Manaperi Somawathie v. Buwaneswari
COURT OF APPEAL
A. S. WIJETUNGE, J.and H. W. SENANAVAKE, J.
C. A. No. 697/82 (F) – D. C. ANURADHAPURA 1044NOVEMBER 2, 1990.
Civil Procedure Code – Registered Attorney – Proxy – Can notice ot appeal and petitionof appeal be signed by appellant personally when she had registered attorney on record ?- Civil Procedure Code ss. 27 and 28, 754 (3) and (4). 755.
The notice of appeal and petition of appeal was signed by the appellant herself when shehad a registered attorney on record.
When a party gives ' proxy to an attorney-at-law it remains in force until revoked withleave of Court after written notice to such registered attorney. The proxy so filed is bindingon the party until the party dies or until all proceedings in the action are ended and judgmentsatisfied so far as regards the party.
Once a registered attorney is on record the party could necessarily act only through theregistered attorney.
A party appellant who has a registered attorney on record could present only a noticeof appeal personally. He can sign the petition also only when there is no registered attorneyof his on record at the relevant time.
Case referred to :
Seelawathie v. Jayasinghe 1985 2 Sri LR 266, 270
Sri Lanka Law Reports
[1990} 1 SriL.R.
OBJECTION to entertainment ol appeal from judgment of the District Counof Anuradhapura.P. A. D. Samarasekera P. C. with Ran Banda Seneviratne for 1st defendant-appellant.S. Mahenthiran for plaintiff-respondent
Cur. adv. vult.
January 26. 1990.
W. SENANAYAKE, J.
The plaintiff-respondent instituted this action against 1st defendant-appellant seeking a declaration that he is the legal lessee of premises No.78B of Jayanthi Mahawatta, Anuradhapura, and to have the first defendant-appellant and her servants and agents ejected from the said premises.
The first defendant-appellant in her answer averred that she had beengiven possession of the premises in question by the Court of AppealOrder No. 246/80. Therefore she moved that the plaintiff respondent’splaint be rejected.
After trial the learned District Judge gave judgment in favour ot theplaintiff-respondent on 25.5.82.
The first defendant-appellant being agrieved had tendered the noticeof appeal on 28.5.82 personally and also tiled the petition of Appeal dated15.7 82 signed by first defendant-appellant herself inspite of the factthat the first defendant registered attorney's name subsisted in therecord.
At the hearing of the Appeal the learned Counsel for the plaintiff-respondent submitted that the notice of appeal and the petition of appealfiled by the defendant-appellant were bad in law and should be rejectedas on that date there was a registered attorney holding the defendant-appellant's proxy on record.
In terms ol the provisions of section 754 (1) of the Civil Procedure Codeany person who shall be dissatisfied with any judgment pronounced byany original court may prefer an appeal to the Court of Appeal againstsuch judgment.
Manaperi Somawathie v. Buwaneswari (Senanayake, J.)
In terms of the provisions of sections 754 (3) and 754(4) of the CivilProcedure Code, every Appeal to the Court of Appeal shall be lodgedby giving notice of appeal tothe original Court and such notice of appealshall be presented tothe Court of First Instance for this purpose by theparly appellant or his registered attorney.
Thereafter in terms of section 755(3) of the Civil Procedure Code everyappellant shall within 60 days present tothe original Court a petition ofAppeal which shall be signed by the applellant or his registered -Attorney.
A superfical reading of the section may give one the impression thatthe notice of appeal could be presented and signed by the party -appellant or his registered Attorney. But a correct analysis of thesesections shows that a party appellant could present only a notice ofappeal personally but he can sign the petition of appeal only when thereis no registered attorney of his on record at the relevant time.
Registered attorney is defined in section 5 of the Civil ProcedureCode, to mean an attorney – at – law appointed by a party or hisrecognized agent to act on his behalf.
A consideration of section 27 (1) shows that the appointment of aregistered attorney to make any appearance or application or to do anyact as aforesaid shall be in writing signed by the client and shall be filedin Court; when filed it shall be in force until revoked with leave of theCourt, after notice tothe registered attorney by a writing signed by theparty and filed in Court. The proxy so filed is binding on the party untilthe party dies or until all proceedings in the action are ended andjudgment satisfied so far as regards the party.
The inactive positionofthe party isfinallydemonstrated by section 28of the Code which states that if any such registered attorney dies orbecomes incapable to act any time before judgment no furtherproceedings shall be taken in the action against the party for whom heappeared until 30 days after notice to appoint another registeredattorney has been given to the party either personally or in such othermanner as the Court directs. It is therefore clear from these provisionsof the Code, that once a registered attorney is on record the party couldnecessarily act only though the registered attorney. Any other
Sri Lanka Law Reports
[1990) 1 SriL.R.
interpretation would cause confusion in the original Courts and in theadmininstration of justice. If a party is permitted to file legal documentsand motions when his registered attorney was on record, this woulddisrupt the smooth working in Courts. I am of the view that it was notthe intention of the legislature to allow the party to personally presentthe notice of appeal and sign the petition of appeal when the registeredattorney was on record. It is my considered view that a party appellantis entitled to present and sign the relevant notice and petition of appealrespectively, only when there is no registered attorney on record at thetime tendering the notice of appeal and petition of appeal.
I respectfully agree with Justice Seneviratna, when he stated inSeelawathie V. Jayasinghe (1) page 270" when a party to a case hasan attorney – at – law on record it is the attorney – at- law on record alonewho must take steps. It is a recognized principle in Court proceedingsthat when there is an attorney – at- law appointed by a party such partymust take all steps in the case through such attorney – at- law. Furtherthe principle established in Courts is that if a party is represented byan attorney -at- law such a party is not permitted to address court”.
I therefore uphold the objections and accordingly notice of appealdated 28.5.82 and the petition of appeal dated 15.7.82 are rejected andthe appeal is dismissed with costs.
A. S. WIJETUNGA, J. -1 agree.
MANAPERI SOMAWATHIE v. BUWANESWARI