Suffian LP:

This is an application for extension of time to file a record of appeal made under r. 73 of the Civil Appeals (Transitional) Rules, 1963.

The judgment appealed from was delivered on 29 January 1980. Notice of appeal was filed within time on 14 February. On 17 March, the Chief Registrar wrote to the appellants' solicitors saying that the appeal record must be filed on or before 1 April.

They did not do so because by then they had not received the learned Judge's notes of evidence and grounds of judgment.

They could have followed the advice contained in Practice Note No. 2 of 1970 [1970] 2 MLJ lvi and before 1 April sought the respondents' consent to enlargement of time without application to the Court, and Mr. Rekhraj for the respondents told me that if that had been done, in the circumstances his clients would have had no choice but to consent.

The learned Judge's notes of evidence and grounds were supplied to the appellants only on 3 April and they are now ready to file their record of appeal.

Mr. Rekhraj submitted nevertheless that this application should not be allowed - because among other things the appellants did not file this application until 18 April 1980, 18 days after the last day for filing the appeal record, and, secondly, the appellants gave no reason in their affidavit why time should be extended.

Miss Ambiavagar, Counsel for the appellants, stated from the Bar that between 3 and 5 April, after receiving the notes of evidence and the grounds of judgment, she rang up Mr. Rekhraj to ask whether the respondents would agree to extend time, and she was told "No". Hence this application to the Court.

Having considered the cases cited by Mr. Rekhraj, namely: Ratnam v. Cumarasamy & Anor. [1965] 1 MLJ 228; Chong Kueng Ying & Ors. v. Louis Lavagna [1972] 1 MLJ 180 and Gan Hay Chong V. Siow Kian Yuh & Anor. . I am of the opinion that this application should be granted, and I therefore grant it, the record to be filed within a week from today and the appellants to pay costs of this application.

In my view, none of the cases cited precludes me from exercising my discretion in favour of the appellants, this being an application not under r. 13 but under r. 73, which allows an application such as this to be made even after the expiration of the time within which the record should have been filed. Delay by the learned trial Judge in supplying the necessary papers is in my view a good ground for allowing the application, and there is no question here of any mistake by the appellants' solicitors. Failure to comply with Practice Note 2 of 1970 is to save costs, and as appellants have to pay the costs of this application, the respondents should have no cause for complaint. Application granted.