Mohd Saari Yusoff JCA:

In this appeal, the 1st defendant (hereinafter referred to as "the appellant") is dissatisfied with the order of the High Court granted on 20 October 1998.

Factual Background

The respondent filed this action against the appellant who stood as a guarantor of an overdraft facility for RM500,000 granted to one Wira Kris Agricultural Services Sdn Bhd ("the borrower'). The appellant filed his defence and also filed summons in chambers (SIC) for an order under O. 18 r. 19(1)(b) and (c) RHC 1980to strike out the respondent's writ and statement of claim.

SIC was part-heard but on the date of its continued hearing on 17 September 1994, the respondent's counsel was absent. The court proceeded with the hearing and granted the application to strike out the respondent's writ and statement of claim.

Subsequently, the respondent filed two applications:

(i) an application to set aside the order granted on 17 September 1994.

(ii) an application to amend SIC (encl. 16).

On 20 October 1998, the court allowed both the applications. Against that order, the appellant appeals to this court.

It is not in dispute that the main appeal record was filed within time, which appeal record did not include sealed copy of the order granted on 20 October 1998. From the last date of filing the appeal record to this date (20 September 2000), there is a lapse of about 1 1/2 years.

The learned counsel for the respondent raised a preliminary objection on the ground that the appellant had not obtained leave to include in the appeal record the sealed copy of the court order granted on 20 October 1998.

Issue

Issue for determination is whether the appeal is properly before the court.

Finding

In this regard, it is pertinent to refer to the relevant statutory provisions. For ease of reference, r. 18(4) and (7)of the Rules of the Court of Appeal 1994 are reproduced below:

18 Memorandum of appeal

(1) ...

(2) ...

(3) ...

(4) The appellant shall attach to such memorandum copies of the proceedings in the High Court, including -

(a) copies of the documents in the nature of pleadings, so far as is necessary for showing the matter decided and the nature of the appeal:

(b) a copy of the judge's note of the hearing of the cause or matter in which the decision appealed against was given;

(c) copies of all affidavits read and of all documents put in evidence in the High Court so far as they are material for the purposes of the appeal, and subject to rule 101 if such documents are not in the national language, copies of certified translations thereof;

(d) a copy of the judgment, decree or order appealed from;

(e) a copy of the written judgment or grounds of decision of the Judge, or a copy of the agreed notes of judgment as prepared by the parties and approved by the Judge, if such written judgment, grounds of decision or agreed notes as approved is made available within the time limited for filing the record of appeal, provided that if the Court so orders, the absence of the written judgment, grounds of decision or agreed notes shall not prevent the appellant from proceeding with his appeal; and

(f) a copy of the notice of appeal.

(5) ...

(6) ...

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

(8) ...

(9) ...

(10) ...

For the appellant, En. Teh Meng Teck argued that for purpose of tendering the sealed copy of the court order, it would suffice if the appellant were to tender the sealed copy of the court order at any time before the hearing of this appeal, as here. The learned counsel relied on Practice Direction No. 1 of 1992.

On the requirement to comply with the aforesaid statutory provisions, in Capital Insurance Bhd v. Kassim Mohd Ali[2000] 1 CLJ 269at p. 276, Mokhtar Sidin JCA said:

Is clear to us that the Practice Direction allowed an appellant to file without leave