Raja Azlan Shah Ag (Malaya) CJ (delivering the judgment of the Court):

The substantial question that arose in the motion before this Court is that of service of the notice of appeal by the applicant qua appellant on the respondent.Leave having been granted to the applicant to appeal from an interlocutory judgment on 13 April 1978 on the same day it was entered, the applicant was required by r. 7 Federal Court (Civil Appeals) (Transitional) Rules, 1963 to file in the Registry his notice of appeal within one month from the judgment and serve a copy of the same on the respondent at the same time. "At the same time" does not mean simultaneously.So long as the service on the respondent was effected within one month of the judgment sought to be appealed from, the service was effective: Tan Ting Kok V. Cheong Lep Keen & Anor. [1969] 1 MLRA 197, [1969] 1 MLJ 153 . But unless both filing and service are effected within this period, the appeal has not been brought to the Federal Court, and no appeal lies except by the special leave of the full Federal Court: Rule 13.

No difficulty presents itself over the filing of the notice of appeal in the Registry of this Court.It was done on 27 April well within the one month allowed.But there is some dispute over the service on the respondent.The respondent averred that up to the present, it has not been served.The appellant would appear to contend that it effected the service by ordinary post on 5 May. What it really contended was that it put through the post a copy of the notice for postal delivery to the respondent but it was obviously unable to say with any certainty whether the letter was in fact delivered and if so, when.It is to be remembered that it had to be delivered on or before 13 May 1978.The appellant nevertheless considered that it had effected the service on the respondent but notwithstanding this contention, applied by notice of motion for an order that:

(a) the service of the notice of appeal on the respondent/plaintiff herein on 5 May 1978 be deemed as valid and effectual service of the same on the respondent, or

(b)the time for service of the notice of appeal on the respondent be extended,

and by an amendment (c) for special leave.

With respect the first order prayed for appears to be an inconsistency.Service is a question of fact.If the notice was served within time, the service was good and no necessity arises for any prayer in aid.But apparently it was thought that service by ordinary post failed to comply with the requirements of r. 32(1) which reads:

Service of any document under these Rules may be effected by:

(a) Handing the document to the solicitor for the party to be served or to any person employed by the said solicitor or, where the party has no solicitor, to the said party in question; or

(b) Posting the document by prepaid registered post addressed to the solicitor for the party, or where the party has no solicitor to the party at the address for service of the party furnished under r. 31 of these Rules.

and therefore it was necessary to seek an order in terms of the first prayer.However, Mr. Khoo for the appellant contended that the word "may" in the said rule is not mandatory but permissive. I agree that this rule does not prescribe the mode of service.It merely prescribes a method which effectively produces evidence of service from the acknowledgment of the respondent on the registration-reply card which would ensure that the appeal has been brought to this Court.Service by ordinary post would be substantial compliance with the requirements of the rule, if there is irrefutable evidence other than the mere fact of posting that the letter was in fact delivered and the delivery was within time, and as has been earlier observed, even the appellant in the quandary it now finds itself is unable to assert affirmatively the actual delivery and the date of the delivery.The prayer is of its nature a rule of procedure which only the Rules Committee can make.

But a