Kavita A/P Nadarajan (Berniaga Atas Nama dan Gaya Veetra Enterprise ) v Pragash A/L Savarimuthu (JA-12ANCvC-34-12/2025)

1 IN THE HIGH COURT OF MALAYA AT JOHOR BAHRU IN THE STATE OF JOHOR DARUL TA’ZIM MALAYSIA CIVIL APPEAL NO. : JA-12ANCvC-34-12/2025 BETWEEN

1. KAVITHA A/P NADARAJAN [NRIC NO. : 820724-08-5358]

2. SERITHARAN A/L RAMAN [NRIC NO. : 790911-08-6853] …APPELLANTS AND PRAGASH A/L SAVARIMUTHU [NO. K/P : 790228-08-5322] …RESPONDENT 05/07/2026 15:58:59 JA-12ANCvC-34-12/2025 Kand. 21 **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 IN THE SESSIONS COURT OF JOHOR BAHRU IN THE STATE OF JOHOR DARUL TA’ZIM MALAYSIA CIVIL ACTION NO. : JA-A52NCvC-151-06/2023 BETWEEN PRAGASH A/L SAVARIMUTHU [NO. K/P : 790228-08-5322] …PLAINTIF AND

1. KAVITHA A/P NADARAJAN [NRIC NO. : 820724-08-5358]

2. SERITHARAN A/L RAMAN [NRIC NO. : 790911-08-6853] …DEFENDANTS GROUNDS OF DECISION Enclosure 4 (the Appellants’ application for an extension of time to file the Record of Appeal) **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 INTRODUCTION

1. Enclosure 4 is the Appellants’ application for an extension of time to file the Record of Appeal in this appeal. It is brought under Order 3 rule 5 Rules of Court 2012 (ROC 2012) and Order 41 rule 4 ROC

2012. The Respondent opposes it.

2. The Appellants are the Defendants, and the Respondent the Plaintiff, in Johor Bahru Sessions Court Civil Suit No. : JA-A52NCvC-151- 06/2023. For consistency, parties in this appeal will be referred to as they were in the Sessions Court. BACKGROUND

3. On 2 December 2025, the Sessions Court dismissed a number of the Defendants’ applications. These included their applications to set aside three judgments entered against them dated 9 June 2024, 22 August 2024 and 9 December 2024 (Enclosures 55, 62 and 63) and their applications for a stay (Enclosures 53, 57 and 59).

4. The Notice of Appeal in this appeal is directed only at the dismissal of Enclosure 53. The Defendants did not appeal against the dismissal of their applications to set aside the three judgments. Those judgments therefore stand. **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 5. The Notice of Appeal is dated 15 December 2025. The decision appealed against having been pronounced on 2 December 2025, the time within which to file and serve the Notice of Appeal under Order 55 rule 5(2) of the ROC expired on 16 December 2025. The Defendants’ evidence is that an attempt to file the Notice of Appeal was made on 16 December 2025, but that the e-filing system (“e-Kehakiman”) was then unavailable. The Notice of Appeal was filed the following morning, on 17 December 2025 at 7.45 a.m. It bears the Sessions Court registry’s endorsement “Notis Rayuan difailkan di luar masa” - a Notice of Appeal filed out of time.

6. It is not in dispute and in any event the Defendants filed no affidavit denying that the Notice of Appeal was –

7. On 26 January 2026 the matter came up for case management by way of e-review. This Court asked why the Record of Appeal had not been filed. The Defendants’ then solicitor explained that the Notice of Appeal had been filed late because of the system disruption and asked for time to file the Record of Appeal. The Court asked whether the Plaintiff objected to the late filing of the Notice of Appeal. On 27 January 2026, the Plaintiff confirmed its. This Court then directed the Defendants to file the appropriate application to obtain leave for an extension of time to file the Notice of Appeal and fixed a further case **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 management on 10 February 2026 for the status of that filing. At a subsequent case management on 26 February 2026, this Court fixed 10 March 2026 as the final date by which the Defendants were to regularise their action in this appeal.

8. The Defendants did not file any application to extend the time to file or serve the Notice of Appeal. Instead, on 11 March 2026, a day after the final date this Court had fixed, they filed Enclosure 4, seeking an extension of time to file the Record of Appeal.

9. The Defendants are now represented by Messrs The Law Chambers of Cassian Anthony, who I was informed act pro bono. Their former solicitors were Messrs Francis Augustine Law Chambers. THE PARTIES’ CASES

10. The Defendants’ case, in essence, is that the late filing of the Notice of Appeal was caused by the e-Kehakiman disruption and not by any fault of their own. They were thereafter left uncertain as to the status of the appeal. This Court should exercise its inherent jurisdiction under Order 92 rule 4 of the ROC to allow the Record of Appeal to be filed out of time so that the appeal may be heard on its merits.

11. The Plaintiff’s case is that the application is incompetent and misconceived. It contends that the supporting affidavit is defective; that the Notice of Appeal is defective, was filed out of time and was never served, so that no valid appeal exists; that the Defendants have **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 never applied to regularise the Notice of Appeal; that no cogent explanation for the delay has been given; that the appeal in any event enjoys slim prospects; and that the Defendants’ failure to file an affidavit in reply means the Plaintiff’s averments stand admitted. THE PRELIMINARY OBJECTION

12. The Plaintiffs took a preliminary objection that the supporting affidavit (Enclosure 5) is defective because the deponents did not sign immediately after its last paragraph, contrary to Order 41 rule 1(7) of the ROC. It relied on Mohamad bin Hassan & Ors v Dewan Bandaraya Kuala Lumpur & Anor [2001] 4 MLJ 423.

13. The Defendants answered that the placement of a jurat on a separate page does not, without more, render an affidavit defective, relying on Koh Siew & Ors v. Government of Malaysia & Ors [2021] CLJU 2383, which followed Mohd Nazir Badar Shair v. Timbalan Menteri Dalam Negeri & Ors [2000] 2 CLJ 805.

14. I did not consider it necessary to dispose of Enclosure 4 on this preliminary objection. The position taken in Koh Siew is that the mere fact that a jurat commences on one page and ends on, or appears on, another will not render an affidavit defective unless there is evidence to the contrary. There being no such evidence here, I declined to reject the affidavit on that ground alone. I add only that the affidavit is not free from difficulty in other respects. It runs from paragraph 5 directly to paragraph 14 and it refers to a case number : WA- **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 A52NCvC-725-09/2022, which does not relate to this matter - but I have not needed to rest my decision on the form of the affidavit. I therefore turn to the substance. THE ISSUES

15. Two issues are determinative –

16. An appeal from a decision of the Sessions Court, other than a decision made after trial, lies to a Judge of the High Court. By Order 55 rule 5(2) of the ROC, such an appeal is brought by filing a notice of appeal in Form 111A in the registry of the relevant subordinate court, with a copy extended to the registry of the High Court, within fourteen days from the date on which the decision was pronounced, and by serving a copy of the notice on every other party to the **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 proceedings. The word “shall” in the rule makes those requirements mandatory.

17. It is settled law that an appeal is not “brought” until the notice of appeal has been both filed and served within time, and that a failure to serve is fatal and incapable of cure. In Tong Lee Hwa & Anor v Malayan Banking Bhd [1978] 1 MLJ 257, the Federal Court held that an appeal can only be said to be brought when the notice of appeal is served on the respondent and that where the notice was not served within time the appeal was not properly brought.

18. The Court of Appeal has applied that principle consistently. In Ling Siok Seng v Ting Sieh Chung [1998] 4 MLJ 65, the court struck out an appeal where the notice of appeal had never been served, holding the appeal to be incompetent and that there was, in fact, no appeal in existence. In Majlis Perbadanan Kangar v Sonati Development Corp Sdn Bhd [2007] 1 MLJ 133, the court reaffirmed that an appeal is not brought until the notice of appeal is both filed and served, so that an appeal lodged without service is utterly incompetent. And in Dato’ Valumalai @ M. Ramalingam S/O V. Muthusamy v Dato’ Dr. Tan Chin Woh [2010] MLJU 410, the court held that the one act without the other renders the appeal incompetent, that the failure to serve the notice of appeal within time is not an irregularity that can be cured and that such an appeal must be dismissed.

19. On the evidence, the Notice of Appeal here was filed one day out of time, was not signed, and was never served on the Plaintiff. The registry itself endorsed it as filed out of time. The Defendants filed no **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 affidavit to contradict any of this. On the authorities, the consequence is that no valid appeal has been brought before this Court.

20. That is fatal to Enclosure 4. The application is for an extension of time to file the Record of Appeal - a step that presupposes a competent appeal. There being no competent appeal, there is nothing to which the time for filing a Record of Appeal can attach. The application is, with respect, misconceived.

21. The position is compounded by the Defendants’ failure to regularise the Notice of Appeal itself. Although this Court directed them on 27 January 2026 to file an application for an extension of time to file the Notice of Appeal and fixed 10 March 2026 as the final date by which to regularise their action, no such application has ever been filed. The Appellants instead filed Enclosure 4, which seeks an extension of time for the wrong document. The defect in the Notice of Appeal therefore remains unremedied.

22. The facts of Pertiwi Prestij Sdn Bhd v Damai Bistari Sdn Bhd [2019] MLJU 435 are close to the present. There, the Court of Appeal dismissed an application for leave and an extension of time to file a notice of appeal out of time, where the delay was sought to be excused by the default of the appellant’s former solicitor. The court held the application to be without merit. That reasoning applies here with equal force.

23. For these reasons, I held that there is no competent appeal in existence and that Enclosure 4 must be dismissed on that ground alone. **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 SECOND ISSUE: DISCRETION TO EXTEND TIME

24. For completeness, I go on to consider whether, assuming a competent appeal, I would in any event have exercised my discretion to extend time.

25. The grant of an extension of time is discretionary and the burden lies on the applicant to place before the Court material upon which the discretion may be exercised. In the Privy Council’s well-known decision in Ratnam v Cumarasamy & Anor [1965] 1 MLJ 228, it was held that the Rules of Court must prima facie be obeyed and that to justify an extension there must be some material on which the court can exercise its discretion; otherwise a party in breach would have an unqualified right to an extension, defeating the very purpose of the rules.

26. The factors to be weighed are settled. In MBF Finance Bhd v Alluwi bin Salleh & Anor [2002] 1 MLJ 497, the Court of Appeal identified them as –

27. Applying those factors –

28. Weighing these matters, the balance of justice lies with the Plaintiff. I would not have exercised my discretion to extend time even had I found a competent appeal to exist. **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 THE FAILURE TO FILE AN AFFIDAVIT IN REPLY

29. I add a word on the Defendants’ failure to file any affidavit in reply to the Plaintiff’s Affidavit in Reply. The Plaintiff asserted on oath that the Notice of Appeal was filed out of time, was unsigned and was not served. The Defendants did not answer those assertions on affidavit. They responded only by submission. It is well established that where one party makes a positive assertion on a material matter and the other does not contradict it on affidavit, the assertion may be treated as admitted. [See : Ng Hee Thong & Anor v Public Bank Bhd [1995] 1 MLJ 281]. Submissions are not evidence. The Plaintiff’s assertions therefore stand unanswered and I have proceeded on that footing. INHERENT JURISDICTION

30. Finally, the Defendants’ reliance on the inherent jurisdiction of the Court under Order 92 rule 4 ROC 2012 does not assist them. That jurisdiction is preserved to prevent injustice and an abuse of process. It is not a means of overriding mandatory procedural requirements, nor of curing a defect that the authorities hold to be incurable. Where, as here, the appeal has never been competently brought, Order 92 rule 4 ROC 2012 cannot be invoked to supply what the Rules require and the Defendants have not done. **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 CONCLUSION

31. For the reasons above, there is no competent appeal in existence to which the time for filing the Record of Appeal can be extended; and in any event the discretionary considerations do not favour an extension.

32. Enclosure 4 is accordingly dismissed. I ordered the Defendants to pay the Plaintiff costs of RM10,000.00, subject to allocatur. Dated : 11 June 2026 -signed- (DR. NORADURA BINTI HAMZAH) Judicial Commissioner High Court Civil 2 Johor Bahru Counsel for the Appellants : : Cassian Anthony Camillus Messrs. The Law Chambers of Cassian Anthony Counsel for the Respondent : : Maithily a/p Manoher Messrs. C Sankaran & Co. **Note : Serial number will be used to verify the originality of this document via eFILING portal