018-SLLR-SLLR-2004-V-1-GNANAWATHIE-AND-OTHERS-v.-WIJESINGHE.pdf
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GNANAWATHIE AND OTHERSvWIJESINGHECOURT OF APPEALDISSANAYAKE, J. ANDSOMAWANSA, J.
A. 166/96
C. COLOMBO 15304/LAUGUST 26, 2002 ANDJANUARY 23, 2003
Civil Procedure Code, sections 27(1)(2) 87(1)(3) 168, and 181 – Plaintiff absent- No instructions – Should he be noticed ? – Action dismissed – Legality of theorder – Purging of default – Procedure – Laches -Affidavit of a non-Christian.
Held:
When the trial was refixed an attorney-at-law had appeared instructedby the registered attorney and had informed court that he had noinstructions from the plaintiff.
There was no legal requirement that notice be issued on the plaintiff-appellants when the trial was refixed, as the appellant’s registered attor-ney was present in court.
When court acts under section 87(1), the plaintiff-appellants could applyto court under section 87(3). The application must be (i) within a rea-sonable time and (ii) supported by an affidavit.
There is laches on the part of the plaintiff-appellants. The plaintiffs haveslept over the application for over 7 months.
Once the registered attorney appoints a counsel, the counsel assumesfull control of the case.
The affidavit does not comply with the requirements of section 168,which states that, “witness not professing to be Christian or.. shall beexamined on affirmation”. In the instant case, it was sworn to.
APPEAL from the judgment of the District Court of Colombo.
Cases referred to:
Jinadasa v Sam Silva – (1994) 1 SRI LR 232.
CA
Gnanawathie and others v Wijesinghe
(Somawansa. J.)
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Chandrawathiev Damayanthie Abeywardena & others (2002) 1 SRI LR 43(SC).
Damayanthie Abeywardena and Another v Hemawathie Abeywardena -(1993) 1 SRI LR Page 272 (CA)
Clifford Ratwatte v Thilanga Sumathipala and others (2001) 2 SRI LR 55.
Surath Piyasena for plaintiff-appellant.
M.U.M. AH Sabryfor defendant-respondent.
Cur.adv.vult.
May 23, 2003SOMAWANSA, J.
This is an appeal arising from the order of the learned Additional 01District Judge of Colombo dated 24.04.1996 dismissing an applica-tion made by the plaintiff-petitioners-appellants hereinafter referred toas the appellants to have the instant action restored to the trial rollwhich was dismissed on being informed by the registered attorney-at-law for the appellants that he has no instructions from the appellants.Proceedings reveal that the appellants were not present in Court onthe day the action was dismissed.
Briefly the relevant facts are when the case was taken up for trialon 14th July, 1994 the attorney-at-law for the defendant-respondent- 10respondent, hereinafter referred to as the respondent moved for apostponement and the trial was re-fixed for the 10th of October 1994.
On 15.07.94 as per journal entry 16, the attorney-at-law for therespondent had filed a motion moving that the case be called on
in Court No. 06 to have the trial re-fixed for another dayas the counsel for the respondent was indisposed on 10.10.1994. On
the case was called and trial was re-fixed for the 20thOctober 1994. When the trial was taken up on 20.10.1994 the appel-lants were absent and their attorney-at-law had intimated to court that
as the attorney-at-law for the defendant had got the trial date altered 20before the Additional District Judge the appellants could not havebeen aware that the trial has been re-fixed for 20.10.1994. In the cir-cumstances, the Court made order that respondent was not entitledto costs for the day and re-fixed the trial for 13th February, 1995.
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On 13.02.1995 the appellants were not present in Court. HoweverMr.Jayawardena, attorney-at-law purporting to appear on behalf of theappellants informed Court that he had no instructions from the appel-lants. Thereupon the Court dismissed the action with costs. On
as per journal entry 20 the appellants filed a fresh proxyalong with a petition and affidavit seeking to have the said order of dis-missal of the action vacated and have the case restored to the trialroll. This application as stated above was dismissed by the learnedAdditional District Judge on the basis that the application is made after8 months from the date of dismissal of the action and that there is noprovision in the Civil Procedure Code for the appellants to make anapplication of this nature as the action has been dismissed on anapplication of the attorney-at-law for the appellants.
At the hearing of this appeal it was contended by the counsel forthe appellants that inasmuch as Mr. Jayawardena, attorney-at-lawhad no locus standi to make any statement on behalf of the appel-lants and that in any event the record does not bear that the said Mr.Jayawardena attorney-at-law appeared on the instructions of the reg-istered attorney-at-law for the appellants, Court could not have dis-missed the action on the basis that there was no instruction from theappellants.
While conceding that the record does not bear that the saidMr.Jayawardena, attorney-at-law appeared on the instructions of theregistered attorney-at-law for the appellants, in paragraph 09 of thepetition and paragraph 10 of the affidavit filed by the appellants theythemselves have admitted that on 13.02.1995 the said Mr.Jayawardena appeared on the instructions of the appellant’s regis-tered attorney-at-law Mr.S.A. Hemapala and informed Court that hehas no instructions from the appellants to proceed with the trial. In thecircumstances, the argument that Mr. Jayawardena had no instruc-tions from the registered attorney-at-law of the appellants or that hehad no locus standi to make any statement on behalf of the appellantscannot succeed.
In Jinadasa v Sam Silva it was observed that –
“Once the registered attorney has done his duty of appointingcounsel i.e.retaining and instructing him, counsel assumes fullcontrol of the case, and becomes the conductor and regulator ofthe whole thing”.
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(Somawansa. J.)
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It is submitted by the counsel for the appellants that inasmuch asthe plaintiffs (appellants) were not present in court on 13th February,
1995 they were not in a position to testify as averred in the affidavitfiled of record that Mr. Jayawardena, attorney-at-law had appeared onthe instructions of the registered attorney-at-law for the plaintiffs(appellants). In support of this contention he cited the judgment inChandrawathie v Damayanthie Abeywardena and anotherW wherethe Supreme Court held approving the judgment of S.N.Silva, J. as he 70then was in Damayanthie Abeywardena and Another v HemalathaAbeywardena and others.^
*The rule in section 181 which confines an affidavit to ‘a state-ment of facts as the declarant is able of his own knowledge andobservation to testify to’ is intended to restrict the contents of affi-davits to direct evidence as prescribed in section 60 of theEvidence Ordinance. By necessary implication it excludeshearsay from such affidavits . The only exception is that in inter-locutory applications a statement of what is believed, as to therelevant facts; may be included. This exception is subject to a soproviso that reasonable grounds for such belief should also beset forth in the affidavit”.
Applying this principle to the affidavit tendered by the appellants inthe instant case though the appellants were not present in Court theyhave set forth reasonable grounds for their belief as to what transpiredon 13.02.1995. For the appellants themselves in paragraph 09 of theiraffidavit state that this information was given to them by their regis-tered attorney-at-law Mr.S.A. Hemapala when they met him in the firstweek of March 1995.1 would say this is reasonable grounds for theirbelief as to what transpired in Court on 13.02.1995.so
It is also contended by the counsel for the appellants that the Courthad erred by not issuing notice on the appellants informing of the trialdate on 13.02.1995. In this regard I would say section 27(1) and (2)of the Civil Procedure Code would supply the answer. The relevantprovisions of the said section is as follows:
‘The appointment of a registered attorney to make any appear-ance or application, or do any act as foresaid, shall be in writingsigned by the client, and shall be filed in court; and every suchappointment shall contain an address at which service of any
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process which under the provisions of this Chapter may be 100served on a registered attorney, instead of the party whom herepresents, may be made”.
(2) “When so filed, it shall be in force until revoked with the leaveof the court and after notice to the registered attorney by a writ-ing signed by the client and filed in court, or until the attorneydies, is removed, or suspended, or otherwise becomes inca-pable to act, or until all proceedings in the action are ended andjudgment satisfied so far as regards the client”.
Applying the provisions contained in the said section to the instantcase it becomes manifest that there was no legal requirement that nonotice be issued on the appellants for on 20.10.1994 when the trialwas re-fixed for the 13th of February, 1995 appellants’ registeredattorney-at-law was present in court and this is borne out by the pro-ceedings of that day. In the circumstances, on 13.02.1995 when thetrial was taken up and if as stated in the affidavit the letters sent to theappellants by the registered attorney informing the change of trial datewere returned, the registered attorney-at-law was duty bound toinform Court his inability to communicate with the appellants.However the attorney-at-law who appeared in Court on 13.02.1995 onthe instruction of the registered attorney-at-law merely informed that 120he had no instructions from the appellants. Accordingly, I would saythat the learned Additional District Judge was correct in the circum-' stances to have dismissed the action in view of the provisions con-tained in section 87(1) of the Civil Procedure Code which reads asfollows:
“Where the plaintiff or where both the plaintiff and the defendantmake default in appearing on the day fixed for the trial, the courtshall dismiss the plaintiff’s action”.
Where the Court proceed to act under section 87(1) of the CivilProcedure Code and dismiss the plaintiffs’-(appellants’) action the 130plaintiffs (appellants) could apply to Court under section 87(3) to havethe dismissal set aside. The relevant section reads thus:
‘The plaintiff may apply within a reasonable time from the dateof dismissal, by way of petition supported by affidavit, to have thedismissal set aside, and if on the hearing of such application, ofwhich the defendant shall be given notice, the court is satisfied
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Gnanawathie and others v Wijesinghe
fSomawansa. J.)
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that there were reasonable grounds for the non-appearance ofthe plaintiff, the court shall make order setting aside the dis-missal upon such terms as to costs or otherwise as it thinks fit,and shall appoint a day for proceeding with the action as from thestage at which the dismissal for default was made."
The requirement of section 87 (3) of the Civil Procedure Code asto an application to cure a default are two fold:
the plaintiff must make such application within a reasonabletime from the date of dismissal of his action.
the plaintiff must make such application by way of petitionsupported by affidavit.
It was contended by the counsel for the respondent that the appel-lants have failed to comply with either of the requirements, in that theapplication to purge the default had been made more than 8 monthsafter the date of the dismissal of the case and that the affidavit of theappellants does not comply with the requirements of section 168 ofthe Civil Procedure Code. I think there is force in this argument.
On an examination of the record, it appears the date of dismissalof the action is 13.02.1994. The application to purge the defaultthough the petition is dated 25.09.1995 has been filed on 04.10.1995.According to paragraph 09 of the petition the appellants have come toknow of the dismissal of the case in the first week of March 1995.Even from March 1995 the appellants have slept over the applicationfor over 7 months. In any event no reasonable cause shown for suchdelay.
As for the affidavit of the appellants, which was in Sinhalese com-menced with the following words:
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The jurat of the affidavit was worded as follows:
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It is therefore apparent that the affidavit of the appellants do notcomply with the requirements of section 168 of the Civil ProcedureCode which states that “witnesses not professing to be Christians orJews shall be examined on affirmation”. The same rule shall apply tothe affidavit. In Clifford Ratwatte v Thilange Sumathipala & othersW itwas held:
‘The defendant states that he is a Christian and make oath. Thejurat clause at the end of the affidavit states that the deponenthas affirmed. The affidavit is defective”.
I think the same principle in reverse would apply to the affidavit ofthe appellants in the instant case.
For the aforementioned reasons, I do not propose to interfere withthe order of the learned Additional District Judge of Colombo dated24.04.1996. The appeal will stand dismissed with costs fixed at Rs.5000/-.
DISSANAYAKE, J. – I agree.
Appeal dismissed.
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