036-NLR-NLR-V-55-NELSON-DE-SILVA-Appellant-and-S.-CASINATHAN-Acting-Rubber-Commissoner-Resp.pdf
GRATIAEN J.—Nelson de Silva o. Gasinathan
121
1953Present: Gratiaen J. and Gunasekara J.NELSON DE SILVA, Appellant, and S. GASINATHAN (ActingRubber Commissioner), Respondent
S. C. 20—D. G. Colombo, 17,622
Action—Plaintiff described as public officer—Right to sue in personal capacity.
A plan tiff, merely because he describes himself by reference to his public officein the caption to the plaint, is not precluded from obtaining, with the consentof the defendant, a decree in his favour in his personal capaoity.
Proctor—Proxy not filed—Circumstances when failure may be excused.
An application for the execution of a decree was signed by a proctor in whosefavour no proxy had been granted by the plaintiff. It was, however, establishedthat he was an assistant to the proctor on record and that he had signed theapplication on behalf of the latter, and not as a proctor purporting to actindependently on his own responsibility. Further, there was evidence ofacquiescence on the part of the defendant and of ratification by the plaintiff.
Held, that in the circumstances the irregularity occasioned by the absenceof a proxy in favour of the proctor was cured.
Appeal from a judgment of the District Court, Colombo.
Renganatkan, for the defendant appellant.
W. J aye war dene, with D. R. P. Goonetilleke and M. L. de Silva,for the plaintiff respondent.
Cur. adv. vutt.
February 9, 1953. Gratiaen J.—
This action was instituted on 6th February, 1947, in the District Courtof Colombo by S. Casinathan, who was described in the caption to theplaint as “ the Acting Rubber Commissioner of Ceylon ”, to recover fromthe defendant a sum of Rs. 5,976-75 in connection with certain rubbertransactions which had taken place between the parties. The defendantdenied liability, and pleaded inter alia that it was “ not competent to theplaintiff either in his personal capacity or as Acting Rubber Commissionerto maintain the action ”. He counter claimed a sum of Rs. 11,839 • 73 fromthe plaintiff, which, he alleged, would be found due to him in respect of thetransactions referred to in the plaint.
In March, 1949, before the action had been concluded, the parties agreedto submit their disputes to the arbitration of an Advocate of the SupremeCourt, and the memorandum embodying their agreement expressly pro-vided, inter alia, that “ in the event of any sum being found due from thedefendant to ike Rubber Commissioner on the cause of action pleaded in theplaint, then and in such case the defendant should pay the sum to theplaintiff
The arbitrator made an order awarding to the plaintiff a sum ofRs, 5,979* 75 and costs, and rejected the defendant’s counter claim,
6LV
23. If. B 29786-1,592 (10/53)
122
GRATTAEK- J.—Nelson He Silva v. Casinathan
In due course a decree of Court was entered in terms of the award, and on30th January, 1950, the learned District Judge allowed-an applicationmade on the plaintiff’s behalf for execution of the decree against thedefendant. The ITiscal thereupon seized certain properties belongingto the defendant, who later intervened and applied for a recall of the writon the ground that it had, for a variety of reasons, been irregularly issued.On 14th March, 1951, the learned Judge, after due inquiry, refused theapplication with costs, and declared that the execution proceedings werevalid. The present appeal is from this order.
The only grounds upon which learned Counsel for the defendantchallenged the correctness of the order under appeal were :
That the decree entered in terms of the arbitrator’s award was in
effect a decree in favour of the plaintiff not personally but in his“representative capacity ” as “ the Acting Rubber Commissionerof Ceylon ” ; and that, when the plaintiff had vacated that officeon 1st April, 1950, his rights under the decree and under thepending execution proceedings had been “ transmitted byoperation of law” to his successor in office, who alone wascompetent thereafter to proceed with the litigation.
That the application for the execution of the decree had been signed
by Mr.'John Wilson (junior), Proctor, in whose favour no validletter of appointment had at that time been filed of recordauthorising him to represent the plaintiff in the action (vide Sec. 27'of the 'Civil'Prqpedure Code); and that in the result the executionproceedings were void ab initio and inoperative as against thedefendant. .
The view which I have taken is that there is no substance in either ofthese grounds of objection. The decree must, in my opinion, be interpre-ted as having been entered in favour of the plantiflf personally, and thecommission issued to the arbitrator makes it clear that this was done inconformity with the expressed intention of the parties. If the defendanthad contracted with the plaintiff purely as a public officer acting for andon behalf of the Government of Ceylon, the action should, in accordancewith the provisions of the Civil Procedure Code, have been instituted inthe name of the Attorney-General, and not in the name of the plaintiffeither personally or in any representative capacity. The public Office of“ Rubber Commissioner ” has not been declared by statute to createa distinct legal persona competent to sue or to be sued in our Courts, orcapable, as such, of being “ represented ” in legal proceedings by someoneelse. The words “Acting Rubber Commissioner” appearing after theplaintiff’s name in the caption to the plaint are therefore words only ofdescription. If the cause of action pleaded by the plaintiff did not entitlehim to assert a personal right to sue the defendant {vide Bowstead onAgency, 9th Edn., Art. 130) the defendant should not have agreed that,in the event of his liability being established, a decree should be enteredagainst him in favour of the plaintiff. He is certainly precluded fromraising the issue at this stage. Indeed, the plaintiff has now explained thathe was in truth acting as an agent for and on behalf of an undisclosed
GRATIAEN- J.—Nelson de Silva v. Oasinathan
123
principal, namely, the Board of Trade in England, and noli on behalf of theGovernment of Ceylon. The terms of his agency and of his contract withthe defendant do not rebut the presumption that, in these circumstances,he was entitled to institute the action in his own name for the benefit ofhis principal in London. I therefore hold that the plaintiff’s rights underthe decree sought to be executed were not extinguished by reason of hisretirement from the office of Rubber Commissioner.
There remains for consideration the effect of the admitted irregularityoccasioned by the absence ofaproxy granted by the plaintiff in favour ofthe proctor who had signed the formal application to execute the decree.It is common ground that the only proctor authorised in writing to act forthe plaintiff at that time was Mr. John Wilson (senior), whose son hadjoined his father’s business as an assistant. Nor is it disputed that, at variousstages during the trial and the arbitration proceedings, Mr. Wilson (junior)had from time to time, without objection from the defendant or his law-yers, acted as the plaintiff’s proctor in the litigation in his father’s absence.
It has been argued that the acquiescence of the defendant’s lawyers inthese professional appearances had been prompted only by courtesy.That I do not doubt, but the courtesy extended to Mr. Wilson (junior)was, nevertheless, the courtesy of recognition, vide Cassim Satar v.Marikar x.' ; ' ~
There are two other matters which are relevant to a consideration of thisparticular ground of objection. In the first place, Mr. W-ilson (junior) hadadmittedly signed the formal application on 6eAaZ/'qf‘thd'prdetor on record,and not as a proctor purporting to act independently op his own responsi-bility. In the second place, when the defendantpbtained an interim orderfor a stay of execution pending the inquiry into the main application,he had raised no objection at the time complaining that the application -for execution of the decree had been initiated by a proctor without autho-rity. This conduct constituted a further re cognition of Mr. Wilson (junior)’sprofessional status in the litigation. At a much later date, when theobjection to Mr. Wilson (junior)’s status was for the first time taken on thedefendant’s behalf, the plaintiff formally appointed him to act in associa-tion with his father as his assistant, and expressly ratified all professionalsteps previously taken by him in that capacity. In the circumstances ofthis case, I take the view that the earlier defects of which the defendanthad belatedly complained were cured. Different considerations would nodoubt have arisen if Mr. Wilson (junior) had purported to act as the plain-tiff’s proctor in substitution for and to the exclusion of the proctpr whoseproxy stood unrevoked at the relevant date, but in the present case thereis no room for applying the rule that a principal cannot by subsequentratification give validity to an act which was at its inception unlawfulor void.,
In my opinion the defendant’s appeal must be dismissed with costs,and I would make order accordingly. .
Gusasekaba J.—-I agree.
(1886) 7 S. G.G. 42.
Appeal dismissed.