Jandi v. Pin idi'j'i
1971 Present: H. N. G. Fernando, C.J., Silva, S.P.J.. and
U.W. JANDf and 2 others, Petitioners, and D. S. PIXIDIYA and16 others, Respondents.
S. C. 7J5/GS—Application in Revision in D. C. Hldlara, 5270jP
Legal practitioners—Proctor and client—Rule that negligence of Proctor is in law
negligence of client—Scope—Partition action.
For a long period a court officer (the Interpreter Mudoliyar) of the DistrictCourt of Matara customarily gave information, in advance of the roll, to Proctorsns to tho dates fixed for steps in an action. The specified date was seldomaltered by the Judge when the case was subsequently called before him at thoroll. Tho three parties in the present application in revision were added asparties in a partition action when their Proctor filed a proxy on behalf of them.The court olficcr gave 7th April 196S as the date when their statements of claimshould bo presented. In this instance, however, tho dato was subsequentlyaltered b3' the Judge to 2nd February 19GS. In consequcnco of this alterationthe trial was fixed for 1st March 1 90S and Interlocutory decree was signed bythe Judge on 23rd March 19CS. Tho Proctor for tho petitioners was not awareof tho alteration of dato and tho subsequent proceedings. There was alsoanother circumstance which might lend support to the criticism that tho conductof practitioners and court officers deprived tho petitioners of their right to bobeard in the partition action.
Held, by Fernando, C.J., and Silva, S.P.J. (Weeramantry, J., dissenting),that, although tho general rule is that tho client must suffer for his proctor’snegligence in consequence of which some necessary step is not taken in anaction, the petitioners in the present application in revision should bo grantedrelief conditionally.
•Per Fernando, C.J.—“ Practitioners are warned that this Court, havingnow condemned an improper practice, will not in future be inclined to grantrelief when practitioners fail to carry out their responsibilities.”
-A.PPJLICATJLON to revise an order of the District Court, Matara.
It. P. Goonctillche, with B. A. R. Candappa, for the 1st, 2nd and3rd intervenient-petitioners.
H. W. Jayeicardene, Q.C., with W. D. Gunasehera and G. HI. S.Samcrau-eera, for the plaint iff-respondent.
S. Amera-sintjhe, with HI. D. K. Kulalunga, for the 4tl), 6th,7th-10th, 16th and 17th defendants-respondcuts.
Cur. adv. mill.
H. N. G. FERKAIs'DO, C.J.Tandi v. Pinidiya
June 20, 1971. H. N. G. Fsr>t.axdo, C.J.—
This was an action for partition in the District Court of Matara.On 11th December 1967 a Proctor filed a proxy on behalf of the threepetitioners in the present application. They were then added as parties,and their proctor informed them that their statements of claim weredue to be filed on 7th April 196S. The proctor also informed them thathe would be unable to appear for them in the action and handed to tliema form for the revocation of his proxj', but this was not then signed bythe petitioners.
On 25th March 196S, the petitioners came to the same Proctor andstated that they wished him to appear for them ; they also stated thatthe form for the revocation of the proxy had been misplaced. TheProctor thereupon inspected the record of the action and found thatthe case had been called on 2nd February 19CS, and that the DistrictJudge had then made a minute “statements not filed ” and fixed thetrial for 1st March 196S. On tin's date of trial evidence had beenrecorded and judgment entered. Furthermore on 23rd March 19CS• the Interlocutory decree had been signed by the District Judge.
The petitioners thereafter revoked the original proxy and .applied tothe District Court to set aside the judgment and Jntcrlocutor- dcerce,in order that their statements of claims might be entertained andproceedings taken afresh. Upon the refusal by the District Judgeof that application, the petitioners applied to this Court in revision.
The proctor who had originally been retained by the petitioners gaveevidence at the Inquiry in the District Court. That evidence which thelearned Judge accepted as correct is summarised as follows :—
“ The evidence of Mr. Wijetunga shows that there lias been apractice in this Court.for lawyers to file their papers, including state-ments or proxies, before the cases arc called in Court on (lie roll.These documents are handed to the Interpreter Mudaliva r whothereupon minutes them. Where a proxy is filed and a date isrequired for the filing of a statement the Mudaliyar gives the datetaking into consideration the normal dates in the trial roll. It wouldappear that on 11.12.67 Mr. Wijetunga had tendered the proxy ofthese intervenients and had been given the date for filing statementas 7.4.6S. It is clear that this date lias subsequently been alteredby the Judge to 2.2.GS. Mr. Wijetunga states that he was unawareof this alteration and he states that alterations of this nature areseldom made l>3r Court.”
Wc were in this connection referred to other records of actions whichwere at the relevant time proceeding in the District Court of Matara.
It is undoubtedly correct that when the Court has to fix a date for somestep in an action, some officer of the Court enters a minute in the journaland specifies in the minute the date for the step. At that stage the officer
If. X. G. FERXAXDO, C.J.—Jczndi v. PinitUya
furnishes to the Proctor that specified date. For a long period apparently,it had been customary for the Judge fo sign the minute thus submittedwithout changing the date specified bj' the officer.
At the same time, we hare noted that during 1967 the then DistrictJudge of Matara had occasionally altered the date suggested in the draftminute, and fixed for the requisite step a date earlier than that suggestedin the draft minute. This was certainly a proper exercise of the functionsof the District Judge to regulate the proceedings in his Court. But theProctor who appeared original^' for the petitioners, perhaps relying onhis very long experience, had not become aware that the Judge didsometimes alter a suggested date.
I must observe with regret that the practice of proctors, to note datesmentioned by some officer of the Court, instead of noting the dates actuallyfixed by the Judge, involves a neglect of the interests of their clients.A proctor being the agent of his client has a duty to be present in Courtwhenever any order affecting his client's interests is due to be made bythe Judge ; at the least, he must ensure that his clerk or some otherproctor performs that duty on his behalf. Had this proper course beenfollowed, the proctor in this case would undoubtedly have become awarethat the Judge fixed 2nd .February 196S for the filing of his client’sstatement of claims.
In cases such as Fakir Moliideen v. Mohamadu Casim1 and inScJiarenguivel v. Orr- this Court has ruled that when there is negligenceon the part of a proctor, in consequence of which some necessary step isnot taken in an action, the client must suffer for his proctor’snegligence. The obvious ground for this ruling is that because a proctor isthe recognized agent of his client, the fault of the agent has to beattributed to the client.
The true justification for this principle does not however appear to bewell understood by practitioners. It is that under the common law aclient has a right of action against his proctor for damages which he maysustain as a result of the negligence of the proctor.
If the rulings to which I have referred are strictly applied in the presentcase, the present application of the petitioners will have to be dismissed.Nevertheless I find it possible to distinguish the present case from othersin which quest ions of this nature have been decided. If for a long periodofficers of the District Court have customarily given information toproctors as to the dates fixed for steps in an action, a proctor may perhapshave some excuse for thinking that the information thus furnished iscorrect. If Court officers lent themselves to this improper practice, itseems to me that they had a duty to inform the proctors when on anyoccasion a date so furnished became altered by order of the Judge. Thedetriment to the interest of the petitioners may have been avoided if theInterpreter Mudaliyar had, as I trunk heshould, corrected the informationwhich he had previously furnished.
1 (1900) 4 N. L. R. 299.
(1926) 28 N. L. B. 30%.
WEEKAMAN'TRY, J.—Jandi v. Pinidiya
I note also that the reason why the proctor for the petitioners desiredto cancel the proxy given to him by the petitioners was that anotherproctor was personally interested in the Partition action. There arethus in this ease circumstances which might lend support to the criticismthat the conduct of practitioners and Court officers has deprived thepetitioners of their right to be heard in the Partition action.
Upon these considerations, I feel able to apply in this instance theprinciple that “justice must not only be done but must also appear tobe done. ” But practitioners are warned that this Court, having nowcondemned an improper practice, will not in future be inclined to grantrelief when practitioners fail to carry out their responsibilities.
For these reasons I am of opinion that the powers in revision of thisCourt may properly be exercised in this case, upon compliance by thepetitioners with the condition set out below.
If the petitioners deposit in this Court a sum of Bs. 500 as costs on orbefore 1st September 1971, the Interlocutory and final decree enteredin the District Court will be set- aside, and the case remitted to the DistrictCourt to entertain the statements of claim of the petitioners and to takeproceedings afresh. Of the sum so deposited, Rs. 250 will be paid out tothe plaintiff as costs of this application, and Rs. 250 equally to the4th, 6th, 7th-10th, lGth and 17th defendants as their costs of thisapplication. The petitioners will also be liable to pa' the taxed costs ofthe previous date of trial in the District Court.
I have no doubt that the proctor who was originally retained by thepetitioners will consider whether he should assist the petitioners to paythese costs.
If the sum of Rs. 500 is not deposited as aforesaid, this application willbe dismissed with costs.
Silva, S.P.J.—I agree.
Haring had the advantage of perusing the judgment of my Lord theChief Justice I would wish to add a few words of my own.
It seems to admit of no argument that the date of any step in a case isthe date given by the judge when the case is called before him at the roll.If a proctor proceeds on the assumption that the date which had beenindicated to him in advance of the roll bj- an official of the court wouldbe the date eventually accepted by the judge, and he neither attends theroll nor verifies the judge’s confirmation of the date, he doea so at hiaperil.
WEERAMANTRY, J.Tandi v. Pinidiya
The minute entered upon the file by the office is no more than arespectful suggestion by the office to the judge of a suitable date for thestep in question and it is not open to anyone—not to a litigant and leastof all to a lawyer—to state that he proceeded upon the basis that the dat©-given to him in advance of the roll would be the date eventuallyaccepted by the judge.
It is known that judges exercise their independent discretion andjudgment in fixing the date most suitable, as they are best aware of thepressure of work in their court and of the most convenient dates to beassigned for any given step in a case pending before them. It can scarcelybe said by any practitioner that in his experience the date suggested bythe office is always accepted by the judge. Even if such had been theexperience of a practitioner in a particular court for some duration oftime, still such practice cannot exempt a proctor of the court from hisclear and necessary duty of verifying the date after the judge has madehis order in respect thereof.
I do fear, with much respect-, that however great the hardship in aparticular case, much disorganisation of court work may ensue from anexemption given by this court even in one instance from the clearduty of every practitioner to verify the date which has been given bythe judge.
Even if for some compelling reason such as ill-health a proctor is obligedto leave the court prior to the approval of the date b>' the judge, it ishis clear duty to verify the date that has been given to him on the firstpossible date thereafter. He certainly should not proceed upon thebasis that the date that had been given to him by the court officialwas correct.
Indeed many a prudent proctor not only attends the roll himself orthrough an assistant but thereafter goes to the trouble of re-checkingthe correctness of the date noted in his file, for the reason that the possibi-lity always exists of the date eventually approved of being misheard bythe proctor concerned.
I believe, and I say so with the greatest respect, that the grant ofexemption from these clear rules of professional duty in any single instancemay well result in a number of similar applications based upon eventsthat have occurred prior to the date of this judgment. Much though Iam in sympathy with the client concerned in regard to the difficultiesthat ensue to him in consequence of this view, I would prefer to takethe usual course in a case such as tin's and follow the principle that thenegligence of the proctor is in law the negligence of the client. Theclient is of course not without remedy, for means of redress are availableat law to clients who have suffered in this manner. –
With much respect therefore to the views .expressed by the othermembers of the Bench I would dismiss this application with costs.
Order set aside conditionally.
K 8709 (11/71)
U. W. JANDI and 2 others, Petitioners, and D. S. PINIDIYA and 16 others, Respond