044-SLLR-SLLR-2005-V-3-JEEVANI-INVESTMENTS-vs.-WIJESENA.pdf
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JEEVANI INVESTMENTSVS.
W1JESENA
COURT OF APPEAL.
EKANAYAKE, J.
SILVA, J.
CA 886/94(F).
DC COLOMBO 15513/L.
MAY 6, 2005.
Civil Procedure Code, sections 27(1), 27(2) – Appointment of a RegisteredAttorney-at-Law – Can a relisting application be filed by a person who is not theregistered Attorney?-Supreme Court (Court of Appeal) – Appellate Proce-dure-Copies of Records Rules 1978 – Rule 13(b).
HEUD:
The proxy on behalf of the appellant has been filed in the District Courtby Attorney W, and when the appeal was rejected due to non paymentof brief fees the attorney on record was W. The notice of appeal/appeal have been filed by Attorney W. The proxy given to W has notbeen revoked nor have any of the events stipulated in section 27(2)occured.
The relisting application has been filed by Attorney E.
When a proxy is filed it shall be in force until revoked with the leave ofCourt and after notice to the Registered Attorney by a writing signed bythe client and filed in Court or until the client dies or until the regis-tered Attorney dies or is removed or suspended or otherwise be-comes incapable to act and until all proceedings in the action areended and judgment is satisfied as regards the client.
The relisting application is bad in law as it has not been filed throughthe Attorney on record – W.
According to Rule 13(b) of the SC Rules if the appellant fails to complywith any direction given by the Court of Appeal to comply with suchdirections, as the court may think fit to give, court has the discretionarypower to reject the appeal.
CA
Jeevani Investments vs. Wijesena (Chandra Ekanayake, J.)
257
APPLICATION for relisting.
Cases referred to:Letchemanan vs. Christian 4 NLR 323
Seelawathie vs. Jayasinghe 1985 2 Sri LR 296
Asoka Fernando for 3rd defendant-appellant-petitioner.Sanath Jayatilleke for plaintiff-respondent-respondent.Sahana Mahfi for 2nd defendant-respondent-respondent.
Cur.adv.vult.
September 20, 2005.
CHANDRA EKANAYAKE, J.
This is an application made by the 3rd defendant-appellant-petitioner(hereinafter sometimes referred to as “petitioner”) by the petition dated
moving to set aside the judgment of the Court of Appeal dated18.11.1996 marked X8 along with the petition dismissing the appeal onthe ground of non payment of brief fees, for an order relisting this appealand order directing the Registrar to call for the original case record inD. C. Colombo Case No. 15513/L to this Court. The 2nd defendant-respondent-respondent (hereinafter some times referred to as the 2nddefendant) by his statement of objections dated 06.05.2004 has movedthis Court that the application of the petitioner be allowed.
The plaintiff has objected to the above application of the petitioner bystatement of objections dated 6th May 2004 pleading inter alia amongstother grounds that the present relisting application has been made by aperson other than the registered Attorney-at-law, who is a stranger in courtwho has no right to be entertained or be heard and moved to reject thesaid application.
After conclusion of oral submissions by Counsel, parties have tenderedtheir written submissions and same have been filed.
By the aforesaid petition, the petitioner had averred inter alia that thisappeal bearing No. C. A. 886/94 was preferred against the judgment of thelearned Additional District Judge of Colombo dated 26.07.94 as averred inparagraph 14 of the petition. When no correspondence with regard to thisappeal was received inquiries were made and then only the petitionerbecame aware that this appeal had been rejected on 18.11.1996 due tohis failure to deposit brief fees. It is further averred that according to the
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draft minute of this court dated 18.11.96 this appeal had not been listed onthat day and therefore what has to be inferred is that same had beendismissed not in open court but in the Chambers of the Judge. The peti-tioner has averred in paragraph 16 of the petition, that this appeal hadbeen dismissed,
without notice to pay brief fees.
without notice to appear before Court on 18.11.1996.
without calling the case in open court.
Accordingly the petitioner had moved for reliefs prayed by him in thepetition.
Judgment of this Court dated 18.11.96 is as follows:
“This appeal comes up for an order of Court today. Previously the Courtdirected the appellant to deposit fees for the preparation of a copy of therecord. The appellant failed to comply with that directive. Accordingly, theappeal is rejected in terms of Rule 13(b) of the Supreme Court(Court ofAppeal-Appellate Procedure-Copies of records) Rules 1978."
However there is no indication whether this order had been made inopen court or in the chambers. Examination of previous minutes in thedocket reveals that no mention date had been given for 18.11.1996. It wasurged by the counsel for the Plaintiff that according to the certified copy ofthe list of cases scheduled before this court on 18.11.1996 that this casewas not included in the above list. On a perusal of the above list the aboveposition is found to be correct.
As evidenced by the first minute available in the docket a direction hasbeen given to the Registrar of this Court in terms of rule 13(b) of the SupremeCourt (Court of Appeal – Appellate Procedure – Copies of Records) Rules,1978 to inform the appellant to deposit such fees before 31.10.1996 andon which day the appeal will be mentioned for a final order of Court. Minutebearing the date 05.09.1996 shows that notice had been issued on theappellant. The next minute is the minute dated 15.11.1996 which beingthe last minute prior to 18.11.1996 (the date the order of rejection wasmade). According to the rubber stamp placed under the minute of 15.11.1996it has to be observed that although notices have been issued on theAppellant and the Attorney-at-law requesting them to deposit the necessaryfees for appeal briefs neither the Appellant nor his Attorney-at-law haddeposited the said amount. Thereafter on 18.11.1996 the appeal had beenrejected by Hon.Dr. Ranaraja J. However it has to be observed that thenotice which had been issued as evidenced by the minute of 05.09.1996had not been returned.
CAJeevani Investments vs. Wijesena (Chandra-Ekanayake, J.)259
Rule 13(b) of Supreme Court (Court of Appeal-Appellate Court Procedure-Copies of Records) Rules, 1978 reads as follows:
13(b) “Where the appellant fails to pay the fees due under these rules,the Court of Appeal may direct the appellant to comply with such directionsas the Court may think fit to give, and may reject the appeal if the appellantfails to comply with such directions.”
According to the above rule if the Appellant fails to comply with anydirections given by the Court of Appeal to comply with such directions asthe court may think fit to give, court has the discretionary power to rejectthe appeal. It was urged by the counsel for the Plaintiff that the present re-listing application has been made by a person other than the regular Attorney-at-law and hence there is in law a stranger in court who has no right to beentertained or to be heard. The present application for re-listing (dated 19thNovember 2003) has been filed by an Attorney-at-law Kapila DushanthaEpitawela with an affidavit of one S. R. Kumara Weerasinghe who is said tobe the Managing Director of the 3rd Defendant Company dated 19.11.2003.The objection taken up by the Plaintiff was that the above petition has beenfiled by an Attorney-at-law other than the Plaintiffs registered attorney onrecord and his position was that when the above petition was filed there wasa valid proxy on behalf of the party by another registered Attorney-at-law. Toverify this, this court called for the original record in District Court ColomboCase No. 15513/L and same is available for perusal of this Court.
Perusal of the District Court case record reveals that the proxy onbehalf of the 3rd Defendant has been filed in the District Court by WijesingheAssociates and until the record in the said DC Colombo case 15513/Lwas forwarded to this court after preferring this appeal there had been nochange of the registered Attorney on record and for all purposes aforesaidproxy has remained valid. After the appeal was rejected by the order ofthis Court dated 18.11.1996 the 3rd Defendant filed petition dated
through an Attorney K. D. Epitawela. At this inquiry into the re-listing application made by the 3rd Defendant the Plaintiff took up theaforesaid objection that the 3rd Defendant has filed the present petitionthrough a different registered attorney-at-law without revoking the proxywhich had been held on his behalf by Wijesinghe Associates as evidencedby the original District Court record. In this regard it would be pertinent toconsider sub-sections 27(1) and (2) of the Civil Procedure Code whichread as follows:
“27(1) The appointment of a proctor to make any appearance orapplication, or do any act as aforesaid, shall be in writing signed by the
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client, and shall be filed in court; and every such appointment shall containan address at which service of any process which under the provisions ofthis chapter may be served on a proctor, instead of the party whom herepresents, may be made.
When so filed, it shall be in force until revoked with the leave of thecourt and after notice to the proctor by a writing signed by the client andfiled in court, or until the client dies, or until the proctor dies, is removed,or suspended, or otherwise becomes incapable to act, or until allproceedings in the action are ended and judgment satisfied so far asregards the client.”
According to the above sub section (2) of section 27, when a proxy isso filed it shall be in force until revoked with the leave of the court and afternotice to the proctor by a writing signed by the client and filed in court oruntil the client dies or until the proctor dies, is removed or suspended orotherwise becomes incapable to act and until all proceedings in the actionare ended and judgment is satisfied as regards the client. In the casebefore us obviously the judgment is not satisfied. According to the noticeof appeal and the petition of appeal filed by the 3rd Defendant both hadbeen filed by the same attorney-at-law who held the proxy on behalf of the3rd Defendant viz.: Wijesinghe Associates. In response to the aboveobjection the petitioner in this case took up the position that since thisbeing a re-listing application the 3rd Defendant petitioner need not file there-listing application through the same registered attorney who earlier heldthe proxy on his behalf. For all purposes it has to be conceded that theproxy filed by Wijesinghe Associates on behalf of the 3rd Defendant hasnot been revoked when this relisting application was filed in this Court.
In the light of the aforesaid circumstances now necessity has arisen toconsider the decision in Letchemanan vs. Christian(,). In the above caseit was held that:
"No proctor is entitled to appear for a client unless he has a proxysigned by such client; and there cannot be more than one proctor at thesame time on the record”.
In the instant case obviously there had been two proxies of two attorneys-at-law on behalf of the 3rd Defendant when this relisting application wasfiled.
In the case of Seelawathie vs. Jayasinghe (2) per Senevirathne,J.(P/CA):
CA
Jeevani Investments vs. Wijesena (Chandra Ekanayake, J.)
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“It is a recognized principle in court proceedings that when there is anattorney-at-law appointed by a.party such party must take all steps in thecase through such attorney-at-law”
In the case at hand the present re-listing application has been filed notthrough the attorney-at-law appointed by the 3rd Defendant but by anotherattorney-at-law.
For the reasons enumerated above I conclude that the objectiontaken by the plaintiff with regard to filing of the petition by the 3rdDefendant through an attorney-at-law other than who held the proxyis a valid objection and on this ground alone the 3rd Defendant’spresent application has to be rejected. In those circumstances thenecessity to consider the other objections does not arise.
Though not averred in the petition, petitioner has urged in the writtensubmissions filed in this Court that the application for relisting is distinctand separate from the appeal which has been rejected nowand since it isso rejected the original proxy given to Mr. Sarath Perera attorney-at-law inthe District Court is not in operation now, and thus the plantiff has noproper appearance before this Court. It has to be noted that the plaintiffin D. C. Case No. 15513/L is the same person who is the Plaintiff-Respondent named in the present petition and therefore the proxyfiled by Attorney-at-Law Sarath Perera on behalf of the plaintiffwill remain valid for all purposes until it is duly revoked or until theoccurrence of any of the events stipulated in section 27(2) of theCivil Procedure Code. But in this case neither the above proxy isduly revoked nor any of the events stipulated in section 27(2) hasoccurred. Therefore the proxy filed by the attorney-at-law SarathPerera remains valid up to the filing of objections and even uptonow. For the foregoing reasons I conclude that the above contention ofthe petitioner’s Counsel is of no merit and same is hereby rejected.
Accordingly the 3rd Defendant-Appellant-Petitioner’s application ishereby rejected. In all circumstances no order is made with regard tocosts here.
The Registrar of this Court is directed to forward the record in Case No.15513/L to the respective District Court forthwith.
RAN JITH SILVA, J – / agree.Application allowed.