1955Present: Gratiaen, J., and H. N. G. Fernando, J.'
ICALAlVAXE DHAMMADASSI THERO, Petitioner, andMA'WEDLA DHA3DIAYISUDDHI THERO ct ah, Respondents
Afiplicalion for Iteslitulio in Integrum or in the alternative for Revisionin S. C. 3IS of 1052, D. C. Colombo 5, 517
Appeal—Ex parto hearing—Right of respondent to object to decree—Civil Procedure
Code, ss. 2S, 77J.
An appeal was heard ex parte in the absence of the respondent, anti judgmentwas given against him. It was subsequently shown that tho respondent’sProctor hnd, prior to the disposal of the appeal, informed tho respondent thatho had duly retained Counsel to represent him although, in fact, he had not doneso. l-'urther, during the pendency of t ho appeal, t ho Proctor had been suspendedfrom the practico of his profession for a certain period.
Held, that there was “ sufficient cause ” within the meaning of section 771of tho Civil Procedure Code to re-hcar tho appeal.
-A^PPIjICATIOX to have a judgment and decree of the Supreme Courtin certain civil proceedings vacated.
II. W. Jayenardene, Q-C., with Day a Perera, for the plaintiff-petitioner.
11. V. Perera, Q.C., with II. A. Koallegoda, for the defendant-respondents.
Cur. adv. vult.
Juno 7, 1955. Gratiakx, J.—
This is an application to have a judgment and decree of this Courtdated 19th July, 1954, in civil proceedings vacated. Arguments wereaddressed to us on behalf of both parties on the assumption that thefacts set out in tho petitioner’s affidavit were substantially correct.X shall summarise these facts in so far as they are necessary for thepurposes of our decision.
Tho petitioner had sued the respondents in tho District Court ofColombo for a declaration that lie was the lawful incumbent of Raja-pushparama Viliara, situated at Galkissa. After a contested trial,judgment was entered in his favour as prayed for with costs on 19thSeptember, 1951. The respondents then appealed to this Court and theajipeal was heard oil 12th and 13th July, 1954. The case for the- res-pondents was fully argued by Counsel appearing on their behalf, butthe petitioner himself was absent and was not represented by Counsel.Having reserved judgment, this Court mado order on 19th July, 1954,allowing tho appeal and dismissing tho petitioner's action with costsin both Courts.
Tho petitioner lias now explained the circumstances in which he wasnot represented at the hearing of the appeal. In the loner Court lie
Jiacl granted tho partners of Alcssrs. Percra and Senaravno, Proctors,a joint proxy appointing thorn to respresent him at the trial and also intliis Court, In October and ATovomber, 1952, he had, at Air. Sonaratne’srequest, paid sums aggregating Rs. 735 which were stated to be requiredas foes for a senior Counsel and a junior Counsel who had been retainedby Air. Scnaratnc to argue tho petitioner’s case on appeal. Air. Senaratnelater informed the petitioner that the advocates concerned had beenduly briefed on his behalf, and tho petitioner thereafter assumed thatho would be represented at tho argument when the appeal came up forhearing.
After the appeal had been disposed of, it was brought to tho petitioner’snotice that Counsel had not appeared for him at the argument becausetheir fees had not been paid by Air. Senaratne or Air. Senaratne’s firm.Ho also discovered for the first time that Air. Senaratno had, in termsof an order of this Court, dated 27th October, 1953, J^een suspended fromtho practico of his profession for a period of three 3-ears on tho groundof misconduct. I11 the result, tiie jiariners of Alessrs. Perera and Sena-ratne had become incapable of acting jointly for the petitioner by virtueof the proxy previously granted to them.
Air. Ja*ewardene’s main argument was that failure to comply, eveninadvertenth', with the provisions of Section 2S of the Civil ProcedureCode had the cfFecfc of rendering the judgment of this Court a nullity.The full implications of this Section cannot be determined without anexamination of questions of much nicety, but for the purposes of thisapplication it is sufficient, I think, to base our jurisdiction to order are-hearing of the appeal on the provisions of Section 771 of the Code.The petitioner has satisfactorily explained that he was prevented by“ sufficient cause ” from .appearing either personally or by Counsel atthe hearing of tho appeal. Aloreover, the dispute as to the incumbencywas certainly of sufficient gravit}- to make it desirable that the petitionershould not be denied an opportunity of supporting the judgment of thelower Court in his favour. I would accordingly vacate the judgmentof this Court dated 19th July, 1954, and direct that the appeal he reheardbefore a Bench of which m3- brother and I (who heard the original appeal)are not members. In 1113- ojiinion, the costs of tliis application shouldbe costs in tho cause.
There is another matter to which it is my duty to refer before I conclude.The sorious allegations in the petitioner’s affidavit concerning Air. 0. E. deS. Senaratne’s conduct clearl}* calls for an investigation, and the questionprominently arises whether he is a fit and proper person to be permittedto resume his practice in an honourable profession after his period ofsuspension comes to an end. I would therefore direct that copies oftho petitioner’s petition and affidavit dated 21st September, 1954, andof all supporting documents annexed thereto, be forwarded by thoRegistrar to tho Attorney-General.and to the Incorporated Law Societyso as to enable them to take such action as they may consider appropriate.
H; N. G. Ferxasdo; J.—I agree.
Appeal to be re-heard.
KALAWANE DHAMMADASSI THERO , Petitioner, and MAWELLA DHAMMAVISUDDHI THERO et al
1955Present: Gratiaen, J., and H. N. G. Fernando, J.'