Griddle Hewa v. Thomas Hewa
SUPREME COURTAMERASINGHE, J.,
S.C. NO. 163/97S.CLA. (SPL) NO. 50/97
A. NO. 34/96
C. COLOMBO NO. 16505/L.
SEPTEMBER 9TH, 1998.
Rei Vindicatio Action – Preliminary Objection – No power of attorney on record- Should a power of attorney be tendered at the time of filing of the plaint -Civil Procedure Code s. 25 (b) – Is it fatal.?
The appellant instituted a Rei Vindicatio action and on the basis of a preliminaryobjection the learned District Judge dismissed the action for the alleged reasonthat a power of attorney or a copy thereof was not in the case record. The Courtof appeal affirmed this decision. –
S. 25 (2) of the Civil Procedure Code imposes no obligation on a personappearing as a recognised agent and holding a general power of attorneyto tender same or a copy thereof at the time of filing a plaint.
Per Amerasinghe, J.
“It seems to me that in matters of this nature, the important thing isthat the person in fact had authority to act and not whether the instrumentof authorisation was filed at the time of the institution of the action".
The failure to file the power of attorney of or a certified copy thereof incourt, as stipulated in s. 25 (b) is only an irregularity, which can be curedlater.
APPEAL from the judgment of the Court of Appeal.
Cases referred to:
Aitken Spence & Co. v. Fernando – (1900) 4 NLR 35 at 37.
Sri Lanka Law Reports
 3 Sri LR.
Udeshi v. Mather – 1982 1 SLR 12 at 22.
Kumarihamy v. Punchi Menika – (1936) 38 NLR 385 at 387.
Romesh de Silva, PC with V.P.A de Almeida for the appellant.Wijedasa Rajapakse for the respondent.
Cur. adv. vult.
September 23, 1998.
The appellant instituted a rei vindicatio action against the respondentsin the District Court of Colombo. At a certain stage, on the basis ofa preliminary objection the learned District Judge dismissed the actionfor the alleged reason that a power of attorney or a copy thereof wasnot in the case record. The appellant appealed against the order ofthe District Court dated 20th February, 1996. The court of Appeal on19th March 1997, affirmed the decision of the learned District Judgeand dismissed the appeal. The Court of Appeal stated that there wasno power of attorney on record at the date of the order of the learnedDistrict Judge and that according to the date stamp on the powerof attorney which has been filed along with the petition of appeal,it had been tendered on 8. 4. 96.
The position of the petitioner was that power of attorney No. 332dated 6. 11. 93 was filed with a motion on the 14th of October,1994. The action had been filed on 18. 11. 93 and the judgment wasdelivered on the 20th of February, 1996. Learned counsel for therespondents admitted that a copy of a motion was received by therespondents by registered post but he denied that the power ofattorney was in fact filed. The motion book of the District Court relatingto the relevant period is not available and there were no other recordsrelating to filing of the power of attorney. However, it is not understoodwhy trouble would have taken to send a copy of the motion to therespondents while not filing the power of attorney referred to in thatmotion. There was nothing to be gained by withholding the powerof attorney. A perusal of the copy of the power of attorney No. 332shows that it was certainly in existence on the 8th of November, 1993.This appears from the date stamp of the Registrar-General, to whomthe power of attorney had been tendered for registration. In thecircumstances, I am of the view that the appellant's claim that the
Griddle Hewa v. Thomas Hewa (Amerasinghe, J.)
power of attorney was filed together with the motion on 14th October1994, is acceptable.
However, the question remains whether a power of attorney mustbe tendered at the time of filing the plaint. Section 25 (b) of the CivilProcedure Code requires that a person holding general powers ofattorney who seeks to appear as a recognized agent must file thepower of attorney or a copy thereof in court. In my view, section 25(b) of the Civil Procedure Code imposes no obligation on a personappearing as a recognized agent and holding- general powers ofattorney to tender the power of attorney or a copy thereof at the timeof filing a plaint.
In Aitken Spence & Co. v. Fernando at 37 Bonser, CJ, afterconferring with Moncrieff, J. expressed the view that a power ofattorney or a copy of it might, under section 25 (b), be filed at anystage of the case. It seems to me that in matters of this nature, theimportant thing is that the person in fact had authority to act and notwhether the instrument of authorisation was filed at the time of theinstitution of the action. In the matter before us, the authority hadexisted and therefore the filing of the copy of the power of attorneyon 14th October, 1994, was in order.
If the view is taken that the power of attorney or its copy mustordinarily be filed at the time of the institution of the action, the failureto do so would not be a fatal irregularity. In Udeshi v. Mather, at22 it was observed that it is now settled law that the failure to filethe power of or a certified copy thereof in court, as stipulated in section25 (fc>), is only an irregularity which can be cured later.
An irregularity of this nature cannot be permitted to vitiateproceedings unless such irregularity affected the merits of the caseor the jurisdiction of the court: Kumarihamy v. Punchi Menika, – at387.
For the reasons stated above I would allow the appeal and setaside the judgment of the Court of Appeal with costs.
GUNAWARDANA, J. – I agree.
WEERASEKERA, J. – I agree.
GRICILDA HEWA v. THOMAS HEWA