K. D. DE SILVA, J.—Vettivelu v. Wijeyeratne
1956 Present:K. D. de Silva, J., and Sansoni, 3.N.VETTIVELU, Petitioner, and B. A. WIJEYERATNE, Respondent
S. C. 175—Application in revision in D. C. Vavuniya, 1,281
Crown Counsel—Bight of audience in Courts—Competency to represent parties inprivate litigation—Evidence Ordinanoe, s. 57 (12)—Civil Procedure Code,88. 461, 463—Courts Ordinance, ss. 16, 59.
A Crown Counsel, being an Advocate, is not unqualified to appear in Courtsand represent parties in private litigation. Accordingly, the fact that theAttorney-General has not made an application under section 463 of the CivilProcedure Code does not disentitle him from assigning a Crown Counsel toappear for a defendant who is a public officer.
j^^-PPLICATION to revise an order of the District Court, Vavuniyav
M.Tiruchelvam, Deputy Solicitor-General, with J. R. M. Perera,Crown Counsel, for the petitioner.
No appearance for the respondent.
Cur. adv. vult.
July 11, 1956. de Suva, J.—
The petitioner who is the village headman of Omantai is the defendantin D. C. Vavuniya Case No. 1281. The plaintiff in that case who is therespondent to this application sued the defendant to recover a sum ofRs. 2,000 as damages alleging that on July 9, 1955, the defendant haddemolished his house and caused damage to his furniture. In his answerthe defendant admitted that he had demolished the house in question onthe orders of the Government Agent, Vavuniya, as it was an unauthorisedstructure built on a vacant Crown land but denied that he had causeddamage to any furniture. He further averred that the plaintiff could notmaintain the action because (a) the plaint did not disclose a cause of actionagainst him and (b) due notice of the action had not been given to him interms of section 461 of the Civil Procedure Code. When the case cameup for trial on 28.4.56 Mr. H. L. de Silva, Crown Counsel, movedto appear for the defendant instructed by Mr. Swaminather, proctor.Mr. Amirthalingam, the proctor for plaintiff objected to the appearanceof Mr. de Silva on the ground that no application had been made by theAttorney-General to undertake the defence in terms of section 463 of theCivil Procedure Code. The learned District Judge upheld this objection.
K. D. DE SILVA, J.— Vettivelu v. Wyeyeratne
Thereupon Mr. de Silva moved to appear for the defendant in his capacityas an advocate of the Supreme Court. The learned District Judge thenmade the following order:—
“ I have already been informed by Mr. de Silva that he was appearingas Crown Counsel in this case. The 2nd application to appear merelyas advocate of the Supreme Court is in my opinion irregular in viewof the earlier application. I therefore disallow the 2nd applicationalso. ”
The defendant now applies to this Court in Revision to set aside the ordersmade by the District Judge. The orders are clearly irregular and illegal.Section 16 of the Courts Ordinance (Cap. 6) empowers the Supreme Courtto admit and enrol a person as an advocate of that Court provided certainconditions are satisfied. Section 59 (Cap. 6) provides that an advocatewho is entitled to practise in the Supreme Court is also entitled to practisein any District Court, Court of Requests or Magistrate’s Court. ThatMr. de Silva is an advocate of this Court is not denied. According tosection 57 sub-section 12 of the Evidence Ordinance (Cap. 11) the Courtis bound to take judicial notice of the name of the advocate authorisedto appear before it. An advocate has the right of audience in any Courtin which he has a right to appear. That right is in no way affected byreason of the fact that he happens to be an officer of the Attorney-General’sDepartment. In Perera v. White1 Bonser C. J. stated:—
"It is said that the Acting Attorney-General thought it advisablenot to act for either party in view of his being a Law Officer of theCrown. I do not quite see how his being a Law Officer of the Crownis an impediment to his appearing in this case. ”
It is true that Law Officers and Crown Counsel do not generally representparties in private litigation. But that is not for the reason that they are-unqualified to appear in those cases but because of the conditions of servicebinding on them. The right of an advocate to appear in our Courtsand being heard is an unqualified one. The learned District Judgewas wrong in preventing Mr. de Silva, a qualified advocate, from exer-cising his right to appear in Court. The fact that the Attorney Generalhad not made an application under section 463 of the Civil ProcedureCode does not disentitle him from assigning a Crown Counsel to appearfor the defendant who is a public officer. The learned Deputy Solicitor-General stated from the Bar that when public officers are sued in tort theCrown does not take up their defence but the Attorney-General instructsa Crown Counsel to appear for them. No objection can be taken to thatpractice. I therefore allow the application and set aside both the ordersmade by the District Judge. The respondent will pay the costs of thisapplication to the petitioner.
Sansoni, J.—I agree.
1 (1900) 1N. L. B. 209.
N. VETTIVELU, Petitioner, and B. A. WIJEYERATNE, Respondent