Ong J:

This is an appeal against the decision of the High Court at Ipoh dismissing a claim by the appellant for $47,350.93 as being the cost of certain extra works on a temple building which he alleged he had carried out at the respondent's request.

The appellant is a building contractor and the respondent is the superintendent of a Chinese Temple known as Tet Shen Tong Temple at Jalan Bendahara, Ipoh. At some date prior to the issue of the writ in this action the respondent became the registered proprietor of a piece of land on which the temple now stands. It would appear that some time in 1953 the Teochew community of Ipoh decided to put up a temple for public worship with moneys to be contributed by its devout members, and a Temple Committee was set up, with one Choo See Kee as Chairman and one Khoo Meng Kee as Vice-Chairman and Treasurer. The respondent was not on this Committee, although she was in some way interested in the plans for the building as early as 10 December 1953.

On or about 27 February 1954, a building contract drawn by an architect in standard form was signed by the appellant as contractor, and by the said Choo See Kee and Khoo Meng Kee, representing the Tet Shen Tong Vegetarian Temple, therein described as "the owner". The contract was for the construction within 8 months of an outer shrine and out-buildings of a temple on the "lot of the owner" according to plans approved by the Kinta Town Board and to the additional specifications attached to the said contract, at the total cost of $77,000.

The appellant alleged that he duly completed the said works and was paid the sum of $77,000. He further alleged what formed the subject matter of his action, namely, that-

Apart from the above works and at the same time from March to October 1954, the plaintiff at the request and order of the defendant carried out additional constructional works not provided for in the original plan No TBK. (B) 186/47, costing $47,350.93 inclusive of labour and materials.

On 10 August 1955 the appellant instructed a solicitor Mr. C N Lim to demand from the respondent payment within 14 days of the sum of $31,092.56 as being the balance due for alterations and additions to the temple executed at her request. Four years later, on 29 August 1958 the appellant commenced his action. The defence was delivered on or about 11 September 1958 and in due course the action came up for trial on 11 May 1960 before Smith J, who dismissed the claim with costs. Against his decision the appellant now brings this appeal.

The grounds of appeal fall under two main heads, the procedural and the substantive. Under the former it was argued that the learned trial Judge ought to have granted the appellant's application for an a adjournment to enable him to retain Counsel, alternatively that he ought to have allowed the appellant to discontinue with liberty to file a fresh action; and that having rejected both applications, he ought not to have refused the appellant an opportunity to subpoena witnesses required to testify at the hearing.

I do not think there are any merits whatsoever in these grounds of appeal. The trial was fixed for 13 June 1959 but was put off at the instance of the appellant. Subsequently his then solicitor Mr. K C Chan Jr consented on 27 February 1960 to the trial being set down for 11 May 1960. On 25 March 1960 the appellant, having been informed by Mr. Chan that the latter was about to retire from practice, instructed him to apply for postponement of the hearing to 15 July on the ground that he, the appellant, was intending to go to Thailand on 1 April for a period of about three months. On 30 March Mr. Chan replied expressing his doubt "whether it would be possible to obtain further adjournment of the hearing of this suit now fixed for ll and 12 May 1960" and advising the appellant that his papers bad been handed to Messrs. Wahab, Singh & Peh of Ipoh, when he should consult as to the future conduct of the action. Thu