JUDGMENT

Raja Azlan Shah J (delivering oral judgment):

The appellant in this case is a business man in Klang and he claims that $552 is the balance owing to him on an IOU chit dated 1 February 1952 which was executed by the respondent in favour of him. Paragraph 4 of the statement of claim avers that on three occasions in 1963 the respondent paid him a total sum of $48. That is denied by the respondent. The case came up for hearing from time to time but was postponed for various reasons. The case was finally heard before the learned magistrate at Klang on 5 October 1965. On that day both the appellant and his Counsel were absent but respondent and his Counsel were present. In the circumstances the learned magistrate dismissed the case with costs.

It is in that state of affairs that the case comes before me this morning. The appellant now claims for a new trial on the ground that it is not his mistake that his Counsel had failed to appear.

To my mind, so long as the claim shows some merits and justice can be done by compensating the other side for any costs thrown away, then a new trial ought to be ordered. In the present case Counsel for the respondent sought to argue that the cl