Shaik Daud Ismail JCA (majority):

[1] This was an appeal from the decision of the Ipoh High Court whereby the learned judge entered judgment in favour of the respondents. The respondents had filed a writ of summons against the appellants for vacant possession of property known as HS (D) 3761 Lot 16185 and consequential orders. The claim arose from a sale and purchase agreement executed on 15 September 1992 between the respondents and the appellants.

[2] The appellants had filed a notice of motion dated 13 March 2001 for an order that they be granted an extention of time to file supplementary records of appeal, to include evidence which was left out, ie the evidence of the first respondent.

[3] Learned counsel for the respondent objected to the notice of motion on the ground that there was undue delay in applying for the extention and that no explanation was given whatsoever for the delay.

[4] On going through the records of the motion, I find that the learned judge of the High Court gave his decision on 14 August 2000. Notice of appeal was filed on 7 September 2000, and the appeal records were filed and served on 1 December 2000. There was therefore, a delay of some three months over. The affidavit in support of the motion affirmed by the solicitor for the applicant gave no reason whatsoever as to the failure to include the evidence of the first respondent in the appeal records. Merely saying that they had just been made aware of this is no explanation either. Some material ought to have been put before the Court to enable the Court to exercise its discretion to allow an extention of time. I have always been of the view that a delay per se is not fatal but a delay without a reasonable explanation in my view is fatal. The mistake of the appellant's solicitors did not constitute a sufficient ground for an extention of time, see Gan Hay Chong v. Siow Kian Yuh & Anor, [1975] 2 MLJ 129. The Court of Appeal in Tan Siew Peng v. OCBC Bank (M) Bhd, [1998] 2 MLJ 420; [1998] 3 AMR 2365 held:

The Court has power exercisable at its discretion, to extend the time limited for filing or service of any documents or the doing of any act under the Rules of the of Appeal 1994 ('the Rules'). It is trite that the burden is upon an applicant who seeks an extention of time to make available sufficient material upon which the Court may exercise discretion in his favour.

[5] In the present case, I agree with the submission of the learned counsel for the respondents that there was insufficient material placed before the Court to warrant the exercise of discretion to allow for the extention of time. No reasons were advanced by the applicant in the affidavit in support of the application. It is my view that the application for extention of time was devoid of any merit. Therefore, the notice of motion is dismissed with costs.

[6] As for the appeal proper, in the light of the dismissal of the motion above, no proper records of appeal are before the Court. Although the draft index to the records of appeal mentions notes of evidence, the notes are missing. The Court is in no position to proceed with the appeal with the defective records. It was submitted that evidence of the first plaintiff is vital for the proper hearing of the appeal. Rule 18(4) of the Rules of the of Appeal 1994 has therefore not been followed. Therefore, there are no proper records of appeal before the Court. The appeal is struck off with costs. We order the deposit to go to account of costs.