a subordinate court to the High Court is contained in O.49, under which r1 contains the definition of a "decision" which includ