044-NLR-NLR-V-56-K.-KADIRGAMADAS-et-al-Appellant-and-K.-SUPPIAH-et-al-Respondents.pdf
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Kadirgamadas v. Suppiah
1953/’me 11/ : Gunasekara J. and Pulle J.
K.K ADIRGAM A17AS el al., Appellants, and K. SUPPI AH eta!..
Respondents
.S'. C. {Inly.) 2—D. C. Jaffna, 3,408
Civil Procedure Code—Proctor—Appointment—Requirement oj writing signed by theclient—Section 27—Death of plaintiff—Assignee's claim to be substituted asplaintiff—“ Legal representative ”—Section 394 (2).
When the petition of appeal was filed on behalf of the defendants, the Proctorwho presented it had not been appointed in writing, as required by section 27of the Civil Procedure Code, to act for some of tho appellants. He was soappointed after tho appealable time had expired. Ho had, however, withoutobjection from any of the parties, represented all the defendants at vnriousstages of the proceedings earlier.
Held, that tho irregularity in the appointment of the Proctor was cured bythe subsequent filing of a written proxy..
Held further, that where the plaintiff in a pending action dies it is only hislegal representative who can be substituted as a party in his place. A person,therefore, who claims the plaintiff’s interests in the action by virtue of anassignment which had been made by the plaintiff is not entitled to be substituted,as he is not a legal representative within the meaning of section 394 (2) of theCivil Procedure Code.
QTTNASEKARA J.—Kadirgamadas v. Suppiah
173
^^PPEAL from a judgment of the District Court, Jaffna.
8. J. V. Chelvanayakam, Q.C., with H. W. Tambiah and Felix Dias,for the substituted defendants.
('. Renganathan, for the 1st substituted plaintiff respondent.
Our. adv. vuU.
September 22, LU53. Gunasekaka J.—
This appeal arises out of an action instituted in the District Court ofJaffna by Sithamparapillai Arumugam against two defendants,Kumaravetpillai and his son Kadirgamadas. The plaintiff Arumugamand the first defendant Kumaravetpillai have both died, and the presentdefendants, including the second defendant Kadirgamadas, have beensubstituted in the place of the first defendant, being his legal representa-tives. The appeal is against an order made by the learned District Judgeon the 4th April, 1952, by which he purported to set aside an order thathad been made by his predecessor on the 4th June, 1951, substitutingthe second to sixth respondents in place of the deceased plaintiffArumugam, and to substitute instead the first respondent Suppiah.The appeal has been filed in the name of all the present defendants by.Mr. Nalliah, who has signed the petition as proctor for the appellants.
A preliminary objection to the hearing of the appeal was taken by thelearned counsel for the first respondent on the ground that Mr. Nalliahhad authority to sign the petition of appeal only on behalf of the seconddefendant Kadirgamadas and not on behalf of the other defendants.When the petition of appeal was filed, on the 25th April, 1952, Mr. Nalliahhad not been appointed in writing, as required by section 27 of the CivilProcedure Code, to act for these defendants. He was so appointedlater, on the 8th May, 1952, after the appealable time had expired. Inthe meantime, however, he had, without objection from any of the parties,appeared for these defendants and acted as their proctor in the proceed-ings that were held upon the first respondent Suppiah’s application to besubstituted in place of the deceased plaintiff. On the 16th November,1951, he applied for time to file on behalf of these defendants a statementof objections to Suppiah’s application, and was granted time to do so.On the 17th December, 1951, he filed a statement of objections on theirbehalf. On the 23rd January, 1952, and the 21st March, 1952, heappeared for them at the inquiry into the application, and he alsorepresented them when the order that is appealed from .was deliveredon the 4th April, 1952. We are satisfied that .Mr. Nalliah had beenauthorised by the substituted defendants to file an appeal on their behalf,although they had omitted to appoint him in writing as required by section27 of the Code. That requirement, however, is merely directory, aswas held in Tillekeratne v. Wijesingha 1, and in our opinion the irregularityin the appointment was cured by the subsequent filing of a written proxy.
1 (1908) 11 N. L. It. 270.
2*
174
GUNASEKAHA J.—Kadirgamadaa e. Suppiah
“ No doubt ”, said Hutchinson C.J. in the case cited, “ the enactmentmeans, though it does not in terms say so, that the appointment is to besigned and filed before the proctor does anything in the action. But ifthe omission to sign is not because the proctor has not in factany authority, and if the client afterwards ratifies what has been donein his name by signing the authority, in my opinion that satisfies therequirements of the enactment”. Reginahamy v. Jayasundara 1 andSilva v. Cumaratunga3, which were relied upon by Mr. Renganathan,are distinguishable : in each of those cases the proctor who had signedthe petition of appeal was a proctor who could not be authorised tosign it, for the reason that a proxy granted to another proctor was alreadyin'the record. In Silva v. Cumaratunga2 the ratio decidendi is statedto be that “ this Court cannot recognize two proctors appearing for thesame party in the same case ”. In the present case there was no barto the appointment of Mr. Nalliah to act for the defendants. For thesereasons we over-ruled the preliminary objection and heard the appeal.
The original plaintiff Arumugam had sued Kumaravetpillai on apromissory note in case No. 1339 of the District Court of Jaffna andhad obtained a decree against him on the 28th November, 1931, for therecovery of Rs. 2,638 with legal interest and costs. In execution of tinsdecree the property that is the subject of the present action was seizedon the 17th September, 1946. The second defendant Kadirgamadasclaimed the property, and his claim was upheld on the 2nd April, 1947.Arumugam then instituted the present action, under section 247 of theCivil Procedure Code, to have the property declared liable to be sold inexecution of the decree that had been entered in case No. 1339. Theaction was dismissed on the 27th September, 1948, and Arumugamappealed. While the appeal was pending before this court Kumaravet-pillai died, and the record of the proceedings was remitted to the DistrictCourt for the substitution of his legal representatives in his place. Therecord was received in the District Court on the 12th December, 1949.and the plaintiff was given time till the 13th February, 1950, to make thenecessary application, but before that day the plaintiff himself died.On the 12th October, 1950, the second defendant applied for thesubstitution of himself and the other children of the first defendant inplace of the latter, as his legal representatives, and also for the substitu-tion of the deceased plaintiff’s children in the plaintiff’s place as his legalrepresentatives. These applications were allowed on the 4th June, 1951,and the second defendant and the other appellants were substituted inthe place of the first defendant, and the 2nd to 6th respondents in theplace of the original plaintiff. On the 12th October, 1951, the firstrespondent Suppiah submitted to the District Court a petition prayingfor an order substituting him “ in place of the above-named plaintiff(Arumugam) who is dead ”.
It appears that on the 15th September, 1946 (before the institutionof the present action and before the seizure of the property), ArumugamRad assigned to one Selvadurai his interests in the decree in case No. 1339
1 (1917) 4 C. ir. R. 390.
* (1938) 40 N. L. R. 139.
GUNASEKARA J.—Kadirgamadaa v. Suppiah
175
'• and the full benefit profit sum and sums of .money and advantage-whatsoever that now can or shall or may hereafter be obtained by reasonor means of the same or of any execution thereupon now had or to be had,sued out executed or obtained By a deed executed on the 17thSeptember, 1951, which recites, inter alia, the institution of the presentaction, Selvadurai assigned to the first respondent Suppiah these interests“ and all chose or choses in action founded on the said 247 action bearing:U68 of the D. C. Jaffna Suppiah claimed that by virtue of thisassignment he was “ entitled to have himself substituted in place of thesaid plaintiff who is dead and to the exclusion of the plaintiff’s heirsThe learned District Judge accepted this contention and said in his order :
“ If the application of the petitioner Suppiah for substitution isnot granted, his interests would obviously suffer as the legal representa-tives of the deceased plaintiff have already agreed to settle this caseand withdraw the appeal.
I hold that Suppiah is entitled to be substituted in the room of thedeceased plaintiff and substitute him accordingly. The substitutionof the 1st to 4th substituted plaintiffs made on June 4th, 1951, is set8 aside. ”
The only provisions for the substitution of a party in the place of aplaintiff in a pending action who has died appear to be those containedin Chapter XXV of the Civil Procedure Code. Under those provisionsit is only the legal representative of the deceased plaintiff who can besubstituted, and section 394 (2) provides that for the purposes of thisChapter legal representative shall mean an executor or administrator,or in the case of an estate below the value of two thousand five hundredrupees the next of kin who have adiated the inheritance. Suppiah wasnot the legal representative of the deceased plaintiff and was thereforenot a person who could be substituted as a party in the place of theplaintiff. Mr. Ttenganathan sought to meet this difficulty by arguingthat Suppiah’s application must be regarded as an application that heshould be substituted in the place of the deceased’s legal representatives,the second to sixth respondents to the present appeal, who had alreadyl>een made parties plaintiff. The application was not understood inthat sense in the lower court, and it seems to me that its language cannotbear the meaning that Mr. Renganathan now seeks to put upon it. Itis therefore unnecessary to consider whether the assignments upon whichthe first respondent relies entitle him to be substituted in the place ofthe second to sixth respondents, and if they do, what rights he wouldacquire by stepping into their shoes after they have agreed to withdrawthe appeal that was filed by the deceased plaintiff.
The learned District Judge’s order of the 4th April, 1952, which is thesubject of the present appeal, must be set aside and the first respondentmust pay the appellants their costs in this court and the court below.
1’ulle J.—I agree.
Order set aside.