Suriamurthy @ Sourimuthu A/L Dorasamy v Ketua Pengarah Pertubuhan Keselamatan Sosial (WA-16-20-07/2025)

This was an application by the Appellant for an extension of time (‘EoT’) for the filing of the Record of Appeal (‘RoA’) pursuant to O.3, r. 5; O. 55, r. 4 and O. 92, r. 4 of the Rules of Court 2012 (‘RC 2012’).

By way of a Notice of Invalidity dated 30.9.2024, the Appellant had applied to the Respondent for an invalidity pension.

The Respondent rejected the application by way of a letter dated 7.10.2024 because the Appellant did not fulfil the criteria for an invalidity pension as provided in Regulation 46 of the Employees’ Social Security (General) Regulations 1971.

The Appellant then filed an appeal to the Social Security Appellate Board but the appeal was dismissed on 30.4.2025 (‘said Decision’).

Dissatisfied with the said Decision, the Appellant filed a Notice of Appeal in this court on 28.7.2025.

At the case management (‘CM’) on 9.9.2025 by way of e-review, the Deputy Registrar (‘DR’) informed that the RoA should have been filed within one month from the date of filing of the Notice of Appeal (see O. 55, r. 4(1) of the RC 2012). The DR directed the Appellant’s solicitors to file a Notice of Application for an EoT to file the RoA by 26.9.2025.

The Notice of Application (encl. 5) was filed on 22.9.2025 and the hearing took place on 29.1.2026.

At the outset, the Respondent objected to the Appellant’s Supplemental Affidavit (encl. 17), which was filed on 15.1.2026, on the grounds, among others, that it was filed 51 days after all affidavits had been exhausted and after the parties had filed their respective Written and Reply Submissions. Furthermore, encl. was filed without obtaining leave from the court and the document referred to as exhibit “KI-2” in encl. 17 was not exhibited (see the Respondent’s solicitors’ letter to the court dated 22.1.2026 in encl. 20 where notice was given that an objection will be raised on the hearing date and reliance was placed on the case authorities of Ladd v Marshall [1954] 1 WLR 1489 and Sagujuta (Sabah) Sdn Bhd v Trane Malaysia Sales & Services Sdn Bhd [2014] 5 MLJ 535).

The Appellant’s counsel referred to paragraph 11 of the Affidavit In Reply (‘AIR’, encl. 8) where Kamal Ishmael Bin Mohammed Ariff, an advocate and solicitor at the Appellant’s firm of solicitors had affirmed that “Perenggan 7 AIR adalah dinafikan. Pihak Perayu dapat membekalkan dokumen-dokumen bagi menyokong kenyataan saya bahawa keadaan kesihatan Perayu dan Isteri beliau yang menguruskan kes ini adalah kurang baik dimana jika perlu, pihak Perayu akan memfailkan Afidavit Tambahan bagi menyokong kenyataan ini.” (emphasis added).

The Respondent’s counsel retorted by making reference to the CM on 6.10.2025 where the DR had given directions on the filing of affidavits and that “Pihak-pihak diingatkan untuk tidak memfailkan sebarang Afidavit Tambahan tanpa mendapat kebenaran Mahkamah terlebih dahulu.”.

In Sagujuta (supra), the court said: “[32] In Perbadaran Nasional Insurans Sdn Bhd v Pua Lai Ong [1996] 3 MLJ 85, the Court of Appeal held thatO32 r 13(2) makes it mandatory for such an affidavit in reply to be filed and served within 14 days from the time the affidavit it seeks to reply is received. It was also held in that case that the court has no discretion to allow such an affidavit in reply if it is filed outside the 14 days period, unless the party in question apply for an abridgement of time required to file the affidavit in reply pursuant to O 3 r 5(1) of the RHC 1980. [33] In the present case, the appellant had not applied for leave or abridgment of time to file the said affidavit in reply. Furthermore the said further affidavit in reply in question was served after the respondent had served on the appellant’s solicitors their submissions and bundle of authorities in respect of the summary judgment application. The Court of Appeal, in Lum Choon Realty Sdn Bhd v PerwiraHabib BankMalaysia Bhd [2003] 4 MLJ 409; [2003] 3 CLJ 791 had stressed the following point: We were wondering how the respondent was allowed to file and use that affidavit. It is to be noted that the proceedings of this application are by way of affidavit evidence. As such in our view when the parties begin their submission the evidence by way of affidavits is deemed to be closed and the parties are only allowed to submit on the evidence was found in the various affidavits.”.

After reviewing the Notes of Proceedings and having considered the submissions of the parties, in particular the excerpt from Sagujuta’s case as quoted above, I allowed the Respondent’s objection and encl. 17 was not taken into consideration for purposes of deciding encl. 5.

The Appellant referred to the case of Rohman Norhakim bin Abd Aziz v Ismail bin Mohd Yusak & Anor [2020] MLJU 1312 for the applicable legal principles where it was held that: “[16] In Allied Granite Marble Industries Sdn Bhd v Chin Foong Holdings Sdn Bhd & Ors [2000] 5 CLJ 71, the Court of Appeal enunciated the four factors to be taken into account in deciding whether to grant an extension of time to file a notice of appeal. These were (i) the length of the delay; (ii) the reason for the delay; (iii) the chances of the appeal succeeding if time for appealing is extended; and (iv) the degree of prejudice to the would-be respondent if the application is granted. [17] It is apposite at this juncture to point out that the above mentioned four factors are applicable to both an application for extension of time to serve the notice of appeal and the record of appeal out of time. In my view all 4 factors are of equal importance and it is entirely in the discretion of the court to grant or refuse an extension of time. Each case must be looked at on its own particular facts and the discretion must be exercised in relation to those particular facts, bearing in mind that at all times the burden will be on the applicant to persuade the Court to grant his request.”.

The Appellant’s grounds of application for EoT to file the RoA and the analysis and findings by the court in respect of each ground of application are set out below.

The length of, and reasons for, the delay

The Appellant accepted the fact that the RoA should have been filed by 27.8.2025. The period between the expiry of the deadline for the filing of the RoA and the filing of encl. 5 (22.9.2025) was 26 days. The Appellant asserted that there was no inordinate delay in the filing of encl. 5.

To my mind, what was significant was the reasons for the delay. In this regard, the Appellant proffered the following reasons for the delay in filing the RoA:

The Appellant’s solicitors were waiting for documents from the Appellant who was unwell. The matter had to be managed by the Appellant’s family and this took time. However, no particulars and proof of the Appellant’s health condition was shown in the Affidavit In Support (‘AIS’). The averments on this matter were first mentioned in encl. 17, which the court has decided cannot be relied upon by the Appellant in the instant application.

The Respondent’s solicitors responded late to the draft index to the RoA. Based on the affidavit evidence, the Appellant’s solicitors had sent the draft index to the RoA to the Respondent’s solicitors by e-mail on 3.9.2025 i.e. one week after the expiry of the deadline for the filing of the RoA. The Respondent’s solicitors replied to the said e-mail on 4.9.2025, attaching the approved draft index to the RoA together with additional documents. The Appellant’s solicitors issued a written acknowledgment of receipt on 4.9.2025. In paragraph 12 of the Appellant’s AIR, the deponent affirmed that the Appellant’s solicitors had received the Respondent’s solicitor’s e-mail and documents on 4.9.2025. In view of the foregoing, the Appellant’s allegation that his solicitors only received the approved draft index on 8.9.2025 was not true and was contradicted by his solicitors’ own written acknowledgment of receipt dated 4.9.2025 and the admission in the AIR. Clearly, the Appellant was already out of time to file the RoA when the Appellant’s solicitors issued the draft index to the RoA one week after the expiry of the deadline for the filing of the RoA (see Y.K.S Enterprise Sdn Bhd v Aspirasi Ternama Sdn Bhd [2019] MLJU 1170). Hence, this reason for the delay was completely baseless.

The Appellant’s solicitors were only appointed around one month after the Notice of Appeal was filed. The Notice of Appointment of Solicitors for the Appellant was dated 19.8.2025 and it was filed on 22.8.2025. The Appellant’s solicitors had called and sent messages via WhatsApp to the Respondent’s solicitors on 11.8.2025. The RoA should have been filed by 27.8.2025. Despite having time to do so, the Appellant and/ or his solicitors failed to take the necessary action. The Appellant further failed to apply for an EoT to file the RoA until he was directed to do so by the DR at the CM on 9.9.2025. The Notice of Application was only filed on 22.9.2025. The Respondent aptly cited the cases of Safety Insurance Co Ltd V Wong Choo Yong [1971] 1 MLJ 167, Pertiwi Prestij Sdn Bhd v Damai Bistari Sdn Bhd [2019] MLJU 435, Gurdev Kaur a/p Bhag Singh v BSN Commercial Bank (M) Berhad [2002] MLJU 643 and C.E.L Construction Sdn Bhd Iwn Toh Wai Ming [2023] CLJU 25554 to support the submission that the Appellant’s reason for the delay was, again, unfounded. There was time for the Appellant’s Solicitors to file the RoA. It was their duty to exercise reasonable diligence to ensure that the RoA was filed within the time as stipulated in the RC 2012. If the Appellant’s Solicitors were unable to do so, it was incumbent on them to expeditiously file the Notice of Application to seek an EoT to file the RoA. Of course, this court has a discretion on the matter but this must be exercised judicially after considering all the circumstances of the case. In the instant case, the court was loath to exercise the discretion in the Appellant’s favour on all the grounds as explicated in this judgment.

The delay in filing the RoA was unintentional and did not reflect any disrespect of the RC 2012 This reason put forth by the Appellant cannot by any stretch of the imagination constitute a valid explanation for the delay in the present case. This alleged justification for the delay was irrelevant and does not warrant the granting of an EoT (see Lee Jyh Kiong v. Industrial Court Malaysia & Anor [2021] MLJU 612 and Jiangsu Provincial Construction (M) Sdn Bhd v. D Box System (M) Sdn Bhd and another summon [2025] MLJU 101). As alluded to earlier, the Appellant was not proactive at all and no steps were taken to remedy the non-filing of the RoA within the stipulated timeline. It was only upon the direction of the DR at the CM that the Notice of Application was filed on 22.9.2025.

Overall, I found that the Appellant’s reasons for the delay were neither strong nor satisfactory.

(ii) The merits of the appeal

In paragraph 14 of the AIS, the Appellant’s solicitors averred that: “Pihak Perayu juga percaya pihak Perayu mempunyai rayuan yang bermerit yang harus didengar dan diputuskan oleh Mahkamah yang Mulia ini. Saya juga percaya bahwa kelewatan ini tidak akan memperjudiskan pihak Responden dan pihak Responden juga tidak mempunyai apa-apa bantahan terhadap permohonan ini.”, while in paragraph 14 of the AIR, the same deponent affirmed that: “Saya seterusnya menegaskan bahawa pihak Perayu mempunyai rayuan yang bermerit dan perlu diberi peluang untuk didengar atas merit kes dan bukannya ditolak hanya berasaskan isu teknikal yang dapat diperbetulkan ataupun diperbaiki.”.

In paragraph 1.15 of the Written Submission, the Appellant contended that there is merit in his appeal “… memandangkan Perayu berhak untuk mendapatkan tuntutan PERKESO di bawah undang-undang yang telah ditetapkan dimana isu ini akan dibangkitkan pada hari berbicaraan kelak.”. The Appellant cited the following excerpt from Rohman Norhakim (supra) to support his argument: “[23] The third factor, as noted earlier, has to do with the chances of the appeal succeeding if time for appealing is extended. It cannot be gainsaid that if would be a waste of time for all concerned if time is extended when the appeal is hopeless, unarguable or bound to fail. It is trite that there is no requirement in an application for extension of time for the applicant to show he will definitely succeed in the appeal, but he must at least demonstrate that his appeal has some chance of success.”.

In the Reply Submission, the Appellant submitted that: “1.15 There is no need to discuss the merits of the appeal in great detail. Notwithstanding the above, the Appellant wishes to highlight the fact in the medical report for application for invalidity pension under the suggested treatment the doctor suggested for invalidity pension for report dated 18.1.2020.

1.16 It is stated in the Ground’s of Judgement dated 18.8.2025 the Appellant's claim in year 2021 and 2022 comes within the definition of Section 46 of the PERKESO Rules and the Appeal Board of PERKESO erred when they stated:- “(iv) Walaupun Pemohon telah berhenti kerja pada usia 55 tahun dan keuzuran terjadi sebelum 60 tahun, untuk masalah kesihatan pada bahagian kepala, Pemohon hanya menerima rawatan dan secara serious pada usia melebihi 60 tahun”.

Firstly, there was no affirmation in the AIS as per the submission in paragraphs 1.15 and 1.16 of the Reply Submission. Instead, the AIS contained only bare averments. The same can be said of the AIR.

Secondly, s 91 of the Employees Social Security Act 1969 [Act 4] provides that: “Appeal

91.

Save as expressly provided in this section, no appeal shall lie from an order of the appellate boards set up by or under this Act.

An appeal shall lie to the High Court from an order of an appellate board set up by or under this Act if it involves a substantial question of law.

The period of limitation for an appeal under this section shall be sixty days from the date the order is made.”.

The Respondent cited the case authorities of Yeo Yoo Teik v. Jemaah Pengadilan Sewa, Pulau Pinang & Anor [1996] 2 MLJ 54, Narayanasamy a/l Ponusamy v. Ketua Pengarah Pertubuhan Keselamatan Perkeso Sungai Petani, Negeri Kedah Darul Aman [2023] MLJU 17 and Nazlan bin Hashim & Anor v. Mohamad Akmal bin Mohd Rashid (a patient and is suing through his father and guardian Mohd Rashid bin Hamzah) [2015] MLJU 1805 to support the submission that the Appellant has failed to –

allude to some facts or law in his affidavit to show at least an arguable case;

identify the substantive question of law to be referred to this court pursuant to the mandatory requirements of s 91 of Act 4; and

provide sufficient material for this court to consider whether the appeal has merits.

At the hearing, the Appellant’s counsel was unable to provide a satisfactory rebuttal to the Respondent’s submission. Moreover, in the case which was cited by the Appellant himself, namely Rohman Norhakim (supra), the learned High Court Judge said: “[24] I pause here to observe that there is not a word in the plaintiff’s affidavit in support about the merits in the appeal. If the plaintiff does not show that the appeal has some chance of success, it would be pointless in extending time and he would suffer no injustice if the rules are applied. The party seeking indulgence bears the burden of persuading the Court to grant its request. As nothing is said in the plaintiff’s affidavit about the merits in the appeal, it is not open to the court to assume the appeal has some chance of success. For otherwise the party in breach of the rules would have an unfettered right to extension of time which would defeat the very purpose and object of the ROC. ... [27] Given my decisions in relation to the first three factors mentioned above, it would follow that the application must be dismissed. The circumstances of this case clearly do not justify the court exercising its discretion to extend the time to and serve the notice of appeal and record of appeal. I therefore dismiss the plaintiff’s application.” (see too, Chai Kin Hin, si mati (oleh Chai Ah Kiw & Ors, waris-warisnya dan pentadbir-pentadbirnya) v. Goh Miaw Heng & Anor [2021] MLJU 2882 and CMR Global (M) Sdn Bhd v Trans-Coastal Lines Sdn Bhd [2023] LNS 951).

Therefore, I was inclined to agree with the Respondent that the Appellant’s bare averments in the AIS and AIR were insufficient and the essential requirement to show a chance of the appeal succeeding was not fulfilled.

(iii) Prejudice to the Respondent

The Appellant submitted that the delay in filing the RoA caused no prejudice to the Respondent and even if it did, the Appellant was prepared to compensate the Respondent to regularise the appeal.

The burden was on the Appellant to show that the EoT would not cause any real risk of prejudice to the Respondent, for which an award of costs cannot compensate (see Tetuan Tanjung Teras Sdn Bhd & Ors v. Tetuan Syn Tai Hung Trading Sdn Bhd [2003] 4 MLJ 465). In this regard, the Appellant only made bare averments without alluding to any facts or producing any evidence.

In Raja Guppal a/l Ramasamy v Sagaran all Pakiam [1999] 2 MLJ 67752, the Court of Appeal said: “Quite apart from the statement that if the application is allowed. it would not prejudice the respondent, the appellant's solicitor did not allude to some facts or law in the affidavit in support so as to show at least an arguable case (see Yeo Yoo Teik v Jemaah Pengadilan Sewa, Pulau Pinang & Anor at p 56, and Pearson v Chen Chien Wen Edwin [1991] 3 MLJ 208). ... By way of postscript, we quote, ‘it is time the litigants and their legal advisers realize and appreciate that rules are made to be observed and complied with and not flouted or wantonly ignored ad libitum’, per Abdoolcader J, in dealing with the failure of the appellant to comply with the statutory provision requiring service of the copy of the record of appeal on the respondents or their solicitors in the Federal Court case of Ng Yit Seng & Anor v Syarikat Jiwa Mentakab Sdn Bhd & Ors [1981] 2 MLJ 194 at p 195.”

I was persuaded by the Respondent’s submission that the proposed EoT would inevitably prejudice the Respondent, which prejudice cannot be compensated with costs. The granting of the Appellant’s application would result in unnecessary expenditure in the form of additional time and costs to the detriment of the Respondent. Such prejudice cannot be lightly disregarded, particularly where the Appellant has not offered sufficient and satisfactory explanation for the delay.

In any event, even if the issue of prejudice did not arise in the present case, the Appellant had clearly failed to satisfy the criteria for the grant of an EoT given that no valid reasons were proffered for the delay, the Appellant had not shown that there was any chance of the appeal succeeding and had not identified the substantive question of law to be decided by the court as mandated by s 91 of Act 4.

Premised on the abovesaid considerations, the Appellant’s application in encl. 5 was dismissed with costs of RM2,000.00, subject to allocatur.

As the Appellant was not allowed any EoT to file the RoA, there were no proper records of appeal before the court. This necessarily means that the appeal must be struck out.

In Hock Seng Construction Sdn Bhd & Anor v Yeoh Poh Owi & Anor [2001] 3 MLJ 491, the court held, among others, that: “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 extension 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 extension of time was devoid of any merit. Therefore, the notice of motion is dismissed with costs. 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 Court of Appeal 1980 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.”.

However, when pronouncing the decision for encl. 5, I had inadvertently omitted to pronounce that the Appellant’s appeal in encl. 1 was struck out. DATED: 19.2.2026 (ALIZA SULAIMAN) JUDGE HIGH COURT IN MALAYA KUALA LUMPUR (BKK1) Solicitors for the Appellant: Syahirah Binti Suhaimy Messrs. Radzi Sheikh Ahmad & Sachpal Solicitors for the Respondent: Sharmini Durai (Rishima Sudhakaran with her) Messrs. Zain & Co.