de Mel v. Gunasekera.
1939Present: de Kretser and Wijeyewardene JJ.
DE MEL et al. v. GUNASEKERA et al.
277—D. C. Kalutara, 20,599.
Advocate—Appearance on dote of trial—Application for postponement—Withdrawal of Counsel on refusal—Proceedings inter partes.
On the day fixed for trial an Advocate entered an appearance for thedefendants and applied for a postponement, which was refused.
The Advocate thereupon withdrew from the case, intimating that hehad been instructed only to apply for a postponement.
Held, that the proceedings were inter partes.
* (1891) 1 Cey. Law Rep. 90.* (1930) 32 N. L. R. 45.
3 (1935) 4 Cey. Lau> Weekly 103.
. N. B 17627 (5/52).
DE KRETSER J.—de Mel v. Gunasekera.
^ PPEAL from an order of the District Judge of Kalutara.
Colvin R. de Silva and Barr Kumarakulasingham, for defendants,appellants.
N. M. de Silva, for first to fourth plaintiffs, respondents. •
Cur. adv. vult.
July 3, 1939. de Kretser J.—
This was an action for recovery of land. Certain of the defendantsfiled answer through a Proctor, and a date was fixed for trial. On thatdate one of them, at least, attended Court, and an Advocate entered anappearance on behalf of all of them. He asked for a postponement on theground that the defendants had been prevented by a Vidane Arachchifrom leaving their homes and so could not get ready for trial, and hecalled one of the defendants ; after which the Court called the VidaneArachchi and thereafter refused a postponement. There is nothing onthe record to show which of the parties appeared, and whether therespective Proctors appeared or not, but the appeal has been urgedon the assumption that only the defendants who was called appeared,and that their Proctor did not appear.
It would seem that upon the postponement being refused the Advocatewithdrew, intimating that he had beeri instructed only to apply for apostponement and had no further instructions. Apparently the Court ac-quiesced in his withdrawing, but again there is nothing to show that itapproved of his doing so. The learned Judge thereupon remarked thatthe case was really proceeding ex parte, and after recording the evidenceof one of the plaintiffs he entered judgment for the plaintiffs.
It is contended on approval that there was no appearance on the part ofthe defaulting defendants, and that the Court should in fact have pro-ceeded ex parte and have entered a decree nisi ; and that even beforedoing so it should have framed issues. I have only to add that thedefendants claimed title by prescriptive possession, and that plaintiffs hada long chain of title and a decree obtained many years previously by apredecessor in title against, it was alleged, defendants’ predecessors in title.
The main point argued was that the appearance of Counsel was not anappearance on behalf of the defendants-appellants, and that the decisionsof this Court applied to a Proctor applying for a postponement and thenwithdrawing, and not to the circumstances of the present case. If Counsel’sappearance amounted to an appearance by them, then the Judge was correctin proceeding as if the trial was inter partes.
It is conceded that if a defendant applied for a postponement and thenwithdrew, the trial would proceed inter partes. It is also conceded that ifa Proctor acted similarly the proceeding would be int&r partes, but it isargued that Counsel having appeared for a limited purpose, his appearancewas for that purpose and no other, i.e., a party may not limit his appearance,nor may a Proctor, but they may both do so if they appear by an Advocate.This seems a startling proposition, and its only foundation is that a Proctor
DE KRETSER J.—de Mel v. Gunasekera.
holds a proxy from his client and therefore represents him, but a Counseldoes not represent him ; yet it is conceded that if he did appear for a part ofthe trial and then withdrew, the trial would be considered one inter partes.
In the large majority of cases an application for postponement wouldbe made by the Proctor, and so most of our decided cases deal with suchapplications by Proctors, and there being a tendency to give relief wherethe Proctor’s appearance happened to be ‘ casual ’, a Bench of fourJudges (Andiappa Chettiar v. Sanmugam Chettiar') decided that, if aProctor happened to be present when the case was taken up for trial, heshould be regarded as appearing for his clients unless he expressly statedthat he did not. This case left untouched the decisions which held thatwhen the Proctor did move and applied for a postponement, that was anappearance by-his clients for all purposes.
It seems to me that, apart from authority to which I shall refer, theargument proceeds on a misconception. It is difficult to get any authorityfrom the Indian Courts for the reason that in that country they use theterm “ pleader ”, and pleader includes an Advocate ; and that a pleaderrepresents his client is made clear by his being expressly referred to in thesection corresponding to section 24 of our Code.
In India, however, a pleader is appointed in writing and resembles aProctor in Ceylon rather than an Advocate. In that country Barristersstand on a different footing.
In Rampertab Mull and another v. Jakeeram Agurwallah and others 3the Court held that where Counsel applied for a postponement and on thisbeing refused left the Court not having been further instructed, there wasan appearance by the party and the proceedings were inter partes. Counselin this case was not a “ pleader ”.
In section 24 of our Code, a party is allowed to appear by his Proctor,and the section goes on to say that “ an Advocate, instructed by a Proctorfor this purpose, represents the Proctor in Court ”. That does not limithis appearance, nor do the words “ instructed for this purpose ” limit it.Those words only mean that a party is not to be bound by some actof an Advocate appearing without instructions, or appearing improperlywith instructions obtained direct from the party. If then a Proctorrepresents a party by virtue of his appointment, and especially where hisappointment authorizes him to retain an Advocate—as it does in this case—the Advocate represents the Proctor. That means that his appearance isthe appearance of the Proctor, and we are in exactly the same positionas a Proctor who attempts to limit the nature of his appearance.
The question must not be confused with the responsibility of the Advocate,for it may be that his contract is with the Proctor, and having fulfilledhis contract he is under no further obligation. The question is whetherthere has been an appearance by the party, and I cannot doubt for a momentthat there has been. The Advocate’s appearance for a limited purpose wasthe Proctor’s appearance for a limited purpose, and that again was theappearance of the party for a limited purpose.
Turning to Chapter 12 which deals with default of appearance, we firstget section 84 which refers to the defendant appearing in person or by
1 I. L. R. 23 Cal. 991.
* 33 X. L. R. 217.
DE KRETSER J.—de Mel v. Gunasekera.
Proctor. It cannot be denied that the Proctor has a right to appear by anAdvocate. Section 85 deals with the default on the part of the defendant;it will not be denied that here again he may appear by an Advocateinstructed by his Proctor. There is no reference in either section to limitedauthority, and all that both sections deal with is appearance and noappearance. . If a party appears, even to move for a postponement, he hasappeared.
Section 72 has an explanatory note to the effect that “ a party appearsin Court when he is there present in person to conduct his case or isrepresented by a Proctor or other duly authorised person ”. It will benoted that the Proctor represents the party, and exactly the same wordis used in section 24 in describing the position of an Advocate: he“ represents ” the Proctor. An Advocate would also be a duly authorizedperson. It is a case where the maxim “ Qui facit per alium facit per se ”applies. If the argument is pressed to its logical conclusion, it would meanthat if a trial took more than a day, Counsel may not appear on the secondday on the ground of not being obliged to do so, and if Proctor and clientskeep away the case will go partly inter partes and partly ex parte. Thatis a position which cannot be tolerated, nor would it be conceivable wherea proper sense of responsibility exists.
To look at it from another point of view, on a trial proceeding ex partea decree nisi is entered and the defendants have an opportunity of curingtheir default by showing that they had reasonable grounds for not appear-ing. Now, when a postponement is applied for on specified grounds andis refused, what other reasonable grounds would such a defendant have ?His only ground would have to be that the Court should have granted hisapplication, and that would be inviting the Court, perhaps presided overby another Judge, to reconsider its previous order, and this a Court cannotdo. And this position is the same whether the application is made by aparty or by a Proctor or by an Advocate. , There is therefore no reasonwhy any distinction should be drawn between an appearance by a Proctorand one by an Advocate. The truth is that there is no such thing as alimited appearance.
There are two local cases dealing with similar applications by Advocates.In Woutersz v. Caruppen Chetty1 Counsel applied for a postponement onthe ground of his client’s illness and “ left the matter in the hands of theCourt ”. On the application being refused he withdrew. This Court heldthat Counsel had no right to withdraw without the consent of the Judge,but that it was his duty as an Advocate to go on with the case as far as hecould. The Court had given judgment for the defendant and this Courtrefused to interfere. It does not seem- to have been contended that hisobligation was limited or that a decree nisi should have been entered.
In Volume 23 page 397 of Halsbury’s Lams of England will be found thisstatement: —
“ If Counsel is instructed, he ought to have control over the caseand conduct it throughout. His authority may be limited by theclient, but only to a certain extent; and it is not becoming for himto accept a brief limiting the ordinary authority of Counsel in 'this
> 3 Bat. 197.
de Silva v. Hamoukpoia.
respect, or to take a subordinate position in the conduct of a case,or to share it with the client, even if the litigant is himself a barrister ;the litigant must elect either to conduct the case entirely in person orto entrust the case entirely to his Counsel. If a litigant instructsCounsel, the litigant cannot himself be heard, unless he revokes hisCounsel’s authority and himself assumes the conduct of the case,and when a case is fairly before the Court and Counsel is seised of it,his authority cannot be revoked.”
In the case of The Public Trustee v. Karunaratne ‘ the application wasmade by an advocate, and perhaps this appeared in the record, but thejudgment of this Court which treated the decree as one entered interpartes makes no specific mention of this fact.
There remains the question whether the Judge should have framedissues. It is not clear whether the first defendant followed his Advocateout of Court or remained. The Judge’s note rather suggests he left,for the Judge’s note means that though in law the case was proceedinginter partes it was in fact ex parte. The issues in the case were simpleand apparent and could not but have been present to the Judge’s mind,and I do not think the omission to frame issues affects the case. In anyevent section 36 of the Courts Ordinance prevents us from interferingon a point like this where substantial justice has been done, and I thinkit has in this case.-
I dismiss the appeal with costs.
Wijeyewardene J.—I agree.
’ Appeal dismissed.