Hasan Lah JCA:

Introduction

[1] The applicants in this case are the defendants in the suit filed by the respondent, the plaintiff in the High Court.

[2] By a notice of motion dated 1 October 2007 (encl. 6a) the applicants applied for the following orders:

(a) that the notice of appeal filed by the applicants on 1 June 2007 be amended by substituting case number "22-28-2003" with case number "21-9-2002";

(b) that the applicants be granted extension of time to file the appeal record.

[3] The said application was supported by an affidavit affirmed by the learned State Legal Adviser for the state of Pahang. In his affidavit he explained that the correct case number is 21-9-2002 and not 22-28-2003 as stated in the notice of appeal. The mistake was due to the fact that case number 22-28-2003 was also filed by the plaintiff in respect of the same land which was the subject-matter in case number 21-9-2002.

[4] The applicants had made an application to the High Court to amend the said notice of appeal but it was dismissed by the High Court on the ground that it had no jurisdiction to hear that application.

[5] It was further stated in the applicants' affidavit that due to the mistake in the case number the applicants could not file the appeal record within the stipulated time because the applicants had to make application to amend the case number first.

[6] The affidavit did not mention anything about the nature of the respondent's claim in case number 21-9-2002 and the defence put up by the applicants in their statement of defence. It did not say whether the applicants had a good defence to the respondent's claim in that case.

[7] The applicants' application was filed on 1 October 2007. Prior to that, on 11 September 2007, the respondent had filed an application, also by notice of motion (encl. 4a), for an order that the applicants' notice of appeal dated 1 June 2007 be struck off and the applicants appeal be dismissed on the ground that the applicants had failed to file the appeal record within the time stipulated under r. 18(7) of the Rules of Court of Appeal 1994.

[8] Both the applications were fixed for hearing on the same day ie, 13 February 2008. After hearing submissions made by both parties we unanimously dismissed the applicants' application for extension of time to file the appeal record with no order as to costs of the application and we allowed the respondent's application that the notice of appeal filed by the applicants be struck out and the applicants' appeal be dismissed with costs.

Issues Raised By The Respondent

[9] In opposing the applicants' application for extension of time to file the appeal record learned counsel for the respondent submitted that it should be dismissed for the following reasons:

(a) The applicants did not give good or enough reason for the delay in filing the appeal record. Mistake made by the counsel and the application for amendment to the case number were not good reasons;

(b) In the affidavit-in-support of the application the applicants did not give sufficient materials to show that there were merits in their appeal;

(c) The applicants did not comply with the requirements of r. 18(7) of the Rules of the Court of Appeal 1994 and the Practice Direction of No. 1 of 1996 dated 5 February 1996 issued by the President of the Court of Appeal.

The Law

[10]Rule 18(7) of the Rules of the Court of Appeal 1994 provides:

(7) The memorandum and copies above referred to which, together shall be called the record of appeal, shall be filed at the Registry within eight weeks after the entry of the appeal or within such further time as the Court may allow.

Rule 93 of the said Rules provides:

The Court or a Judge shall have power to enlarge or abridge the time appointed by these Rules, or fix by an order enlarging time, for doing any act or taking any proceeding, upon such terms (if any) as the justice of the case may require, and any such enlargement may be ordered although the application for the sam