Shafeer v. Dharmapaia
COURT OF APPEAL.
A. 21/85 (F)
S. KANDY 1682/RESEPTEMBER 15, 1994.
Proxy – Appearance on Summons Returnable date – S. 24, 27 Civil ProcedureCode – Authority given to an Attorney-at-Law – What constitutes an appearance.
On the summons returnable date 12.5.82, an Attorney-at-Law, ‘N’ had appearedfor the 2nd Defendant-Appellant and moved for a date to file proxy and answer.The 2nd Defendant-Appellant was absent. The Attorney-at-Law for the plaintiffobjected to this application and moved Court to fix the matter for ex parte trial.Court made order to call the case to be fixed for ex parte trial. Thereafter the casewas heard ex parte.
An Attorney-at-Law has no authority under S. 24, S. 27 of the Civil ProcedureCode to move Court for time to file Proxy and Answer.
Filling of proxy is the only manifestation that could confer authority for theappointment of a person on behalf of another. Where that person is absent thatanterior authority has to be there by way of a proxy in order to confer authority.Where there has been no such anterior authority, if the client afterwards rectifieswhat has been done one could expect such authority to flow to 'N'. In thisinstance there is no subsequent proxy given to 'N' that could rectify what hadtaken place on 12.5.82.
An appeal from a judgment of the District Court of Kandy.
Casa referred to:
1. Tillakaratna v. Wijesinghe -11 NLR 270
Faiz Musthapha, P. C„ with H. Withanachchi for Defendant-Appellant.
T. B. Dillimuni for Plaintiff-Respondent
Sri Lanka Law Reports
11995} 2 Sri LR.
This is an appeal from the order of the learned District Judge ofKandy dated 28.2.85 refusing to set aside the Judgment enteredex parte against the 2nd defendant-appellant.
Counsel for the 2nd defendant-appellant argued that the order ofthe learned District Judge cannot stand for the reason that what hadbeen evaluated by the Judge was whether there was appearance infact, or not and whether the Attorney-at-Law. who is alleged to haveappeared, had the authority to do so? The question therefore thatwould have to be examined is whether as a matter of law there was infact an appearance on 12.5.82, the date on which the summon wasreturnable. On that date according to the Journal Entry an Attorney-at-Law by the name of Nagappapillai had appeared for the 2nddefendant-appellant and moved for a date to file a proxy and answer.The 2nd defendant-appellant was absent. The Attorney-at-Law for theplaintiff had objected to this application of Mr. Nagappapillai as thedefendant was absent and moved that the case be fixed for ex partetrial. Learned District Judge had for an undisclosed reason, madeorder to call the case to be fixed for ex parte trial.
We have examined very carefully the submissions of President’sCounsel. We have also examined the Journal Entry of 12.5.82. Wehave also examined very carefully the affidavit of the 2nd defendantdated 25.5.82. to which the learned Counsel for the appellantadverted to. We have also examined the reasoning of the learnedDistrict Judge and the case of Tillakaratna v. Wijesinghe<1).
Learned Counsel for the appellant does not base his case and isnot relying on the question of subsequent ratification inasmuch as theproxy which was filed on 26.5.82 was not that of Attorney-at-LawNagappapillai but of another. Attorney-at-Law, Nagappapillaiappeared on 12.5.82 and moved to file his proxy and answer. Clearlyhe had no authority to do so as envisaged by sections 24 and 27 ofthe Civil Procedure Code and we see no provision in the CivilProcedure Code for the Judge to permit this procedure. The questionnow that has to be determined is, did the affidavit filed on 25.5.82
Shafeer v. Dharmapala (Weerasekera, J.)
prior to the case being fixed for ex parte trial on 7.7.82 for 14.7.82give Nagappapillai Attorney-at-Law the authority to appear for the2nd defendant? The affidavit itself, in our view, does not specificallystate that Nagappapillai has been given the authority. It contains ageneral statement to say that authority has been given to theAttorney-at-Law. The Attorney-at-Law on record from the 26th May isnot Nagappapillai but another. In any event the filing of proxy is theonly manifestation that could confer authority for the appointment of aperson on behalf of another. Where that person is absent thatanterior authority has to be there by way of a proxy in order to confersuch authority. Where there has been no such anterior authority as itwas decided in the case of TiHakaratna v. Wijesinghe (supra)m if theclient afterwards rectifies what has been done one could haveexpected such authority to flow to Nagappapillai. In this instancethere is no subsequent proxy to Nagappapillai that could rectify whathad taken place on 12.5.82. We are therefore of the view that learnedDistrict Judge had not misdirected his mind when he held that thereis no appearance of the 2nd defendant on 12.5.82. In any event thereare no reasonable grounds to satisfy the Court of the default of theappearance of the 2nd defendant-appellant. In these circumstancesthe appeal is dismissed with costs fixed at Rs. 325/-.
DR. ANANDA GRERO, J. -1 agree.
SHAFEER V. DHARMAPALA