MKBA v SFMS [2023] SLRAU 22

Syariah Court of Appeal (Shah Alam)

Application for permission to extend the time to file the Notice of Appeal

1. The Applicant had previously filed an application in the Syariah High Court (“SHC”) for the cancellation of child maintenance in the sum of RM6,000.00 per month under Application No.: XXXX-XXX-XXXX-2022.

2. On 8 December 2022, the learned Judge of the Syariah High Court dismissed the Applicant’s application.

3. Dissatisfied with the decision, the Applicant filed a Notice of Appeal under Application No.: XXXX-XXX-XXXX-0014 on 21 December 2022, appealing against the entirety of the said decision.

4. It is not in dispute that on the same day, i.e, 21 December 2022, the staff of the Applicant’s Syariah Lawyer went to the registered address of the Respondent’s Syariah Lawyer to serve a copy of the Notice of Appeal.

5. However, due to certain obstacles and constraints faced by the staff, there was a delay of 56 minutes in serving the Notice of Appeal to the Respondent’s Syariah Lawyer.

6. The Applicant subsequently filed this Application on 10 February 2023, approximately 51 days after being directed by the Court to do so.

1. Whether the Applicant has satisfied the factors or special circumstances required to obtain an extension of time

(a) The Court referred to section 238 of the Syariah Court Civil Procedure (State of Selangor) Enactment 2003, which provides-

‘238. Enlargement or abridgement of time.

(1)  The Court may, upon such terms as it thinks just, by an order, extend or abridge the period within which a person is required or authorized by this Enactment or by any judgment, order or direction to do any act in any proceedings.

(2)   The Court may extend any such period as is referred to in subsection (1) although the application for extension is not made until after the expiration of such period.’

(b) The Court held that the above provision gives the Court discretionary power to extend or abridge the period within which a person is required to do any act in any proceeding.  Nonetheless, the discretionary power given must be used only in special circumstances as decided in the case of AA v. AA [2012] SLRAU 25; [2013] JH 36(1) and HD v. WHWD [2015] SLRAU 20; [2015] JH 40(1).

(c) Referring to the affidavit and submissions of the Applicant, the Notice of Appeal was served to the Respondent 56 minutes after the prescribed deadline, with service completed at approximately 4:56 p.m. on the final day permitted for submission.

(d) Subsequently, the Applicant filed this application for an extension of time 51 days after being directed to do so by the Court, as referenced in paragraph 23 of the Applicant’s submissions.

(e) The Applicant asserted that genuine efforts were made to serve the Notice of Appeal within the prescribed time frame. However, certain difficulties were encountered in locating the Respondent’s Syariah Lawyer’s firm, which contributed to the delay.

(f) The Applicant further contended that the delay was minimal and does not prejudice the substance or progress of the appeal.

(g) Referring to the Respondent’s Affidavit in Reply dated 25 August 2023, the Court noted that several statements made by the Respondent appear to suggest that the application ought not to be allowed.

(h) However, in the final paragraph of the affidavit, the unrepresented Respondent stated that, in the interest of saving time, costs, and avoiding the burden of defending the application, the Respondent has no objection to this application. This position was further confirmed through a letter addressed to the Chief Registrar of the Syariah Court of Appeal dated 13 June 2023.

(i) As the extension of time lies within the Court’s discretionary power and considering that the Applicant has not provided any explanation for the two-month delay, the Court believes that costs should be awarded to the Respondent for the proceedings. Nevertheless, given that the Respondent has not object to the application, the Court is satisfied that there is no impediment to granting the extension, and accordingly, the application is allowed with costs.

1. The Applicant’s application is allowed.

2. The Applicant is granted leave to serve the Notice of Appeal No.: xxx-xxxxx-xxx-0014 on the Respondent within fourteen (14) days from today.

3. The Applicant is ordered to pay costs of RM1,000.00 to the Respondent.

1. The Court viewed unfavorably the 51-day delay in seeking the time extension after being directed to do so, suggesting that parties should act expeditiously to rectify procedural defects.

2. Even minor delays (56 minutes) in serving legal documents can necessitate formal applications for time extension, highlighting the importance of strict adherence to procedural timelines.

3. Despite granting the application, the Court ordered costs of RM1,000 against the Applicant, demonstrating that procedural failings carry financial consequences even when relief is ultimately granted.