028-SLLR-SLLR-2003-V-2-JAYATILAKE-v.-LIYANAGE-AND-ANOTHER.pdf
190
Sri Lanka Law Reports
(2003j 2 Sri L.R
JAYATILAKE
v
LIYANAGE AND ANOTHER
COURT OF APPEALAMERATUNGA, J.,
BALAPATABENDI, J.
A.L.A. 333/2000
C. GALLE 14035/LFEBRUARY 26, 2002
Civil Procedure Code, section 25(b)- Power of Attorney – Action filed by Powerof Attorney holder – Maintainability – Plaint does not show that the plaintiff isout of the territorial jurisdiction – Is the plaint defective?
The action was filed by the plaintiff's Power of Attorney holder. Objection wastaken that the plaint does not show that the plaintiff is out of the jurisdiction.The Court directed the petitioner to amend the caption.
Held:
A Power of Attorney is valid – section 25(a) – only if the grantor is not with-in the jurisdiction of the court.
The caption of the plaint indicated that the plaintiff was resident within thelocal limits of the court. The plaint is defective and direction to amend thecaption is valid.
An APPLICATION for leave to appeal from the Order of the District Court ofGalle.
Cases referred to:
Udeshiv Mather – Sri Skantha Law Reports – Vol.IV – 40(CA)
Udesh v Mather – (1988) 1 Sri LR 2 (SC)
Alia Markarv Pathu Muttu and Natchiya – (1900) – 2 Browns Reports 64
William Silva v M.D.Sirisena – 68 NLR 206
Manohara R.de Silva for petitioner.
Respondent absent and unrepresented.
Cur. adv.vult.
CA
Jayatilake v Liyanage and another (Amaratunga, J.)
191
January 24, 2003AMARATUNGA, J.
This is an application for leave to appeal filed by the plaintiff- 01petitioner against the order of the learned District Judge directingthe petitioner to amend the caption of the plaint. The action wasfiled by the plaintiff's Power of Attorney holder for declaration of titleto the property described in the plaint.
On the 2nd trial date the learned Counsel for the defendantraised a preliminary objection to the maintainability of the action.
He has submitted firstly that the plaint does not show that the plain-tiff is out of the jurisdiction; secondly that the copies of the Powerof Attorney were not tendered to court together with the plaint and 10thirdly that the Power of Attorney does not disclose that the attor-ney has the power to institute that action. On this objection theplaintiff filed written submissions. The plaintiff's submissions werethat the Power of Attorney had been filed in Court and in any eventany omission to do so is curable. With regard to the submission theplaint does not show that at the time of filing the action the plaintiffwas out of the jurisdiction of court, the plaintiff's submission wasthat it is a matter to be proved by evidence at the trial.
The learned Judge has confined his order to the objection thatthe plaint does not disclose that at the time of filing action the plain- 20tiff was out of the territorial jurisdiction of the Court.
The absence of any reference in the Judge's order to the othertwo objections raised by the learned counsel enables me to pre-sume that the learned Judge was satisfied that the Power ofAttorney was before Court and that it empowered the Attorney tofile this action. The learned Judge has only dealt with the submis-sion that the plaint does not indicate that the plaintiff was out of theterritorial jurisdiction of the court at the time the action was filed. Inthis connection the relevant provision of the Civil Procedure Codeis section 25(b) which runs as follows:30
“25. The recognized agents of parties by whom such appear-ances and applications may be made or acts may be done are-
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[2003] 2 Sri L.R
Persons holding general powers of attorney from personsnot resident within the local limits of the jurisdiction of thecourt within which limits the appearance or application ismade or act done authorizing them to make such appear-ance and make application, and do such act on behalf ofsuch parties….” (Emphasis added)
In Udeshi v Mather,<1) this Court having considered the afore-said provision held that a Power of Attorney is valid, in respect of 40section 25(a) of the Civil Procedure Code, only if the grantor is notresident within the jurisdiction of the Court. This decision went up inappeal to the Supreme Court and the judgment of the SupremeCourt is reported in Udeshi v MatherS2I The Supreme Court hasreversed the decision of the Court of Appeal and has allowed theappeal on different grounds. However the Supreme Court did notcontradict, dissent from, vary or set aside the view of the Court ofAppeal that if a power of attorney is to be valid there must be proofbefore court that the grantor of the power of attorney is not residentwithin the jurisdiction of the Court. The authorities considered by 50Atukorale ,J. in the judgment of the Supreme Court support theview adopted by the Court of Appeal in Udeshi v Mather (supra).Those cases clearly support the proposition that in terms of sec-tion 25(b) that a Power of Attorney is valid only if the grantor is notresident within the jurisdiction of the Court. In Alia Markary PathuMuttu and Natchiyaobjection was taken to the validity of theproxy of the appellant, a Mohamaden woman, on the basis that sheand her two attorneys who signed her proxy on the strength of thePower of Attorney given to them are all resident within the local lim-its of jurisdiction of the Court and therefore the attorneys had no 60authority to sign the proxy. This objection was upheld but since theobjection had not been taken in the lower Court, the appellant wasallowed to rectify her proxy.
In William Silva v M.D.Sirisenaat the time the action wasinstituted on a proxy given by the attorney the plaintiff was residentwithin the limits of the jurisdiction of the Court. In appeal when thevalidity of the proxy was canvassed, the court upheld the objectionand held that, there was no valid action and accordingly dismissedthe action.
CA
Jayatilake v Liyanage and another (Amaratunga, J.)
193
These cases clearly show that in terms of section 25(b) of the 70Civil Procedure Code the attorney has authority to act for thegrantor of the Power of Attorney only if the latter is not within thelocal limits of the jurisdiction of the court.
In this instant case the caption of the plaint indicated that theplaintiff was resident within the local limits of the Court. There wasno material before Court to show the contrary. Therefore thelearned Judge came to the correct conclusion that the plaint wasdefective. Accordingly he directed the plaintiff to amend the caption.
The plaintiff should have complied with this direction without unnec-essarily wasting his time and money and the valuable judicial time soof this Court. There is no merit whatsoever in this application.Accordingly leave to appeal is refused and the application is dis-missed. The fact that the respondents have not appeared beforethis Court prevents me from ordering heavy costs against the peti-tioner. No costs.
BALAPATABENDI, J. – I agree.
Application dismissed.