Searching Case Laws & Precedent on Legal Query.....!
Analysing the retrieved Case Laws
Scanned Judgements…!
Searching Case Laws & Precedent on Legal Query.....!
Analysing the retrieved Case Laws
Scanned Judgements…!
Mandatory Nature of Filing Record of Appeal Within Time - Several sources emphasize that the requirement to file the record of appeal within the prescribed period under Order 55 Rule 4(8) of the Rules of Court 2012 is mandatory. Failure to comply leads to the appeal being struck out or deemed invalid, as courts have consistently upheld the mandatory status of this rule ["
LIM KWEE FEN & ANOR vs KT HOME MART SDN BHD - 2022 MarsdenLR 296
"], ["CHAI KIN HIN & ORS vs GOH MIAW HENG & ANOR (ENCLS 1 & 5) - High Court Malaya Shah Alam
"], ["TAMIE CHAN SUET YI vs PAVAN RAMESH KHEMANI & ANOR - High Court Malaya Kuala Lumpur
"], ["ROSLI ALMANZUR vs MOHAMD RIDZWAN KITHUR MOHAMED - High Court Malaya Georgetown
"].Use of the Word Shall Indicates Mandatoriness - The use of shall in Rule 55(4)(8) is interpreted as a clear indication that the service of the record of appeal within the stipulated time is mandatory and must be strictly adhered to. Non-compliance cannot be overridden by discretionary or procedural rules ["
LIM KWEE FEN & ANOR vs KT HOME MART SDN BHD - 2022 MarsdenLR 296
"], ["TAMIE CHAN SUET YI vs PAVAN RAMESH KHEMANI & ANOR - High Court Malaya Kuala Lumpur
"].Consequences of Non-Compliance - Courts have dismissed appeals or struck out notices of appeal when the record of appeal was not filed or served within the required time, especially if the failure is deliberate or without reasonable excuse. Extensions of time are only granted under specific circumstances, often requiring application and showing acceptable reasons; mere reliance on discretion without proper application is insufficient ["
NURUL ATHILAH AZMI vs DAYANG SOFIA SHAHRIN & ORS - High Court Malaya Shah Alam
"], ["AT ENGINEERING SOLUTION SDN BHD vs RANK ELECTRONICS SDN BHD - High Court Malaya Georgetown
"], ["KEPONG INDUSTRIAL PARK SDN BHD vs LOW NG MOI - High Court Malaya Kuala Lumpur
"].Extensions of Time - While Rules of Court 2012 allow for extensions of time for filing or serving documents (Order 55 Rule 13), such extensions do not override the mandatory requirement for timely filing and service under Rule 55(4)(8). Extensions are granted based on just reasons and proper applications, not as a substitute for compliance ["
CHAI KIN HIN & ORS vs GOH MIAW HENG & ANOR (ENCLS 1 & 5) - High Court Malaya Shah Alam
"], ["KEPONG INDUSTRIAL PARK SDN BHD vs LOW NG MOI - High Court Malaya Kuala Lumpur
"].Electronic Service and Non-Physical Service - Some cases discuss whether email service suffices. The courts have emphasized that the rule explicitly requires physical service on respondents, and email service may not meet the mandatory requirement unless expressly permitted or accepted by the court ["
TAMIE CHAN SUET YI vs PAVAN RAMESH KHEMANI & ANOR - High Court Malaya Kuala Lumpur
"].The requirement to file and serve the record of appeal within the time period specified under Order 55 Rule 4(8) of the Rules of Court 2012 is mandatory. Non-compliance results in the appeal being struck out or rendered invalid. While extensions may be granted, they are not a substitute for strict adherence, and proper application must be made. The use of the word shall underscores the non-discretionary, obligatory nature of this procedural step. Therefore, parties must ensure timely filing and service of the record of appeal to maintain the validity of their appeal.
In the fast-paced world of litigation, missing a deadline can spell disaster for your case. One critical procedural step that often trips up appellants is the filing of the under (3) of the . But is this requirement mandatory? This question arises frequently in , where strict adherence to can determine whether an appeal lives or dies.
If you're an appellant racing against the clock or a legal practitioner advising clients, understanding the mandatory nature of this timeline is essential. This post dives deep into the legal framework, key case law, and practical recommendations to help you navigate this requirement effectively. Note: This is general information and not specific legal advice. Consult a qualified lawyer for your situation.
Is the requirement to file the within the time period provided under (3) of the mandatory?
The short answer is yes—it is generally considered mandatory. Courts have consistently interpreted this provision as imposing a strict obligation on appellants. Non-compliance without a valid extension typically renders the , leading to dismissal. Let's break this down with statutory language, judicial interpretations, and supporting cases.
(3) explicitly states: Within after the filing of the under this rule, the appellant shall file the in the ...
.
The use of 'shall' is pivotal here. As established in legal principles, the word 'shall' when used in any legislation means 'obligatory'
. This is not mere guidance; it's a binding directive. The rule further specifies that the record must contain copies of the application, pleadings, and other documents, underscoring the procedural rigor
.
Failure to meet this one-month window without extension disrupts the appeal process and is viewed as an .
have repeatedly upheld the mandatory nature of this timeline through landmark decisions.
In one key case, the court dismissed an appeal due to late service of the record by just 8 days, coupled with the absence of a mandatory . The court held: Failure to comply with the mandatory timelines and contents results in an .
. This illustrates that even minor delays are not tolerated lightly.
Similarly, another decision emphasized that the rule is mandatory and must be strictly adhered to, with non-compliance leading to the appeal's incompetence
. The appeal was struck out due to defective service and timeline breaches.
Consistency across cases reinforces this stance. For instance, in a landlord-tenant dispute amid COVID-19 challenges, the dismissed a late-filed appeal against a judgment. The court stressed: Strict compliance with is mandatory; failure to timely file appeals without cogent grounds leads to dismissal.
. Despite claims of financial hardship from pandemic measures, the lack of justification for the delay sealed the appeal's fate (Paras 1, 8, 11, 14, 18).
In another matter involving professional negligence claims, appellants sought an extension under but were rebuffed. The court considered factors like length of delay, reasons, prejudice, and success chances, yet dismissed the application for non-compliance with mandatory requirements of
. Explanations citing and COVID-19 were deemed insufficient, highlighting that compliance with is essential (Paras 12-14, 18-21).
These cases show a pattern: Courts demand strict compliance, excusing delays only with compelling, proven grounds.
While the timeline is mandatory by default, it's not absolute. Courts may exercise discretion to extend time on just terms
. However, this power is exercised judiciously:
In the professional negligence case, despite these parameters, the application failed due to inordinate delay and procedural defects
. Thus, extensions are possible but far from guaranteed—act promptly if needed.
To safeguard your appeal:
.
.
Non-compliance risks your appeal being deemed incompetent and struck out, as seen repeatedly in case law
.
The requirement under (3) is mandatory, backed by clear statutory language using 'shall,' reinforced judicial precedents, and consistent commentary. While courts hold discretion for extensions, the default is strict enforcement to ensure efficient justice delivery.
| Aspect | Mandatory? | Key Risk of Non-Compliance ||--------|------------|----------------------------|| Filing Timeline | Yes
|
|| Record Contents | Yes
| Dismissal for defects || Extensions | Discretionary
| Rarely granted without strong justification
|
In summary, treat the one-month deadline as non-negotiable unless you secure an extension. By prioritizing compliance, you protect your right to appeal. For tailored guidance, consult a legal expert familiar with the 2012.
References:1.
– Statutory text and mandatory nature.2.
– Dismissal for late service.3.
– Discretion for extensions.4.
– Strict compliance in COVID-era appeal.5.
– Rejection of extension for procedural lapses.
Stay procedural-smart in your litigation journey!
#AppealProcess, #CourtRules, #LegalCompliance
(A) Rules of 2012 – Order 55 Rules 2, 4 – Order 62 Rules 1, 6 – Order 63A Rule 17 – Appeal – Competence of appeal hinging on timely ... Datuk Captain Hamzah Mohd Noor & another appeal, [2009] 4 MLJ 149 is binding on me. The ratio decidendi in that case is that O 1A cannot be used to supersede a mandatory requirement of the rules. O 55 r 4 is certainly one such #HL_START....
(A) Rules of Court 2012 – Order 18 Rule 19 and Order 55 – Application for extension of time to file a Notice of Appeal – The application ... Extension of time (O 3, r 5) 5. (1) The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorized by the....
(A) Rules of Court 2012 – Order 55 – Appellant's appeal against two orders regarding defamation suit and assessment of damages dismissed ... [13] As the two orders were obtained without a full trial, O 55 r 3 RC 2012 would be applicable and it provides: (3) Within one month after the filing of the notice of appeal under this rule, the appellant shall ....
(A) Rules of Court 2012 - Order 55 r 4(8) - Appeal against dismissal of claim - Plaintiff's failure to serve a physical copy of the ... ... ... Issues: Key issues included the validity of email service versus physical service requirements under Order 55 r 4(8) of the ... FROM SUBORDINATE COURTS Record of appeal (O 55 r 4) 4.(8) The appellant shall within#H....
(A) Rules of Court 2012 - Order 55 r 4(8) - Appeal struck out for failure to serve physical copy of record of appeal within stipulated ... [16] Order 55 r 4(8) of the Rules of court 2012 provides as follows: "ORDER 55 APPEALS TO HIGH court FROM SUBORDINATE COURTS Record of appeal (O 55#HL....
(A) Rules of Court 2012 – Order 55 – Appeal – Non-compliance with mandatory service of Notice of Appeal (NOA) within prescribed time ... P appeals to the High Court. [3] In the Appeal proceeding, D filed an Application to strike out the Appeal on the ground that the Appeal is "null and void" because P did not comply with the mandatory O 55#HL....
(3) Within one month after the filing of the notice of appeal under this rule, the appellant shall file the record of appeal in the High Court, and the record shall contain copies of: (a) The application for the decision; (b) All pleadings filed; (c) ... Order 55 r 5 of the #HL_ST....
55 r 4(4) – Appeal to be struck out due to procedural defects. ... for delay, degree of prejudice, and chances of success – Application dismissed for non-compliance with mandatory requirements of Order ... JUDGMENT S M Komathy Suppiah J: [1] This was an application by the appellants (the defendants in the court below) seeking an extension of time pursuant to O 3 and/or O 92 of the Rules ....
(A) Rules of Court 2012 – Order 55 – Appeal – Non-compliance with mandatory procedural requirements renders appeal incompetent – ... Time Limit To Apply For NOP And GOJ [18] Order 55 r 3(5) compels D to apply, in writing, for the NOP and the GOJ "within the time limited for the filing of an appeal" ie also #HL_START....
(A) Rules of Court 2012 – Order 55 – Appeals – Extension of time to file Record of Appeal – Application dismissed as the First Defendant ... [8] The First Defendant premised this Application on O 3 r 5 of the Rules of , which reads: Order 3 - Time Rule 5 - Extension of time (1) The Court#....
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