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Present : Bertram C.J. and De Sarapayo J.
ORR et aJ. v. GUNATILL.EKE et al,
D. <C. Ratnapura, 3,22Sf.
Restitutio in integrum—Settlement—Proctor acting contrary to instruc-tions—Belief given by Supreme Court directed without sending caseto District Judge for investigation into allegations in application.
Where a proctor, acting contrary to the instructions of his*client, consented to certain terms of settlement, the Supreme Courtgranted relief by way of restitutio in integrum.
Hire Supreme Court being satisfied that the proctor acted contraryto instructions gave direct relief without directing the DistrictJudge to investigate the question.
T HE facts appear from' the judgment.
R. L. Pereira, in support.
W. Jayawardene (with him -'Wijemdnne), for the respondents.
January 20, 1922. Bertram C.J.—
This is an application to this Court for restitutio in integrum basedupon the principles laid down in the case of Sinnatamby v. Nalla-tamby.1 The action was for a breach of agreement of a lease/ andthe breach complained of was that the defendants, who were lesseesof a tea garden, had not weeded, pruned, and otherwise maintainedthe tea on the estate in accordance with the agreement. Rs. 2,000damages were claimed, and further Rs. 500 per mensem until theagreement was complied with. A settlement of the action wasarrived at in pursuance Of a letter written by Miss Orr, one of thedefendants. Miss Orr’s intention was this : That the action shouldbe laid aside, that is to say, suspended, and that she should under-take to give up the estate duty weeded and cleaned on the expirationof the lease. Unfortunately, through a mistake of the proctor whowas advising her at Kalutara, where she resided, the date on whichthe estate was to be delivered up was fixed at April 11, 1920;whereas the lease did not expire until April 11, 1921.' This letter wasaddressed to her proctor at Ratnapura, and he proceeded to effecta settlement on the basis of that letter. Had he carefully scrutinizedthe letter, he would have seen from the other expressions which sheused that the date was a mistaken date. But he did not realizethat -fact, and proceeded to a settlement on the basis of the dategiven* But he went further. Miss Orr had spoken of the action
» (1963) 7 N. L. R. 139.
being laid aside. He proceeded (o agree that if the astute were notdelivered up on April 11, 1920, his client was willing to pay thedamages claimed on the plaint. These damages were penal.They involve the payment of Rs. 600 per month. Miss Orr nevercontemplated anything of the kind, and I find it difficult to believethat if she bad contemplated it, she would have consented to it.It is quite true that the point on which she mainly insists has beenthe mistake of date. But it was not so much the mistake of datewhich impelled her to appeal to this Court, -ns the fact that she hadbeen placed under an obligation to pay those very heavy damages.A mistake in procedure was made, inasmuch as she instituted anappeal in the action instead’ of applying to this Court for restitutioin integrum. I need not go into .the question of those proceedings.What we have to decide here is whether she is'entitled to any remedyin the proceedings that are now before us. The law as to thecircumstances under which a Court will set aside a consent judgmententered ^ip by a mistake, where the mistake is unilateral, is dis-cussed in the case of Wilding v. Sanderson 1 and other authoritiesthat may be found in the additional notes to the Annual Practice,1921, pages 1910-11.' I need not, however, discuss – the questionwhether when a settlement is entered into by a proctor in pursuanceof express instructions in writing by his' client, and it is afterwardsdiscovered that the client in drawing up those instructions has madea mistake, a consent judgment so entered can be set aside. It isthe other point in the case which seems to me to be more important.
It is conceded that, if a consent judgment is entered up contraryto the express instructions of the client, that judgment can be setaside. Now, in this case, Miss Orr had clearly defined her instruc-tions. In consenting to the penal damages claimed in the plaint,her proctor, it seems to'me, was going contrary to those expressinstructions, and this, I think, is, a sufficient ground for giving herthe relief prayed for.
Mr. 13. W. .Tayawardene assures that', if the matter is fully investi-gated, the damages which have been spoken of as penal would proveto he much less than those which he would be entitled to claim.That may or may not be the case. All I think that is necessary todecide in this case is that the settlement was contrary to theinstructions of his client. I do not think that inthis case it would benecessary to remit the matter for inquiry to the District Judge.If it had been seriously contended that both parties- contracted onthe supposition that the lease expired on April 11, 1920, that mightbe a mutter for inquiry by the District Judge. But, from theevidence before us, it would hardly seem worth while to investigatethat question. Nor would it be necessary to investigate thequestion whether Miss .Orr did make a mistake about the date. The.learned Judge has already found that as a fact, and, moreover, we
1 (1897) 2 Chan. $34.
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are not deciding the case on that ground. Nor need we directthe learned Judge to investigate the question whether, in consentingto the damages prayed for, the proctor was acting contrary to theinstructions of his client, because we have formed the opinion herethat this was in fact the case. I think, therefore, tl}at we shouldgive direct relief, and should set aside the judgment entered up inthis case, and direct the case to proceed in the ordinary course fromthe point at which the supposed settlement was arrived at. Theapplication in this Court should, in my opinion, be allowed withoutcosts.
Db Sampayo J.—I agree.
ORR et al. v. GUNATILLEKE et al