JUDGMENT

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This is an appeal by the plaintiff ("the appellant") under O 56 r I of the Rules of the High Court ("the RHC") against the decision of the learned Deputy Registrar ordering the affidavit in reply of Chan Chew Guan affirmed on 9 November 1999 ("the said affidavit) be inadmissible and struck out with cost to the second defendant.

The appellant have also filed a similar appeal in respect of Civil Suit No 22-80-99 (MR) where the facts and prayers are similar to the present appeal. Both parties have agreed that the decision of this appeal will be binding on the other appeal.

At the hearing of the appeal the learned counsel for the second respondent raised a preliminary objection that this notice of appeal was issued out of time and is in breach of O. 56 r. 1(3) of the RHC. The learned counsel submitted that since the decision to which the appeal relates was made on 7 April 2000 and the notice of appeal was only issued on 13 April 2000 it had exceeded the five days period within which the notice of appeal should be issued.

O.56 r 1(3) of the RHC provides as follows:-

"Unless the court otherwise order, the notice must be issued within 5 days after the judgment, order or decision appealed ?against was

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given or made and served not less than 2 clear days before the days fixed for hearing of the appeal."

Order 3 r 2 of the RHC provides for the reckoning of periods of time under the RHC. As the period for the issuance of the notice of appeal under O.56 r. 1(3) is less than 7 days, the provisions of O 3 r 2(2) and (5) of the RHC shall apply in reckoning the time limit prescribed thereunder.

O 3 r 2 (2) and (5) provide as follows:-

"(1) ... ... ... ... ...

(2) Where the act is required to be done within a specified period after or from a specified date, the period begins immediately after that date.

(3) ... ... ... ... ...

(4) ... ... ... ... ... .

(5) Where, apart from this paragraph, the period in question, being a period of 7 days or less, would include the day before the weekly holiday, the weekly holiday or public holiday, that day shall be excluded."

Learned counsel for the respondent contended that the five days period for the issuance of the notice of appeal should run from 8 April 2000 as that day is a

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Friday and not a weekly holiday or public holiday and since the notice of appeal was issued on 13 April 2000 it had exceeded the 5 days limit prescribed therefor by one day. Learned counsel for the appellant, on the other hand, contended that in reckoning the period in question the 8th and 9th April 2000, being the day before a weekly holiday and a weekly holiday respectively, should be excluded. It is not disputed that 9 April 2000 which falls on Sunday is the weekly holiday for the State of Sarawak and should be excluded by virtue of O 3 r 2(5) of the RHC in reckoning the 5 days period within which the notice of appeal should be issued. Having excluded the said 9th April 2000 it is clear that the notice of appeal was issued within the prescribed period and as such I can dismiss the preliminary objection on this ground alone. Further I also agree with the learned counsel for the appellant that the 8th April 2000, being the day before a weekly holiday, should also be excluded in reckoning the said period. By reasons aforesaid I dismissed the preliminary objection raised by the respondent on the issue of limitation.

Having disposed of the preliminary objection I will now deal with the appeal in this application. The fact of the case, which led to this appeal, can be briefly summarized as follows. The respondent, by summons in chambers dated 1 8 September 1999, applies under O. 1 4 of the RHC to enter final judgment against the second respondent on the terms set out therein. The application was supported by the affidavit of Wong King Ping, the Branch Manager of the

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appellant, affirmed on 14 September 1 999. In addition thereto the appellant had also filed in two other affidavits in reply, one was affirmed by