JUDGMENT

Mohd Hishamudin bin Mohd Yunus JC:

This is an application by the appellant to file the memorandum of appeal out of time. Counsel of both parties have requested me to make a ruling on the interpretation of O. 55, r. 2 of the Rules of the High Court 1980, in particular on the question as to when the fourteen day period begins to run in cases where the appellant is represented by Counsel. Does time begin to run from the date of the service of Form 141 on the appellant notifying the appellant that the grounds of judgment and notes of evidence are ready, or from the date when the appellant in fact received the grounds of judgment and notes of evidence from the Subordinate Court? In the case before me, it is an agreed fact that Form 141 was received by the appellant's solicitor on 30 June 1992, and security for costs was paid on 3 July 1992, but the solicitor received the grounds of judgment and the notes of evidence from the Subordinate Court only on 15 July 1992.

Before 1 January 1991, O. 55 r. 2(1) states:

2(1) The appellant shall, within fourteen days from the date of service on him of the notice referred to in O. 49 r. 3 subrule (2) of the Subordinate Courts Rules 1980 or within such extended time as the High Court may allow, file in the High Court in duplicate a memorandum of appeal in Form 113A.

(2) The appellant shall within the like period serve each respondent with a copy of such memorandum and a copy of the appeal record.

However, the Rules of the High Court (Amendment) (No. 3) Rules 1990 (PU(A)462/1990) amended subrule(1) of the above r. 2 of O. 55; and sub-rule (1) as amended reads:

2. (1) The appellant shall, within fourteen days from the date of service on him of the notice in Form 141 under O. 49, r. 2 sub-rule (4) or r. 3 sub-rule (2) of the Subordinate Courts Rules 1980 (as the case may be), file in the High Court in duplicate a memorandum of appeal in Form 113A.

Both learned Counsel submit that there is an uncertainty as to the law regarding as to when the fourteenday period begins to run for the purpose of filing the memorandum of appeal. Learned Counsel for the appellant submits that it can be argued that the fourteen day period begins to run from the date of the service on the appellant the grounds of judgment and the notes of evidence. He quotes the following passage from the judgment of Eusoff Chin J. (as he then was) in Elayachee v. Woo Siu Tip [1991] 3 MLJ p. 108 at p. 110 where his Lordship said:

I agree with Lamin J. in Abdul Ghani's case, that the memorandum of appeal is a necessity and must be filed within 14 days after the service on the appellant's solicitor, of the notes of evidence and the grounds of judgment by the Subordinate Courts.

With respect, in my view, with the amendment to O. 55, r. 2 sub-rule (1) of the RHC vide PU(A) 462/90 there is no room anymore for anyone to argue that there is still uncertainty in the law. The very purpose of the amendment vide PU(A) 462/90 was to overcome the ambiguity that had existed as regards the interpretation of O. 55 r. 2 prior to the amendment and with the amendment I think the position has now been made clear.

I do not propose to indulge in any analysis of the relevant provisions of the Rules of the High Court and Subordinate Courts Rules since I do not think it is necessary for me to do so in the light of recent decided cases which have thrown much light on the subject. I think it would suffice if I only refer to the pertinent part of the judgment of Eusoff Chin J. (as he then was) in Elayacheeand also to the judgment of K.C. Vohrah J. in Parasuraman a/l Kuppan v. Sazali bin Akhir & Anor. (as reported in "Judgment Today" No 3/93 CLJ). In Elayachee, the learned Judge (at page 110) explained:

Order 49 r. 3(1) of the SCR was then amended by PU(A) 67/88. This amendment required that the preparation of the record of appeal must be done by the Subordinate Courts only in an appeal where the appellant was unrepresented by Counsel. PU(A) 67/88 a