51 SDfj^ETAMB^Tv Q^&ajendra v. ParakramaS'Ltd.
——-■*.. – * r'»t
Present: Slntietainby, J., and Herat, J.
M.RAJEi'fDR A (Permanent Secretary to the Ministry of Transport andWorks) and another, Appellants, and PAR A KR AMAS I/n>.,
S. C. 95 (Inly.) of I960—D. C. Colombo, 50767/M
Summary procedure—Interlocutory order—Right oj respondent to appear by Proctor—Statement of objections in writing—Permissibility—Civil Procedure Code,ss. 24, 143, 377 (b), 383, 384.
When, in an application of summary procedure, the respondent is noticed toappear under section 377 (6) of the Civil Procedure Code, there is no objection toa Proctor appearing on his behalf and obtaining, on good cause shown, a dateon which to file or state his objections.
Kanagasabai v. Kirupamoorthy (1959) 62 N. I». R. 54, considered.
PPEAJL from a judgment of the District Court, Colombo.
A. C. AUes, Deputy Solicitor-General, with H. L. de SilvaCrownCounsel, for the Respondents-Appellants.
G. Thiagalingam, Q.C., with K. Jayasekera, for the Petitioner-Respondent.
Cur. adv. vult.
February 19, 1962. Sinnetamby, J.—
In this case, the petitioner-respondent filed in the District Court ofColombo papers under Section 696 of the Civil Procedure Code prayingthat an award made by an arbitrator in a dispute between the respondentcompany and the appellants, which had been referred to arbitrationwithout the intervention of the court, be filed in court. Althoughoriginally, the procedure adopted was not summary in terms of Section697, it was subsequently so altered and an interlocutor} order was interms of Section 377 of the Code made appointing the 28th of October,1960, as the date for a determination of the matter. This order was madeon 1st September, 1960, but was served by the summons being left withthe chief clerk of the Attorney-General’s department on 13th October,1960. On 28th October, 1960, both respondents-appellants, namely theAttorney-General and the Permanent Secretary to the Ministry ofTransport and Works, were absent but the Crown proctor Mr. Dimbulaneappeared, filed a proxy on behalf of both, and applied for a date to fileobjections. The petitioner who was represented by Counsel objected andpointed out that “ the respondents on whom the interlocutory order wasserved were absent and that there is no provision under the Code for adate to be granted to enable the respondents to file objections ”. Insupport of this proposition he cited the case of Kanagasabai v. Kirupa-moorthy 1. The learned trial judge apparently felt himself bound by the
1 (1959) 62 N. L. R. 54.
3B 2068- 2,035 (6/62)
SINNETAMBTT, J.—Jtajendra v. JParahramas Ltd,.
observations made in the case cited and called upon Mr. Dimbulane tostate what his objections were and to state whether he could lead any oralor documentary evidence. It would appear that at this stage Counsel forthe petitioner said that the petitioner had not been given notice of anydocuments upon which the respondents relied. He obviously wasreferring to the provisions of Section 384 which precludes a party noticedfrom reading, without leave of court, documents in support of his objec-tions unless 48 hours notice has been given to the other side. Theproceedings of 28th October, 1960, make it clear that the learned trialjudge felt himself obliged to follow the procedure laid down in Kanagasabaiv. Kirupamoorthy (supra) and to make the order absolute in the absence ofthe respondents in person. Mr. Thiagalingam, who had appeared for thepetitioner-respondent in the lower court and also represented him in theappeal, contended at first that Section 383 requires the respondents-appellants to appear in person and that it is not open for a proctor toapply on his behalf for a date to state his objections. He, further, con-tended that the objections should be stated orally. It is, therefore,necessary to consider the legal position in regard to respondents who areunable to appear on the date fixed to show cause against the granting ofthe prayer of the petition. Section 384 states that on that day if thepetitioner and the respondent appear “ the proceedings on the matter ofthe petition shall commence by the respondent in person or by his proctorstating his objections, if any, to the petitioner’s application It willthus appear that the section itself permits a respondent’s proctor to stateobjections on his behalf. Objections need not necessarily be stated orally.I can see no reason why they should not be stated in writing. Indeed, itis more desirable that objections should be in writing as in that case it canbe stated with greater clarity and precision and would leave the Petitionerin no doubt as to the grounds on which the Respondent opposes thepetitioner’s application. The only question which requires consideration,therefore, is whether it is necessary that on the date mentioned in theorder made under Section 377 (6) the respondent should be present in person.In Kanagasabai v. Kirupamoorthy (supra) My Lord the Chief Justice tookthe view that the respondent should appear in person when he is sonoticed. With great respect I find myself unable to agree with this view.My Lord came to that conclusion after considering the terms of Section383 only. Section 383 declares what the consequences would be if on thedate fixed the petitioner appears and “ the respondent does not appear ”,and the learned Chief Justice construed the word “ appear ” to meanappear in person. In the course of his judgment no reference is madewhatever to Section 24 which expressly authorises appearance by aproctor and one can conceive of cases in which it 'will be impossible forthe party noticed to appear in person : he, for instance, may be too ill.In such a case we can see no objection whatever to a proctor appearingon his behalf and either stating or asking for a date to file or state hisobjections. The implications of provisions of Section 384 whichexpressly authorises a party noticed to state his objections by hisproctor were not considered. Furthermore, Section 24 requires personal
SINISTETAMBY, J.—Rajendra v. Parakramas'tttd.
appearance only when by law personal appearance is expressly required andSection 383 does not expressly require personal appearance. Later in thecourse of argument Mr. Thiagalingaru was prepared to concede that anappearance under Section 383 may be made through a proctor but hestated that the proctor should state his objections immediately. Eventhis he later modified by stating that on good cause shown a proctor mayobtain a date to state his client’s objections. Even though no expresspower is given to the Court under Sections 383 and 384 to grant post-ponements, the Court, in my view, has an inherent power to do so on goodcause shown even if the view is taken that Section 143 of the Civil Pro-cedure Code has no application to proceedings under Chapter 24. Perhaps,it would be appropriate, in this connection, to refer to Chapter 53 of theCode. Although there is no express provision under that chapter for anadjournment of the date within which a party defendant is required toobtain leave to appear and defend, this court has held that in appropriatecases the court has the power to grant an extension of time within whichsuch application may be made. I am, therefore, of the view that it isalways open to a party noticed under Section 377 (b) of the Code insummary proceedings to appear by proctor and on good cause shown toobtain a date on which to file or state his objections.
In the present case, the court does not appear to have asked the Crownproctor what the grounds are on which he desired a date. Apparently,the learned trial judge thought it was unnecessary in view of the rulingin Kcinagasabai v. Kirwpamoorthy (supra). It must be remembered thatthe point which arose for decision in that case was not whether a personnoticed can appear by proctor on the returnable date but whether, wherea proctor who had been instructed by his client to appear failed to do sothrough oversight, the client is on that ground entitled to reopen thematter under the provisions of section 389 of the Code. The observations,therefore, of My Lord the Chief Justice were obiter and the matter doesnot appear to have been fully argued before the court. Mr. Thiagalingamasked that we send the case back so that the court may inquire into thevalidity of the grounds on vrhich Mr. Dimbulane asked for a date. We,however, do not think that any useful purpose will be served by doing so,particularly, in view of the long delay already involved.
We would, accordingly, set aside the order of the learned District Judgeand send the case back to the District Court with directions that theDistrict Judge do, with notice to both sides, appoint a day on which therespondents-appellants will appear in court and state their objections tothe petitioner-respondent’s application. Thereafter, the Court will pro-ceed to deal with the matter in the manner provided in Section 384 et seq.of the Civil Procedure Code. The petitioner-respondent will be entitledto the costs of 28th October, 1960, but the respondent-appellants will beentitled to the costs of the appeal.
Herat, J.—I agree.
Order set aside.
M. RAJENDRA (Permanent Secretary to the Ministry of Transport and Works) and ano