Hashim Yeop A Sani SCJ:

[1] Before us the appellant appealed against the refusal of the Judge to allow an extension of time to serve the memorandum of appeal and the appeal record on the respondent.

[2] The notice of appeal originally filed with the High Court Melaka was against the dismissal of an application to set aside a default judgment and the execution order. The application was dismissed on September 28, 1983 whereupon the appellant filed the notice of appeal. The appellant was subsequently served with the notice in Form 141 (that the appeal record was ready) on May 21, 1984. He filed in Court a memorandum of appeal and appeal record on May 29, 1984 but did not however serve the same on the respondent until June 20, 1984. Thus it is clear that the notice of appeal was filed and served within time. The memorandum of appeal was also filed within time. It was only the service on the respondent's solicitors of the memorandum of appeal and the appeal record which was not done within 14 days of the receipt of the notice in Form 141 of the Subordinate Courts Rules, 1980.

[3] In an appeal of this nature the principles to be observed are as set out in Ratnam v. Cumarasmy, [1965] 1 MLJ 228. The rules of the Court must prima facie be obeyed and that there must be some material upon which the Court can exercise its discretion in extending time. There is also a presumption that the Judge had exercised his discretion correctly. This presumption is however rebutted if the appellate Court is satisfied that the discretion has been exercised on wrong principles or otherwise improperly exercised or that there has been a miscarriage of justice. The real issue in Ratnam v. Cumarasamy was whether the Court of appeal was right in dismissing the application and thereby putting an end to the proceeding and barring the appellant from pursuing his undoubted right of appeal when his only fault was that he was a short while out of time in complying with the procedural step in filing the record of appeal.

[5] In Haji Mohamed bin Suboh v. Devadas, [1981] 1 MLJ 136 the Federal Court approved the exercise of judicial discretion as described by Thomson CJ in Veerasingam v. Public Prosecutor; [1958] 1 MLJ 76, 79. The Court of appeal in that criminal reference was asked to set out the powers, principles and procedure governing the grant of extension of time and the lodging of petition of appeal and the permitting of amendments to a petition of appeal by the addition of further grounds or otherwise. Following Bowen LJ in Jones v. Curling 13 QBD 262 the Court of Appeal refused to lay down a hard and fast rule on which the discretion should be exercised when an Act of Parliament or rule which creates the discretion gives it in ample and unqualified terms.

[6] The Court has in fact a wide discretion in granting or refusing extension of time under O 55 r 4(3) provided the discretion is properly exercised. It is to be noted however that the Subordinate Courts Rules 1980 do not provide for the time limit for serving the memorandum and record of appeal on the respondent which omission brought forth some discussions before. Thus at p 150 of the Federal Court judgment in Cheah Teong Tat v. He Gee Seng & Ors, [1974] 1 MLJ 31, 150 there was a reference to the judgments of the late Sharma, J in New India Assurance Co Ltd v. Karam Singh Civil Appeal No 1 of 1970 and Liew