Syed Agil Barakbah 'J:

This is an application by notice of motion by the second appellant for an order that he be granted leave to serve a copy of the notice of appeal on the respondent notwithstanding that the time reserved to serve such copy has expired.

Mr. Karpal Singh appeared for the appellants and Mr. Mayandi for the respondent.

The second appellant in his accompanying affidavit stated that on 14 February 1972, judgment was given in the Sessions Court, Alor Star, in favour of the respondent (plaintiff) for vacant possession of a piece of land and for damages against him and the first appellant who was co-defendant in the said action. On 21 February 1972, he despatched several copies of notice of appeal against the said decision to the Sessions Court, Alor Star. However, he did not serve a copy of such notice on the respondent or his solicitors. The reason for his failure was ignorance of procedural law. It appears that he was not represented by Counsel in the Court below and only engaged one for the purposes of the appeal. When his solicitors served the memorandum of retainer, memorandum and record of appeal, they were informed by the respondent's solicitors that notice of appeal had not been served on the respondent nor on them and that they would apply to the Court for dismissal of the appeal before the hearing.

The procedure for filing notice of appeal against the decision of the sessions Court, whether the whole or any part thereof, is governed by O. 39 r. 2 of the Subordinate Courts Rules, 1950. Rule 2(3) requires such notice to be filed within fourteen days from the day on which such decision was pronounced. Whereupon the Court appealed from shall supply to the appellant a certified copy of the judgment or grounds of decision, as the case may be, on payment of the required fees. Sub-r (6) requires such notice of appeal to be served by the appellant on all parties directly affected by the appeal or their respective solicitors.

Although no time limit within which the appellant has to serve a copy of such notice is expressly provided in sub-r (6), by virtue of r. 3(1) of the same Order, it can safely be implied that the appellant has to do so within the same period as provided for filing such notice in the Court appealed against, i.e. within fourteen days within which such decision was pronounced. That such is the intention of the legislature is clear because it is only after the appellant has complied with the requirements of r. 2 which includes sub-r (6) that the Court appealed against is bound to prepare all the necessary records as required under r. 3(1) after which notice that such records are ready will be served on the appellant by the said Court.

A number of authorities were cited which in general requires the applicant to give special reasons to move the Court to extend time in his favour.

In John Puddicombe Wilkins & Two Ors. v. John Patrick Kenelm Wilkins & Anor., [1951] 1 MLRH 285; [1951] MLJ 80 Thomson J (as he then was) took the view that there must be special circumstances which would justify the Court in granting the application sought. That was an application for leave to appeal out of time. In the course of his judgment, His Lordship discussed and applied the principle in the case of DC Butler-Madden v. Krishnasamy, [1947] MLJ 182 which in turn followed the principle laid down in the English Court of Appeal in Re Coles and Ravenshear [1907] 1 KB 1. It was held in that case that a mistake in law on the part of the appellant's legal advisers was not sufficient ground for granting special leave to appeal under RSC O. 58 r. 15 as it stood prior to 1909. The principle was recently followed by the Federal Court in Chong Kueng Ying & Ors. V. Lovis Lavagna [1972] 1 MLRA 54; [1971] 2 MLJ 225 Suffian FJ said:- "The law here, however, is the same as the pre-1909 English law: the mistake of a legal adviser is not a sufficient ground for granting leave" to appeal out of time. In that case the applic