Packiyanathan v. Singarajah
FERNANDO. J„ AMERASINGHE, J. AND KULATUNGA, J.
S. C, APPEAL NO. 2/89.
A. NO. 151/80F.
C. Vavuniya 2477/RE.
September 02, 1991.
Appeal — Application for re-hearing – Civil Procedure Code, section 771- Grounds which warrant a re-hearing – Negligence of Attorney-at-Law andclient.
Relief will not be granted for default in prosecuting an appeal where —
the default has resulted from the negligence of the client or both theclient and his attorney-at-law,
the default has-resulted from the negligence of the attorney-at-law inwhich event the principle is that the negligence of the attorney-at-lawis the negligence of the client and the client must suffer for it.
As the applicant's default appeared to be the result of his own negligenceas well as the negligence of his attorney-at-law the conduct of the appellantand his attorney-at-law cannot be excused. The appellant had failed toadduce sufficient cause for a re-hearing of the appeal.
It is necessary to make a distinction between mistake or inadvertence ofan attorney-at-law or party and negligence. A mere mistake can generally beexcused; but not negligence, especially continuing negligence. The decisionwilt depend on the facts and circumstances of each case. The Court will ingranting relief ensure that it’s order will not condone or in any mannerencourage the neglect of professional duties expected of Attorneys-at-Law.
Cases referred to:
Kalawana Dhammadassi Thero v. Mawella Dhamma visuddhi Thero
57 NLR 400
Pakir Mohideen v. Mohamadu Casim 04 NLR 299
Carolis Appuhamy v. Singho Appu 05 NLR 75
Sri Lanka Law Reports
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Scharenguivci v. Orr 28 NLR 302
Kathiresu v. Sinniah 71 NLR 450
Gianchand v. Hyder 74 NLR 300
Jandi v. Pinidiya 74 NLR 433 (D.B.)
APPEAL from order of Court of Appeal refusing to re-list appeal for hear-ing.
R.E. Thambiratnam with Mr. Bazar for Appellant.
S.Mahcnthiran for Respondent.
SEPTEMBER 25, 1991.
This is an appeal from an order of the-Court of Appealrefusing an application by the appellant on 22.09.1988 in termsof s. 771 of the Civil Procedure Code to rehear the appeal inthe above action which had been decided ex parte against him.Section 771 empowers the Court to rehear an appeal ongrounds specified therein or for other “sufficient cause”. TheCourt was of the opinion that there were no reasonablegrounds warranting an order for rehearing the appeal.
The appellant was a sub-tenant of certain premises underthe respondent who had leased it from one Govindapillai. Therespondent sued the appellant to have him ejected therefrom.On 23.01.80 the District Judge dismissed the action on theground that the notice to quit given to the appellant (defend-ant) is not a valid notice. The respondent appealed to theCourt of Appeal. The appellant instructed Mr. Vilvarajah hisAttorney-at-Law in the District Court to take necessary stepsin connection with the appeal and to retain Counsel to resistthe appeal. He used to periodically visit Mr. Vilvarajah to
Packiyaaathan v. Singatajah (Kulatunga, J.)
inquire about the appeal and was told that necessary steps hadbeen taken and that he would be informed when the appealwas taken up for hearing.
The appellant had taken the said premises on a monthlyrental of Rs. 25/- and was carrying on the business of cyclerepairs there. Pending the appeal the lease of the premises tothe respondent appears to have expired whereupon the ownerGovindapillai leased it to the appellant on 01.01.1982. Theappellant states that he received no. information from Mr. Vil-varajah regarding the appeal; that Mr. Vilvarajah died at thehands of an assassin in April 1988 after which he visited Mr.Vilvarajah’s office and collected the appeal brief and otherdocuments in the case; he also caused inquiries to be madeabout the appeal and learnt in September 1988 that the appealhad been heard ex-parte and judgment delivered on 23.10.1985setting aside the judgment of the District Judge and enteringjudgment for the respondent as prayed for with costs in bothCourts.
The appellant complains that the order of the Court ofAppeal was not communicated to him by the District Court ofVavuniya nor were any steps taken by that Court to eject himfrom the premises in suit; but that prior to his becoming awareof the order in appeal, the respondent with the assistance ofsome unknown persons forcibly evicted him from the premiseson 18.01.1988; and that an attempt by his lawyers to rile aplaint in the District Court was unsuccessful for the reasonthat the Court had ceased to function.
The above facts show that the immediate reason for theappellant to make inquiries about the appeal was probably hisejectment from the premises in suit which occurred on18.01.1988 whilst Mr. Vilvarajah was yet alive. Howeverneither Mr. Vilvarajah before his death in April 1988 nor theappellant until late that year had obtained a copy of thejudgment in appeal.
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According to the date stamp of the Court of Appeal on P3,copy of the judgment ., it had been obtained on 15.08.1988.Had the appellant taken the trouble to obtain it earlier hecould have applied to the Court of Appeal for rehearing theappeal much earlier than September 1988.
In refusing his application the Court was of the view thatno reasonable grounds exist to relist the matter. As reasons forits order the Court said that the appellant’s Attorney-at-Lawhad died in April 1988 while the appeal had been decided on23.10.1985, the 3rd occasion when it had been listed for argu-ment. The facts set out above indicate that after the executionof a lease in his favour in 1982 the appellant probably lostinterest in the appeal and left it entirely to his Attorney-at-Law, possibly for the reason that he felt secure in the posses-sion of those premises as he was no longer a sub-tenant underthe respondent. His affidavit does not indicate whether apartfrom obtaining the appeal brief either of them did anythingelse regarding the appeal. It is silent as to whether Counselwere retained to argue the appeal and whether lawyer’s feeswere paid. It is also silent as to whether there was any attemptto check from the Registry of the Court of Appeal regardinglisting. The .inference from this is that they took no steps toascertain the progress of the appeal which was concluded in1985 and continued to be negligent thereafter and failed totake prompt steps even after the forcible ejectment of theappellant in January 1988.
At the hearing before us Mr. Thambiratnam learned Coun-sel for the appellant submitted that the default of the appellantto be represented at the appeal before the Court belowoccurred entirely due to the negligence of his Attorney-at-Law;that the appellant had taken all the steps within his compe-tence; and that in the circumstances of this case he should notbe deprived of a hearing and as such is entitled to an order fora rehearing of the appeal.
Packiyanathan v. Singarajab (Kulatunga, J.)
On the facts of this case the appellant’s default appears tobe the result of his own negligence as well as the negligence ofhis Attorney-at-Law. Even if it was the negligence of hisAttorney-at-Law alone the decisions of this Court which Ishall presently discuss are against him, the principle being that“the negligence of the proctor is in law the Negligence of theclient” and “the client must suffer for his proctor’s negli-gence”. The case of Kalawana Dhammadassi Thero v.Mawella Dbammavisuddhi Thero (1) cited by the learnedCounsel for the appellant has no application. In that case theproctor for the respondent to the appeal had falsely informedthe respondent that he had retained Counsel to represent him;further during the pendancy of the appeal, the proctor hadbeen suspended from the practice of his profession for a cer-tain period. Gratiaen J. held that there was “sufficient cause"within the meaning of s.771 of the C.P.C. to rehear the appeal.The instant case is different.
In view of the fact that applications for rehearing are beingmade on an increasing scale we think it appropriate to make abrief survey of the previous decisions in the matter and tostate the law in the light of those decisions. I have alreadyreferred to one such decision. Some of the other decisionswhich are relevant relate to applications made to the DistrictCourt for relief against ex parte orders entered by reason ofdefault by the defendant or the plaintiff. Default in the Dis-trict Court is curable by showing “reasonable grounds” there-for whilst in appeal the defaulting party must adduce “suffi-cient cause” for relief. The duties of legal advisers representingclients and the legal consequences of negligence on their partare the same in the original and appellate Courts.
In Pakir Mohideen v. Mohamadu Casim (2) the defendanthad noted the trial date incorrectly when his proctor’s clerkgave it to him, took no steps to get ready for trial and wasabsent at the trial. His proctor appeared and stated that hehad no instructions and withdrew from the case. After ex parte
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proceedings decree nisi was entered against him. An applica-tion to set aside the judgment on the ground that the defend-ant had mistaken the date of trial was refused by the DistrictJudge. The Supreme Court refused to revise that order observ-ing that the proctor had been forgetful or neglectful of theinterests of his client in particular in failing to ask for instruc-tions in the matter.
Bonser C.J. said –
“If the Proctor did not do his duty, he is to blame for theabsence of the defendant and the defendant must sufferfor the fault of his Proctor".
In Carolis Appubamy v. Singbo Appu (3) the SupremeCourt set aside a decree dismissing the plaintiffs action fornon-appearance where the plaintiffs absence which led to thedismissal of his action was due to his continuing illness forsome months. In Scbareaguivel v. Orr (4) when the trial wasfixed neither the plaintiff nor his proctor was present in Court.On the trial date proctors for both parties were present but theproctor for the plaintiff stated that he had no instructionsfrom his client whereupon the case was dismissed.
The District Judge disallowed an application to set asidethe decree on the ground that the plaintiff was not ignorant ofthe date of trial. In appeal Lyall Grant J. found that there wasnegligence on the part of the proctor and not personal negli-gence on the part of the plaintiff and said —
“That, however is immaterial. The plaintiff must sufferfor his proctor’s negligence-. This is clearly laid down byBonser CJ in Pakir Mohideen v. Mohamadu Casim" (2).
Lyall Grant J. thought that the relevant circumstances ofPakir Mohideen’s case appear indistinguishable from those inthe case before him. To my mind, however, the circumstancesin these cases are distinguishable to the extent that in the ear-lier case both the client and the proctor were negligent whereasin-the later case only the proctor was negligent.
Packiyamibaa v. Singanjab (Kulatunga, J.)
In Kathiresu v. Sinniah (S) the plaintiff and his proctorwere both absent on the trial date because the proctor hadtaken down the date of trial incorrectly. Fernando CJ set asidethe decree nisi entered on account of the plaintiffs non-appearance following a case reported in 16 Times of LawReports p.119 in which the only reason for non-appearancewas a mistake by the parties’ proctor.
In Gianchand v. Hyder (6) Queen’s Counsel failed toappear for the plaintiff-respondent at the hearing of the appealbecause his clerk had inadvertently failed to notify the Regis-trar of the Court of the fact that* he had been retained. Theappeal was heard ex parte, the judgment was reserved on06.06.1970 and the order was delivered on 16.07.1970 againstthe plaintiff-respondent. The Supreme Court accepted Queen’sCounsel’s explanation for his absence but refused to reopenthe appeal in the absence of an explanation by the juniorCounsel why he failed to appear. Alles J. also observed thathad the plaintiff-respondent’s legal advisers been alert theywould have been aware that the appeal had been listed, heardand the judgment reserved soon after 06.06.1970.
In Jandi v. Pinidiya (Divisional Bench) (7) the proctorwho appeared for the petitioners in a partition case desired tohave his proxy revoked as he was not able to appear and toldthem that the statement of claim had been fixed for 07.04.1968a date which he had obtained from the Court Mudaliyar whosubmitted the record to the Judge for orders with a minutespecifying the date which the District Judge would have ordi-narily adopted according to a practice in that Court. Later thepetitioners appealed to the proctor to appear for them but oninspecting the record of the case the proctor found that tneJudge had ordered 02.02.1968 for the statement of claim. Nostatement of claim having been filed on that date he fixed thetrial for 23.03.1968 on which date interlocutory decree wasentered. Fernando CJ (with Silva SPJ agreeing) observed thatthe proctor had neglected the interests of the client and on a
Sri Laoka Law Reports
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strict application of precedent the application to set aside theinterlocutory decree will have to be dismissed as the clientmust suffer for his proctor’s negligence on the ground that thefault of the agent has to be attributed to the client. He addedthat the justification for this principle is that under the Com-mon Law a client has a right of action against his proctor fordamages sustained as a result of the negligence of the proctor.However, the Chief Justice distinguished the case before himfrom others in which questions of default had been considered.He said that if for a long period officers of the District Courthave customarily given information as to dates fixed for stepsin an action, a proctor may perhaps have some excuse forthinking that information thus furnished is correct. He alsonoted that the reason why the proctor for the petitionersdesired to cancel the proxy given to him by the petitioners wasthat another proctor was personally interested in the partitionaction and thought that there are circumstances in the casewhich might lend support to the criticism that the conduct ofpetitioners and Court officers has deprived the petitioners oftheir right to be heard in the partition action.
Upon those considerations Fernando CJ felt that the prin-ciple “justice must not only be done but must also appear tobe done” should be applied and directed that subject to thedeposit of Rs. 500/- payable to the respondents and the pay-ment of costs in the District Court, the interlocutory decreewill be set aside but with a warning that the Court “will not infuture be inclined to grant relief when practitioners fail tocarry out their responsibilities”.
Weeramantry, J. (dissenting) was unable to excuse the con-duct of the proctor in failing to verify the date on the recordand preferred to dismiss the application applying the principlethat the negligence of the proctor is in law the negligence ofthe client.
To sum up the position in the light ot the above decisions,it seems that relief may not be granted –
PadaymUum r. Singmrajmh (Kulatunga, J.)
where the default has resulted from the neligence of theclient or both the client and his Attomey-at-Law;
where the default has resulted from the negligence of theAttorney-at-Law in which event the principle is that thenegligence of the Attomey-at-Law is the negligence ofthe client and the client must suffer for it.
However, it is necessary to make a distinction between mis-take or inadvertence of an Attorney-at-Law or party and neg-ligence. A mere mistake can generally be excused; but not neg-ligence, especially continuing negligence. The decision wiltdepend upon the facts and circumstances of each case; andwhere the conduct of Counsel is involved the Court will, ingranting relief, ensure that its order will not condone or in anymanner encourage the neglect of professional duties expectedof Attorneys-at-Law.
Applying the above principles to the facts of this case, I amof the view that the conduct of the appellant and his Attomey-at-Law cannot be excused and the appellant had failed toadduce sufficient cause for a rehearing of the appeal.
The learned Counsel for the respondent also raised a pre-liminary objection that the special leave to appeal was filedout of time. The application for relisting was refused on
but the special leave application was lodged on
This Court has granted special leave to appeal exparte subject to any objections that the respondent would takeat the hearing of the appeal. Learned Counsel fbr the appel-lant submitted that the delay in filing the application for spe-cial leave strictly within time should be excused for the reasonthat the order appealed from had been made in chambers andhence the appellant was not aware of it for some time.
The order appealed from has been produced marked P2.According to an entry therein it had been certified on
As the date stamp of the Court of Appeal thereonindicating its issue is not decipherable I had the records of the
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Court of Appeal checked and find that it has been issued after4.20 p.m. on 05.10.1988. If so, the delay would be just one daywhich if not excused will bar this appeal; but as the appellantwas not heard on these facts and in view of my finding above,I do not consider it necessary to decide the preliminary objec-tion.
For the foregoing reasons, I affirm the order of the Courtof Appeal and dismiss the appeal with costs.
Fernando, J. —1 agree.
Amerastnghe, J. — I agree.
PACKIYANATHAN V. SINGARAJAH