1. Application for extension of time to file Record of Appeal; notice of appeal filed late, unsigned, and never served. (Para 1 , 2 , 3 , 4 , 5 , 6 )
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2026 MarsdenLR 956
HIGH COURT MALAYA JOHOR BAHRU
NORADURA HAMZAH, JC
KAVITHA NADARAJAN & ANOR – Appellant
Versus
PRAGASH SAVARIMUTHU – Respondent
[Civil Appeal No: JA-12ANCvC-34-12/2025]
Petitioner Advocates:Cassian Anthony Camillus ,Respondent Advocate: Maithily Manoher
An appeal is not competent until the notice of appeal is both filed and served within the prescribed time; failure to serve is an incurable defect rendering the appeal non-existent.
Headnote:(A) Rules of Court 2012 (ROC 2012) - Order 3 rule 5 - Order 41 rule 4 - Order 55 rule 5(2) - Order 92 rule 4 - Appeal - Competency - Filing and service of notice of appeal - Mandatory requirements - Effect of failure to serve notice of appeal - A notice of appeal must be both filed and served within time for an appeal to be competent; failure to serve is fatal and incapable of cure. (Paras 16-18)
(B) Practice and Procedure - Extension of time - Factors - Length of delay - Reasons for delay - Chances of success - Prejudice - A litigant who leaves filing to the last day and is overtaken by system difficulty cannot readily blame the system; default of solicitor is not ordinarily an acceptable excuse. (Paras 25-27)
(C) Practice and Procedure - Affidavit - Affidavit in reply - Failure to file - Positive assertion on a material matter not contradicted on affidavit may be treated as admitted; submissions are not evidence. (Para 29)
Facts of the case:
The Appellants (Defendants) applied for an extension of time to file the Record of Appeal. The Notice of Appeal was filed one day out of time, was unsigned, and was never served on the Respondent (Plaintiff). The appeal was directed only at the dismissal of an application for a stay, not the dismissal of applications to set aside three judgments. The Appellants failed to file an application to extend time for the Notice of Appeal despite a court direction to do so.
Findings of Court:
(1) No valid appeal exists because the notice of appeal was not both filed and served within time; the failure to serve is fatal and cannot be cured. (2) Even assuming a competent appeal, the court would not exercise its discretion to extend time due to inadequate reasons for delay, limited chances of success, and prejudice to the Respondent.
Issues: (1) Whether there is a competent appeal in existence capable of supporting an application to extend time to file the Record of Appeal. (2) Whether the court should in its discretion grant the extension sought.
Ratio Decidendi: An appeal is not brought until the notice of appeal is both filed and served within time; failure to serve renders the appeal incompetent and incurable, so no valid appeal exists to which the time for filing a Record of Appeal can attach.
Result: Application (Enclosure 4) dismissed with costs of RM10,000.00.
Legal Category Hierarchy
Table of Contents
2. Appellants cite e-Kehakiman disruption; Respondent argues no valid appeal exists and defects are incurable. (Para 10 , 11 , 12 )
3. Enclosure 4 dismissed; defendants ordered to pay costs for lack of competent appeal. (Para 31 , 32 )
4. What is required to bring a competent appeal from a Sessions Court decision?
Filing and service of notice of appeal within 14 days as per O 55 r 5(2) ROC are mandatory; failure to serve is fatal and incurable. (Para 16 , 17 , 18 , 19 )
5. Can an application for extension of time to file the Record of Appeal be granted if no competent appeal exists?
No, the application presupposes a competent appeal; without a valid notice of appeal there is nothing to attach time to. (Para 20 , 21 , 22 , 23 )
6. What factors are considered in exercising discretion to extend time for filing a notice of appeal?
Length of delay, reasons for delay, chances of success, prejudice to respondent, and overall justice of the case. (Para 25 , 26 , 27 )
7. Can the court's inherent jurisdiction under O 92 r 4 ROC override mandatory procedural requirements for appeal?
No, inherent jurisdiction cannot be used to cure incurable defects or override mandatory rules. (Para 30 )
JUDGMENT
Enclosure 4
(The Appellants' Application For An Extension Of Time To File The Record Of Appeal)
Introduction
[1] Enclosure 4 is the Appellants' application for an extension of time to file the Record of Appeal in this appeal. It is brought under O 3 r 5 Rules of Court 2012 (ROC 2012) and O 41 r 4 ROC 2012. The Respondent opposes it.
[2] The Appellants are the Defendants, and the Respondent the Plaintiff, in Johor Bahru Sessions Court Civil Suit No: JA-A52NCvC-151-06/2023. For consistency, parties in this appeal will be referred to as they were in the Sessions Court.
Background
[3] On 2 December 2025, the Sessions Court dismissed a number of the Defendants' applications. These included their applications to set aside three judgments entered against them dated 9 June 2024, 22 August 2024 and 9 December 2024 (Enclosures 55, 62 and 63) and their applications for a stay (Enclosures 53, 57 and 59).
[4] The Notice of Appeal in this appeal is directed only at the dismissal of encl 53. The Defendants did not appeal against the dismissal of their applications to set aside the three judgments. Those judgments therefore stand.
[5] The Notice of Appeal is dated 15 December 2025. The decision appealed against having been pronounced on 2 December 2025, the time within which to file and serve the Notice of Appeal under O 55 r 5(2) of the ROC expired on 16 December 2025. The Defendants' evidence is that an attempt to file the Notice of Appeal was made on 16 December 2025, but that the e-filing system ("e-Kehakiman") was then unavailable. The Notice of Appeal was filed the following morning, on 17 December 2025 at 7.45am. It bears the Sessions Court registry's endorsement "Notis Rayuan difailkan di luar masa" - a Notice of Appeal filed out of time.
[6] It is not in dispute and in any event the Defendants filed no affidavit denying that the Notice of Appeal was:
(a) Filed out of time;
(b) Not signed; and
(c) Not served on the Plaintiff or the Plaintiff's solicitors.
[7] On 26 January 2026 the matter came up for case management by way of e-review. This Court asked why the Record of Appeal had not been filed. The Defendants' then solicitor explained that the Notice of Appeal had been filed late because of the system disruption and asked for time to file the Record of Appeal. The Court asked whether the Plaintiff objected to the late filing of the Notice of Appeal. On 27 January 2026, the Plaintiff confirmed its. This Court then directed the Defendants to file the appropriate application to obtain leave for an extension of time to file the Notice of Appeal and fixed a further case management on 10 February 2026 for the status of that filing. At a subsequent case management on 26 February 2026, this Court fixed 10 March 2026 as the final date by which the Defendants were to regularise their action in this appeal.
[8] The Defendants did not file any application to extend the time to file or serve the Notice of Appeal. Instead, on 11 March 2026, a day after the final date this Court had fixed, they filed encl 4, seeking an extension of time to file the Record of Appeal.
[9] The Defendants are now represented by Messrs The Law Chambers of Cassian Anthony, who I was informed act pro bono. Their former solicitors were Messrs Francis Augustine Law Chambers.
The Parties' Cases
[10] The Defendants' case, in essence, is that the late filing of the Notice of Appeal was caused by the e-Kehakiman disruption and not by any fault of their own. They were thereafter left uncertain as to the status of the appeal. This Court should exercise its inherent jurisdiction under O 92 r 4 of the ROC to allow the Record of Appeal to be filed out of time so that the appeal may be heard on its merits.
[11] The Plaintiff's case is that the application is incompetent and misconceived. It contends that the supporting affidavit is defective; that the Notice of Appeal is defective, was filed out of time and was never served, so that no valid appeal exists; that the Defendan
