Hashim Yeop Sani FJ:

This is a Notice of Motion taken out by Mr. Karpal Singh, Counsel for the respondent in an appeal against a mandatory injunction granted by the learned Judicial Commissioner, Muar. The notice of motion seeks for an order to have the appeal dismissed with costs on the grounds that the appellants had not complied with the provisions of s. 68(2) of the Courts of Judicature Act 1964 and r. 56 of the Rules of the Federal Court 1980.

For convenience the provisions of the said s. 68(2) and r. 56 are reproduced below:

Section 68(2) of the Courts of Judicature Act 1964 - No appeal shall lie from an order made by a Judge of the High Court in Chambers unless the Judge has certified, after application, within four days after the making of the order by any party for further argument in Court, that he requires no further argument, or unless leave is obtained from the Federal Court or from a Judge of the High Court.

Rule 56 of the Rules of the Federal Court 1980 - No appeal shall, except by leave of the full Court, be brought after the expiration of one month -

(a) in the case of an appeal from an order in Chambers, from the date when such order was pronounced or when the appellant first had notice thereof;

(b) in the case of an appeal against the refusal of an application, from the date of such refusal;

(c) in all other cases, from the date on which the judgment or order appealed against was pronounced.

With regard to the allegation of non-compliance of s. 68(2) of the Courts of Judicature Act 1964, two grounds were raised. The first ground was as set out in the affidavit of Mr. Karpal Singh and that is that the application for leave of the High Court had not been served on the respondent or his solicitors. A short answer to this would seem to be simply that s. 68(2) of the Act does not say that the application for leave must be served as a condition precedent for an order and that no leave would be granted in the absence of such service. In any case the application for leave in this case was made ex-parte and there was no direction for service made by the learned Judicial Commissioner. Counsel for the respondent did not seem to pursue this ground seriously but much argument was however focussed on the appellants' contention that there was in fact no necessity to apply for leave at all in this case because the order appealed against was made in open Court and not in Chambers although the subject matter originated from an application in Chambers. For convenience O. 32 r. 11 of the Rules of the High Court, 1980 is reproduced below:-

11. (1) The Judge in Chambers may direct that any summons, application or appeal shall be heard in Court or shall be adjourned into Court to be so heard if he considers that by reason of its importance or for any other reason it should be so heard.

(2) Any matter heard in Court by virtue of a direction under para. (1) may be adjourned from Court into Chambers.

It was the contention of the appellants that leave was applied for in this case out of caution as the solicitors for the appellants were not absolutely certain whether the order of the Judicial Commissioner dated 28 February 1982 was to be regarded as an order made in open Court although it is clearly stated at the top of the order to be an order in open Court. This uncertainty is understandable because of the difficulties encountered in the interpretation of the previous O. 54 r. 22 of old Supreme Court Rules 1957.

Section 68(2) of the Courts of Judicature Act 1964 and O. 54 r. 22A of the old rules attracted diverse opinions in the superior Court. See T O. Thomas V. K C I Reddy & Anor. [1974]. The problem was further compounded by the word "interlocutory" in the old s. 68(2) of the Courts of Judicature Act. The position at present has been made somewhat less complicated firstly by the amendment to s. 68(2) of the Courts of Judicature Act which deleted the word "interlocutory" and secondly by the reenactment of the new O. 32 r.