Harun Hashim SCJ:

This was a claim for delivery of vacant possession in the Magistrate's Court at Tapah. The learned Magistrate allowed the claim on 25 January 1984. The defendants being dissatisfied with the decision appealed to the High Court at Ipoh. The notice of appeal was filed in the Magistrate's Court on the same day (25 January 1984) but it was not served on the plaintiff.

The defendants then applied to the Magistrate for stay of execution but this was refused on 15 February 1984. The defendants then changed solicitors on 21 May 1984.

On 5 June 1984, the defendants applied to the High Court for stay of execution of the Magistrate's order pending the disposal of the appeal. This was allowed by the High Court on 29 June 1984 after an inter partes hearing.

By letter dated 12 July 1989 the Magistrate asked the solicitors for the defendants to pay a deposit of RM250 towards the costs of the appeal. This letter was copied to the plaintiff's solicitors. The defendants' solicitors by registered letter dated 17 July 1989 to the first defendant requested him to deposit RM250 into Court. However, this letter did not reach the first defendant. By letter dated 15 September 1989, the Magistrate wrote again to the defendants' solicitors asking them to pay the deposit of RM250 plus another RM180.40 sen for costs of preparing the appeal record. The first defendant was not aware of this letter as he was away in Kuala Lumpur until he returned to Tapah in November 1989. By this time, the Magistrate had notified the defendants' solicitors that the appeal was deemed to have been withdrawn for having failed to pay into Court the RM250.

Consequently, the plaintiff's solicitors by letter dated 4 December 1989 to the defendants' solicitors demanded compliance with the judgment of 25 January 1984 within 14 days. The defendants' solicitors then wrote to the defendants by letter dated 14 December 1989 to ask them to deliver vacant possession. Upon receipt of that letter on 18 December 1989, the first defendant immediately deposited RM250 with his solicitors.

The defendants then on 23 January 1990 applied to the High Court for extension of time to serve the notice of appeal on the plaintiff. The learned Judge allowed the application on 2 February 1990. Hence this appeal by the plaintiff.

This appeal raises several procedural issues.

Mode of service

It was contended that the inclusion of a copy of the notice of appeal in the application to the High Court for stay of execution of the Magistrate's order of 25 January 1984 and served on the respondent on 20 June 1984 is deemed good service on the respondent. We think not. Order 49 r. 2(6) of the Subordinate Court Rules 1980 (SCR) provides that:

..the notice of appeal shall be served by the appellant on all parties directly affected by the appeal or their respective solicitors.

In the instant case, what was served on 20 June 1984 was the originating motion under the provisions of the Rules of the High Court 1980 (RHC). There was accordingly no service of the notice of appeal under SCR O. 49 to bring an appeal into existence: Gurbachan Singh V. Seagrott & Campbell (no. 2).

What to serve

SCR O. 49 r. 2(3) provides that the notice of appeal shall be filed within 14 days from the day on which the decision was pronounced. It follows that the notice of appeal to be served on the respondent under SCR O. 49r. 2(6) must show the date on which the notice of appeal was filed in the Court appealed from. This will show the respondent that SCR O. 49 r. 2(3) has been complied with.

When to serve

It was contended that under the Subordinate Court Rules, no time limit has been prescribed and therefore the notice of appeal can be served on the respondents at any time. There is a historical background for this contention.

The Subordinate Court Rules 1950 provided:

O. XXXIX

Rule 2(3) The notice of appeal shall be intituled and filed in the proceedings in which the decision appealed from was pronounced, and shall