Sri Lanka Law Reports
 1 Sri L ft
WIJERATNE AND ANOTHER
COURT OF APPEAL
ISMAIL, J. (P/CA),
A.LA. NO. 180/98
C. COLOMBO NO. 5117/SPL
DECEMBER 9, 1998
MARCH 4TH AND 23RD 1999
Civil Procedure Code – S. 39, 46 (2), 75, 463 – Failure to Stamp the Proxy
– Is it fatal – Attorney-General undertaking the defence – Stamp Duty Act –
Amendment No. 27 of 1997 – S. 14 (c) – S. 71.
The CPC makes it clear that neither in regular actions (S. 39) nor in answersfiled under s. 75 is there any requirement that the documents should bestamped at the time of presentation. There is no explicit or implied provisionfor denial of the acceptance of the document presented to Court containedin these aforesaid sections.
S. 46 (2) CPC shows that Court is bound to afford to the plaintiff anopportunity to supply the deficiency in stamping.
Thus, it is clear that insufficiency of stamping is not a fatal defect.
Although no specific application has been made under s. 463, CPC forthe Attorney-General to undertake the defence, it is not a bar to thedefence being undertaken by the Attorney-General, the fact that theAttorney-General has not made an Application in terms of s. 463 doesnot disentitle him from assigning a State counsel to appear for a defendantwho is a Public Officer.
The filing of the Proxy by the Attorney-General unequivocally declares thatthe Attorney-General has undertaken the defence and that is sufficientcompliance with s. 463 CPC.
CAWijeratne and Another v. Weeratunga (Tilakawardane, J.)333
Any document filed by the Attorney-General does not need stamp duty.APPEAL from the order of the District Court. Colombo.
Cases referred to:
Salgado v. Peiris – (1909) 12 NLR 379.
Sandanam v. Jamaldeen – 71 NLR 145.
Sita Rajasingham v. Maureen Seneviratne and Another – 1995 -2 SLR – 69.
Jayawickrema v. Amarasuriya
De Silva v. Illangakoone – 57 NLR 457.
The Secretary to the Treasury – Colombo v. Mediwake – 74 NLR 505.
Vettivelu v. Wijeratne – 60 NLR 442.
J. W. Subasinghe, PC with Jayatissa Herath for plaintiff-appellant-petitioners.Ms. Farzana Jameel, SC for respondent.
Cur. adv. vult.
May 5, 1999.
SHIRANEE TILAKAWARDANE, J.
The plaintiff-appellants-petitioners instituted action in the District Courtof Colombo on 4th May, 1998, seeking inter alia for an interiminjunction to stay the decision of the defendant-respondent preventingthe 2nd plaintiff-appellant-petitioner from attending school and sittingfor the General Certificate of Education (Advanced Level) Examinationin August, 1998, as a school candidate.
The statement of objections of the defendant-respondent was filedon 20.5.98 and inquiry was fixed for 3.6.98. In the meantime theplaintiff-appellants-petitioners filed objections to the acceptance of thepapers of the defendant-respondent for the reason that the proxy hadnot been stamped and in the circumstances moved for an ex partetrial. These objections were rejected by the trial judge.
The District Judge by Order (P7) dated 13.7.98, refused the interiminjunction-rejected the objections and awarded costs of the inquiry tothe defendant-respondents. This application is against the Order.
Sri Lanka Law Reports
 1 Sri LR.
The issue that arises in this case is whether the failure to stampthe proxy tendered by the Attorney-General on behalf of thedefendant-respondent is a fatal defect, and consequently should thedocuments preferred by the defendant-respondent have beenrejected.
The full Bench decision of Salgado v. Peirisf'' settled the law thata Petition of Appeal to the Supreme Court which has been preferredwill be rejected if not sufficiently stamped. Section 755 of the CivilProcedure Code by implication required a proper stamp duty to beproduced at the time of presentation of the written appeal. This wasthe law that-applied before the amendment No. 20 of 1977 of theCivil Procedure Code.
In the subsequent case of Sandanam v. Jamaldeeii3 it was,however, held that in an application for conditional leave to the PrivyCouncil, a deficiency arising from a bona fide error in the stampingis not a fatal defect.
In the case of Sita Rajasingham v. Maureen Seneviratne andanother Justice Dheeraratne, dealing with a case where there wasan insufficiency of stamping in a petition purging the default ofappearance held that, "a right of a party to maintain a proceedingcannot be denied to that party on the ground of insufficiency ofstamping of a document, unless the law expressly or impliedly providedfor such denial". He held, further, that the petition was wrongly rejectedfor the deficiency of stamping and that the correct procedure wasfor the Court to have called for the deficiency of the stamping to besupplied by the party who tendered the document to the Court.
The Civil Procedure Code makes it clear that neither in regularactions filed under section 39, nor in answers filed under section 75of the Civil Procedure Code is there any requirement thatthe documents should be stamped at the time of presentation,Furthermore, there was no explicit or implied provision for denial ofthe acceptance of the document presented to Court contained in theseaforesaid sections.
In fact section 46 (2) (h) gives discretion of a judge to reject theplaint, if it is . . written on paper insufficiently stamped, and theplaintiff on being required by the Court to supply the requisite stamps
CAWijeratne and Another v. Weeratunga (Tilakawardane, J.)335
within a time to be fixed by Court fails to do so". This means thatthe Court is bound to afford to the plaintiff an opportunity tosupply the deficiency in stamping.
Furthermore, in the case of Jayawickrama v. Amarasooriya*41 it washeld that, "when a judge having considered the question of thesufficiency of stamp duty accepts a plaint or answer, or has acceptedit having inadvertently omitted to consider the question, the remedy,if indeed any exists, must be by means of an action as the Attorney-General as representing the crown, to which all stamp duties are adebt, may be deemed to be entitled to take".
Therefore, it is clear that insufficieny of stamping is not a fataldefect.
In the present case the Attorney-General has appeared and fileda proxy on behalf of the defendant-respondent. Counsel for theplaintiff-appellant-petitioner contended that the defense could onlybe undertaken after a specific application in terms of section 463 ofthe Civil Procedure Code.
Section 463 of the Civil Procedure Code as amended provides that"If the Attorney-General undertakes the defense of an action againsta Minister, Parliamentary Secretary, or Public officer the Attorney-General shall apply to the Court, and upon such application the Courtshall substitute the name of the Attorney-General as a party defendantin the action".
In this context "undertakes the defense" connotes a great deal morethan a mere decision to provide legal representation. It involves theacceptance of responsibility by the State for the satisfaction of a decreewhich might otherwise have been awarded in favour of a plaintiffagainst the public officer individually.
It has not been disputed in this case that the action against thedefendant is for an act that he performed in the furtherance of hisduties as a principal and, therefore, in his capacity as a public officerof a government school. It is also relevant that in the case of DeSilva v. Illangakoonel51 it was held that a principal issuing a schoolleaving certificate does so only in his official capacity.
Sri Lanka Law Reports
 1 Sri LR.
Admittedly, no specific application has been made under the aforesaidsection 463 for the Attorney-General to undertake the defense of thedefendant. But this has been held not to be a bar to the defensebeing undertaken by the Attorney-General as was held in the caseof The Secretary to the Treasury, Colombo v. Mediwakef®. it was alsoheld in the case of Vettivelu v. Wijeratn&n. "The fact that the Attorney-General has not made an application in terms of section 463 of theCivil Procedure Code does not disentitle him from assigning a crowncounsel to appear for a defendant who is a public officer".
In these circumstances the filing of the proxy by the Attorney-General unequivocally declares that the Attorney-General hasundertaken the defense and that such is sufficient compliance withsection 463 of the Civil Procedure Code.
Furthermore, any document filed by the Attorney-General does notneed stamp duty, in terms of section 5 (14) (c) of the Stamp DutyAct of 1982. Section 71 of the Stamp Duty Act as amended by Act,No. 27 of 1991 defines a document to include a Power of Attorney.
We, therefore, see no reason to interfere with the Order of theDistrict Judge rejecting the application for the non-acceptance of thedefendant's documents.
The District Judge has also refused the interim injunction on thebasis that no prima facie case has been established by the plaintiff-appellant-petitioners has referred to the document V4. This has beenan application for a school leaving certificate purportedly made at therequest of the 2nd plaintiff-appellant-petitioner. Considering the factthat 3 separate teachers had placed their signatures on the document,the District Judge has held that it is improbable that the 3 teacherswho had signed V4 were all part of a deliberate conspiracy. Especiallyin the light of their favourable comments about the student. We seeno reason to interfere with this finding.
The Leave to Appeal application is refused. Application is dismissedwith costs.
ISMAIL, J. (P/CA) – I agree.
WIJERATNE AND ANOTHER v. WEERATUNGA