This is an appeal against the order of the learned trial President of the Sessions Court dismissing the application of the appellant for summary judgment under 0.26A of the Subordinate Courts Rules 1980.

In its Statement of Claim dated September 29, 1982, the appellant claimed the sum of $18,510.87 being the price of diesel and oil products ordered by and delivered to the respondent's vessels. By his Defence and Counterclaim dated November 22, 1982 the respondent denied owing the said sum or at all and further alleged that he had been wrongfully charged with what he termed as "charter fees" to the extent of $18,569.89 which he counterclaimed as money had and received to his use.

Application for summary judgment was taken out by the appellant on February 2, 1983. It was heard and dismissed on February 18, 1983. Against the dismissal the appellant appeals.

At the hearing of this appeal a point of procedure was raised by the respondent in that he received the appeal record after the expiration of the 14 days provided in the Rules of the High Court, 0.55 r.2(2) and that no application for extension of time to serve the appeal record was made. He contended that the appeal should be dismissed. In support of the argument the case of Liew Chee Tat v Lok Moon & Others [1972] 2 MLJ 29 was cited. But in that case it was the notice of appeal that was served late and not the appeal record. To my mind the distinction is not immaterial because under the Subordinate Courts Rules 1980 (SCR) 0.49 r.2(1), appeals to the High Court are to be brought by giving notice of appeal whereas the appeal record contains such matters as are specified in 0.49 r. 3(1) of S.C.R.

It is also not insignificant to note that there is a difference in the practice between appeal from a decision of the High Court to the Federal Court and appeal from a decision of the Subordinate Court to the High Court. In the former case the memorandum of appeal is attached to the appeal record which is prepared by the appellant or his counsel whereas in the latter case the memorandum of appeal is prepared after receiving the appeal record prepared by the court registry and is, in practice, filed and served as such (i.e. memorandum of appeal). Hence in an appeal from the Subordinate Court, if a copy of the memorandum of appeal (called "Petition of Appeal" in our instant case) has been served as in the instant appeal, non-service or late service of the appeal record does not preclude the respondent from or cause delay to his knowing the grounds of appeal stated in the memorandum of appeal which is served separately. The same, however, may not be said in the case of an appeal from the High Court to the Federal Court since the memorandum of appeal is attached to the appeal record and usually forms part thereof. There is also no suggestion that the respondent was in any way prejudiced by the late service of the appeal record. In fact, it appears correct as submitted by counsel for the appellant that prior to the service of the appeal record, the respondent already had all the documents therein included except, perhaps, the grounds of judgment. Whilst not in any way suggesting that due compliance of the provisions of the rules may be lightly disregarded, I am, in the circumstance, inclined to hold that the appeal is not vitiated by the late service of the appeal record.

In dismissing the application the learned trial President said:

"It appears that the application was made under 0.26A but that Order or Rule applies only where the defendant has entered an appearance, not where as here the defendant has delivered or served his defence and the pleadings were deemed to be closed. It seems to me that the plaintiff is rather late in the day to apply or invoke or use the process. …"

With respect, unlike in the High Court, the requirement of entering appearance by a defendant in an action in the subordinate court before making an application for summary judgment has, at the mate