040-SLLR-SLLR-2005-V-1-JAYASINGHE-AND-ANOTHER-vs.-PEDRIS-AND-ANOTHER.pdf
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Sri Lanka Law Repons
(2005) 1 Sri L. R.
JAYASINGHE AND ANOTHERvs
PEDRIS AND ANOTHERCOURT OF APPEAL,
AMARATUNGA, J., ANDWIMALACHANDRA, J.,
A./MR. 172/03
C. 24640/ MR
23rd APRIL, AND 22nd JUNE, 2004
Civil Procedure Code, sections 395 and 754(2)- Death of a party-Right to suesurvives – Substitution – Executors right whether probate has been obtained ornot to be substituted – Revision – Exceptional circumstances – Negligence ofattorney-at-law – Is it a ground for relief ?
On the death of the sole plaintiff, the executors of his Last Will, weresubstitued, After the order for substitution, the respondents objected and courtdismissed the objections on the ground that already there is an ordersubstituting the exceutors in the place of the decased plaintiff. The defendantmoved by way of revision.
CA
Jayasinghe and Another vs
Pedris and Another (Wimalachandra, J)
291
HELD:
When the sole plaintiff dies leaving a Last Will, and when the right tosue survies, the executor appointed therein has a right to have himselfsubstituted whether probate has been obtained or not at the time ofapplication for substitution.
This is an appeallable order under section 754(2). The defendants do. not disclose exceptional circumstances warranting the exercise of the
revisionary jurisdiction. The only excuse given is that the defendant’sattorney-at-law had taken down the wrong date, it is not an excuse, andhis negligence cannot be considered as an exceptional circumstance.
APPLICATION in revision from an order of the District Court of Colombo,
Cases referred to:
Rustom vs Hapangama & Co, – (1978 – 79) 25 NLR 255
Ekanayake vs Gunasekera – (1986) CALR 2 – 250 at 255 ■
Packeer Mohideen vs Mohamed Cassim – 4 NLR 299
Scharrengnivel vs Orr – 28 NLR 302
Ramasamyvs Murugan Kanawade – (1986) CALR 2-37
Anang Paul vs Peareylal (1986) – P & H 87
Ajith vs Rathindra – (1980) C. 117
Faizer Musthapa for defendant petitioner
Champaka Ladduwahetty for substituted plaintiff respondent
Cur. adv. vult.
November 4, 2004WIMALACHANDRA, J
This is an application in revision filed by the petitioner on 03.02.2003 fromthe order made by the Additional District Judge of Colombo on 07.10.2002.Briefly, the facts relevant to this application are as follows :
Dr. D. J. Devapriya Pedris instituted the action bearing No.24640/MR in the District Court of Colombo against the defendants-petitioners (hereinafter referred to as the defendants) to recover a sum of
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_ Rs. 2,855,000/- which included the capital and interest on a sum of Rs.2,000,000/- lent to the defendants who were carrying on a partnershipbusiness.
The defendants admit in their answer that they borrowed the saidsum of money from the said D. J. Devapriya Pedris, but state that theypaid a sum of Rs. 1,240,000/- to one Rupa Saluwadana, a person whowas nominated by the said Dr. Pedris to accept the money on behalf ofhim. The said Dr. Pedris, the original plaintiff died in February, 2001 andthe 1st and 2nd respondents (hereinafter referred to as thesubstituted-plaintiffs) made an application to Court to have themselvessubstituted in place of the deceased original plaintiff, Dr. Pedris. Thesubstitued-plaintiffs made that application for substitution on the groundthat the deceased original plaintiff has left a last will and that they wereappointed as the executors under the said will. The said application forsubstitution being supported on 04.05.2001, the learned judge made theorder on 04.05.2001 allowing the application for substitution in place of thedeceased plaintiff. After the learned judge made the said order, the attorney-at-law of the defendants objected to the substitution and the Court permittedthem to file objections. When the matter came up on 07.10.2002 beforethe Additional District Judge of Colombo, the learned judge dismissed theobjections taken by the defendants to the said order on 04.05.2001. bywhich the 1st and 2nd substituted plaintiffs were substituted in place ofthe deceased plaintiff, on the ground that his predecessor had alreadymade the order substituting them (1st and 2nd substituted plaintiffs) asthe substituted plaintiff. It is against this order the defendants have filedthis application in revision.
There is a right of appeal against the said order with the leave of thisCourt in terms of section 754(2) of the Civil Procedure Code. However theplaintiffs without exercising the statutory right of appeal have filed thisapplication in revision. In these circumstances, the revisionary powers ofthis Court will be exercised only if the defendant’s application disclosesexceptional circumstances warranting the exercise of the revisionaryjurisdiction of this Court.
In Rustom vs Hapangama 5 Co,01 Vythialingam, J. after anexhaustive analysis of all the authorities on this question held that powerof revision conferred on the Appellate Court is very wide and can beexercised only in exceptional circumstances or when there is somethingillegal about the order made by the trial judge which has deprived thepetitioner of some right.
CA
Jayasinghe and Another vs
Pedris and Another ( Wimalachandra, Jj
293
It is to be observed that the defendants have filed this application on
nearly four months after the impugned order dated 07.10.2002had been made. The only exceptional ground urged by the defendants isfound in paragraph 10 of the petition. The defendants state that theirattorney-at-law on record had inadvertently taken down the wrong date asthe date on which the order was to be delivered and as such a leave toappeal application could not be filed within the stipulated time period interms of section 754(2). It is no excuse to say that the defendants’attorney-at-law had taken down a wrong date as the defendants wouldhave been there in Court when the said order was delivered. There is noaverment in the petition that they were not present in Court on that day. Inany event the negligence of the attorney-at-law for not taking down thecorrect date cannot be considered as an exceptional circumstance.
The Supreme Court has time and again held that the negligence ofthe attorney-at-law is not a ground for relief. In the case of Ekanayake vs.Gurtasekerafv Perera, J. made the following observation at page 255:
“In interpreting the parallel provisions of the Civil ProcedureCode the Supreme Court has in no uncertain terms, held that a partyto a civil action must indeed suffer, for the negligence of his lawyer.In Packeer Mohideen v. Mohammed Cassim (3) this principle wasclealy laid down by Bonser, C. J. In this case the Defendant afterfiling answer took no steps to get ready for trial. The case proceededex-parte dnd a Decree Nisi was entered against him. The proctorappeared in Court, and said that he had no instructions, and withdrewfrom the case. The Defendant said that he had mistaken the date oftrial. It was held that it was the duty of the Proctor, to have informedthe Defendant, of the proper date of the trial and to have asked forinstructions and that as the Proctor did not appear to have done hisduty he, was to be blamed for the absence of the Defendant, and theDefendant must suffer for the fault of his Proctor.”
Perera, J. in the aforesaid case of Ekanayake vs. Gunasekera (supra)referred to the Supreme Court case of Scharrengnivei vs. Orr(t,)where itwas held that, where a judgment is entered against a party by default, it isnot a sufficient excuse for his absence that his proctor had failed to informhim of the date of the trial.
In Ramasamy vs. Murugan Kanawadi{5 the Court of Appeal tookthe following view:
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“On a date fixed for trial the defendant being absent the case washeard ex-parte and decree nisi was entered. A copy of the said decreenisi being served on the Defendant, the Defendant filed papers to setaside the decree nisi but was disallowed from so doing.
The learned District Judge held that the Defendant’s attorney-at-lawbeing negligent in keeping track of the case was not a reasonableground for the Defendant’s default and ordered that the decree be madeabsolute.
The learned District Judge having taken the view that the Appellanthad failed to satisfy him that there were reasonable grounds for default,oh an examination of the order and the material, there were no groundsfor the view that his order was wrong.”
The written submissions filed by the learned counsel for thedefendants contended that the order made by the Court substituting the1 st and 2nd substituted plaintiffs in place of the deceased plaintiff was nota proper order as the 1 st and 2nd substituted plaintiffs had not obtainedlimited probate in order to have themselves substitured as the legalrepresentatives of the deceased plaintiff in terms of the Section 395 of theCivil Procedure Code.
Section 395 of the Civil Procedure Code reads as follows :
“In case of the death of a sole plaintiff or sole surviving plaintiff thelegal representative of the deceased may. where the right to sue survives,apply to Court to have his name entered on the record in place of thedeceased plaintiff, and the Court shall thereupon enter his name andproceed with the action"
In terms of Section 395, on the death of a sole plaintiff, the legalrepresentative may be substituted by the Court on his application, if theright to sue survives. This being an action to recover money, the right tosue survives. The deceased plaintiff, Dr. Devapriya Pedris died leaving alast will, executed on 20.01.2001 bearing No. 3934 attested by A. R.Mathew N. P. In the said last will the 1st and 2nd substituted plaintiffswere appointed as the executors.
In my view when the sole plaintiff dies leaving a will, and when theright to sue survives, the executor appointed therein, has a right to have
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Jayasinghe and Another vs
Pedris and Another ( Wimalachandra, J)
295
himself substituted whether probate has been obtained or not at the timeof application for substitution.
I find support for this view in Sarkar’s Law of Civil Procedure 8thedition volume 2 at pages, 1144-1145, where the following observationshave been made on the Indian Section Or. XXII Rule 3(1) of which thesecond part is identical with ours (S. 395) :
“Where the applicant claims to be legal representative of the deceasedplaintiff on the basis of a will executed prior to suit, the cause would becovered under Or. 22 R. 3 (Anang Paul Vs. Peareylal(6))
An executor of a will can be substituted in place of deceased plaintiffand can institute or prosecute an action but no decree can be passedbefore probate is obtained (Ajith Vs. Rathindram)
In these cirucumstances, I am of the view that the order made by theDistrict Court on 04.05.2001 is correct. It is to be noted that it is only afterthe said order substituting the 1 st and 2nd plaintiffs in place of the deceasedplaintiff was made the defendants moved to file objections. By then thelearned judge had already made the order. In any event the learned judge’sorder is in accordance with Section 395 of the Civil Procedure Code.
Thereafter when the matter came before the present Additional DistrictJudge on 07.10.2002 he correctly held that his predecessor had alreadymade the order for substitution and made order dismissing the objection.In my view there is nothing illegal about the order made by the learnedjudge.
In any event, the order made on 04.05.2001 and the impugned orderdated 07.10.2002 will not in any way prejudice the defendants, The personsubstituted will only be the legal representative of the estate. If thedefendants loose their case it is the estate of the deceased and not thesubstituted plaintiffs that is entitled to recover the monies from thedefendants.
However, the learned counsel for the 1 st and 2nd substituted plaintiffsinformed this Court, that they have now obtained the probate in theTestamentary Action filed in respect of the estate of the deceased originalplaintiff, Dr. D. J. Devapriya Pedris.
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Accordingly, it is my view that there is no illegality in the aforesaidorders made by the Court. Moreover, by those orders the defendants havenot been deprived of some right.
In view of the reasons set out above, I refuse the petitioner’sapplication in revision. The application is accordinaly dismissed with costsfixed at Rs. 7,500/-
AMARATUNGA, J. — I agree.
Application dismissed.