JUDGMENT

Mathew CJ:

(with whom Whyatt CJ (S) and Buhagiar J agreed):

[1] This is in effect an appeal against an interlocutory order of the Court refusing an adjournment. The learned Judge did not have before him, the material in support of the appellant's application for an adjournment which we have today as a result of admitting further evidence by way of affidavit. The learned Judge had every reason to believe on the material before him that the appellant had known of the date of hearing several weeks previously. The learned Judge exercised his discretion on what he must have regarded as a flimsy ground, that owing to passport difficulties the appellant could not return from India in time for the hearing of the case.

[2] The case had been fixed by the Registrar on 7 May 1955 for bearing on the 7 June 1955. It is apparent from the affidavits that the appellant was not aware of the hearing date until the 30 of May. This was due to the appellant's solicitor's letter informing him of the date of hearing reaching the appellant by surface mail and not by air mail. It is clear that the appellant could not have reached Kuala Lumpur for the hearing on the due date. It is true that, had the appellant been present on the hearing date, he would have found himself in the position that his amended defence was not before the Court, for sufficient steps had not been taken to file it. But this, in my view, is not material, for the question to be determined was whether the appellant had good grounds for succeeding on his application for an adjournment. Unfortunately, Mr Skrine who made the application in the Court below was unable to place all relevant facts before the learned Judge, as he had not at that stage been provided with all necessary material to support his application.

[3] I am only concerned with the period between the 7 May and the 7 June 1955 and no regard need be paid to the two earlier postponements in the hearing dates, as on the first occasion the case was taken out of the list by the Registrar, and on the second occasion the postponement was the result of leave being granted to amend the statement of defence. The present application was in fact the first application by the appellant for an adjournment.

[4] In exercising its discretionary power to grant adjournments, the Court proceeds on the basis laid down by Atkin LJ in the case of Maxwell v. Keun [1928] 1 KB 645 in the following passage (at p 657):

"... in the exercise of a proper judicial discretion no 'Judge ought to make such an order as would defeat the rights of a party and destroy them altogether, unless he is satisfied that he has been guilty of such conduct that justice can only be properly done to the other party by coming to that conclusion.

[5] I agree with the following passage of the learned Lord Justice in the same case when he says (at p 653):

".... the Court of Appeal ought to be very slow indeed to interfere with the discretion of the learned Judge on such a question as an adjournment of a trial, and it very seldom does so; but on the other hand, if it appears that the result of the order made below is to defeat the rights of the parties altogether, and to do that which the Court of Appeal is satisfied would be an injustice to one or other of the parties, then the Court has power to review such an order, and it is, to my mind, its duty to do so."

[6] I am satisfied that if the learned Judge had the material before him which we have today, he would have exercised his discretion in favour of the appellant. The fact that he did not have the material before him in no way imputes blame to Mr Skrine, who had only been instructed by other solicitors to appear and apply for an adjournment, in a letter dated the 4 June 1955 I think that an injustice may occur if the appellant is deprived of his right to defend the suit.

[7] I would allow he appeal and reserve the question of the order to be made and the costs to be awarded for further argument.