Abdeen v. Manel Dahanayake
COURT. OF APPEAL.
DR. RANARAJA, J.
A. NO. 1031/91(F),
C. KANDY NO. 15490/L.
MAY 26, 1997.
Civil Procedure Code sections 87(1), 88(1) – Trial date – Plaintiff and herregistered Attorney-at-Law absent – An Attorney-at-Law appeared for the limitedpurpose of tendering a Medical Certificate. – Action dismissed – Was the Orderof dismissal made inter partes? If not does an appeal lie.
Section 87(1) provides that where the plaintiff makes default in appearing on theday fixed for trial, the Court shall dismiss the action
Section 88(1) provides that no appeal shall lie against any judgment enteredupon default.
The Attorney-at-Law who tendered the Medical Certificate appeared for thelimited purpose of tendering the certificate, not being the registered Attorney shecould not have had any instructions from the plaintiff to proceed with the case.
The trial judge has understood her limited role, he has not asked her whether shewas prepared to lead any evidence on behalf of the plaintiff, but treated theplaintiff's absence as a "default" and dismissed her action.
There were no proceedings inter partes. The Order of dismissal have thereforebeen made ex parte for default in appearing.
No appeal lies from an order of dismissal.
AN APPEAL from the judgment of the District Court ol Kandy.
Cases referred to:
Andiappa Chettiar v. Shanmugam Chettiar – 33NLR217.
Scharenguivel v. Orr- 28 NLR 302.
Dick v. Filter- 1943 AER 627.
Faiz Musthapha, PC. with S. Jayawardena for appellant.Respondent absent and unrepresented.
Cur. adv. vult.
Sri Lanka Law Reports
(1997j 3 Sri L.R,
May 26, 1997.
DR. RANARAJA, J.
On the 5th Trial date, 2.4.91 the plaintiff and her registeredAttorney were absent. One Mrs. Girihagama appeared for the limitedpurpose of tendering a medical certificate issued to the plaintiff. Thelearned District Judge dismissed the plaintiff’s action on the groundthat the plaintiff had not been ready on any of the trial datesaccording to the journal entries. This appeal is from that order.
Section 87(1) of the Civil Procedure Code provides that where theplaintiff makes default in appearing on the day fixed for the trial, theCourt shall dismiss the plaintiff's action.
Section 88(1) of the Code provides that no appeal shall lie againstany judgment entered upon default.
Two questions arise in this appeal. Namely, (1) Was the order ofdismissal made inter-partes? (2) If not does an appeal lie from thatorder?
Learned Counsel submitted that the order dated 2.4.91 was madeinter-partes and not in default of appearance. He cited the decision inAndiappa Chettiar v. Shanmugam Chettiad" in support. At the outset,it is to be noted that in the instant case, neither the plaintiff nor herregistered Attorney was present in Court. The facts in Andiappa cantherefore be distinguished.
However Macdonell, C.J. observed “consequently it seems butreasonable that the proctor should have the right to inform the Courtthat, though he is physically present, he does not on this occasionappear for the (plaintiff) defendant whose case has been just called.But it seems to me that it is his duty to make it clear that he does noton this occasion appear for his client, and that if he does not so makeit clear, his presence in Court will ipso facto be an appearance forthat client. A few words only will be necessary provided that theymake it clear that he does not appear for his client… The substanceof what he says will of course be entered forthwith in the journal of thecase.
Abdeen v. Manel Dahanayake (Or. Ranaraja, J.)
As seen Mrs. Girihagama who was not the registered Attorney onrecord, clearly stated that she was appearing for the limited purposeof tendering the medical certificate. Not being the registered Attorneyshe could not have had any instructions from the plaintiff to proceedwith the case. The Trial Judge has understood her limited role. Hehas not asked her whether she was prepared to lead any evidenceon behalf of the plaintiff, but treated the plaintiff’s absence as a"default" and dismissed her action. Thus clearly there were noproceedings inter-partes.
The principle laid down in Scharenguivel v. Orrm that “It has neverbeen held that a proctor for a plaintiff who has received a proxy andinstructions for the preparation of a plaint is entitled to avoid a finaljudgment against his client merely by stating on the date fixed for trialthat he has received no instruction" has no application to the facts ofthe instant case.
What took place on the date of trial was, the plaintiff purportedlyfor reasons of ill-health was not present in Court. The registeredAttorney too was absent. An Attorney with limited instructions totender to Court a medical certificate issued to the plaintiff has doneso. The plaintiff nor her registered Attorney being present in Courtthere could logically have been no inter-partes proceedings. Theorder of dismissal has therefore been made exparte for “default inappearing". The facts in Dick v. Pilled are entirely different fromthose relevant to the present case, where the trial had not evencommenced due to the plaintiff seeking adjournments on no lessthan on seven trial dates.
No appeal lies from the order of dismissal. The plaintiff's remedylay in section 87(3) of the Code.
ABDEEN v. MANEL DHANAYAKE