MAARTENSZ J.—Silva v. Cumaratunga.
1938PresentMaartensz and Moseley- JJ.
SILVA v. CUMARATUNGA350—D. C. Colombo, 1,334.
Appeal—Petition of appeal not signed by proctor on record—Fatal irregularity—Civil Procedure Code, s. 755.
A petition of appeal must be signed by the proctor, whose proxy is onthe record at the date on which the petition is filed.
Held, further, that where the petition is not so signed the appeal shouldbe rejected and the Supreme Court had no power to give relief.
Wace v. Angage Helena Hami (4 S. C. C. 48) followed; Fernando v.Perera et al. (1 Cur. L. R. 51) not followed.
^^PPEAL from a judgment of the District Judge of Colombo.
N. E. Weerasooria, for plaintiff, appellant.
H. V. Perera, K.C. (with him M. C. Abeywardene), for defendant,respondent.
April 11, 1938. Maartensz J.—
A preliminary objection was taken to our hearing this appeal on theground that the petition of appeal is not signed by the proctor who wasproctor on the record on the day the appeal was filed, November 12, 1937.
. The facts are as follows :—The plaintiff-appellant’s proctor, Mr. M. A.Van Rooyen, by a motion dated November 11, 1937, moved to revokethe proxy granted to him by the plaintiff. The plaintiff’s consent to therevocation is endorsed on the motion. I may say incidentally that it wasthe plaintiff, who should have moved for revocation with the consent ofthe proctor.
The motion was according to the date stamped oh it received by theDistrict Court on November 13, 1937. It was brought oh the roll andallowed by the Court on November 15, 1937.
140MAARTENSZ J.—Silva v. Cumaratunga.
The petition of appeal is undoubtedly not signed by the proctor whowas on the record on November 12, 1937. The relevant section of theCivil Procedure Code ^section 755) enacts that “ all petitions of appealshall be drawn and signed by some advocate or proctor . . . . ”
The first question for decision is whether the words “ some ….proctor ” are restricted to the proctor whose proxy was on the record whenthe appeal was filed.
It was contended that the case of Assauw v. Billimoria' was a decisionto that effect by which we w.ere bound as it was the decision of threeJudges. I do not think it is. Burnside C.J., it is true, said in the courseof his judgment, “Now, we have held that the proctor who signs thepetition must be the proctor on the record ..” but he cited no
authority and the statement was obiter to the question for decision in thatcase which was whether a petition of appeal signed by one proctor foranother who was the proctor on the record complied with the provisionsof section 755 of the Code. It was held it did not.
This question is, however, covered by authority. In the cases of Wacev. Angage Helena Hami * and Romanis Baas v. Ravenna Kader Mohideenand another", it was held under rule 2 of the Rules and Orders of December12, 1843, that the petition of appeal must be signed by the proctor on therecord. The relevant passage in rule 2 is in exactly the same terms asthe passage I have cited from section 755 of the Code and the cases aretherefore authorities applicable to section 755.
Ennis J., in Regindhamy v. Jayasundera' rejected an appeal which wasnot signed by the proctor on the record.
The ratio decidendi in the old cases, with which I respectfully agree,was that this Court cannot recognize two proctors appearing for the sameparty in the same cause. I accordingly hold -that, the petition of appealshould have been signed by the proctor on the record who was Mr.- VanRooyen.
The next question is whether we should dismiss the appeal or give theplaintiff relief if it is in our power to do so.
In the two later cases I have referred to, the appeals were rejected. Inthe case of Fernando v. Perera and others', the Supreme Court remittedthe petition of appeal to the District Court to be signed by the proctor onthe record, but the authority for this procedure is not stated in thejudgment and I do not think it should be followed. Besides in this casethe proxy of the proctor who was the proctor on the record when theappeal was filed has been revoked and he cannot now be asked to signthe petition of appeal.
I am accordingly of opinion that the objection must be upheld and theappeal dismissed with costs.
Moseley J.—I agree.
> (3892) 2 C. L. R. SC.3 1188.3) 4 S. C. C. 61.
? (1881) 4 S. C. C. 48..» (1917) 4 C. W. It. 390.
= (1909) 1 Cur. L. R. 51.
SILVA v. CUMARATUNGA