DISTILLERIES COMPANY LTD
v.KARIYAWASAM AND OTHERS
COURT OF APPEAL
C. COLOMBO 5668/SPL
JUNE 20th, 27th 2001
Civil Procedure Code – S. 24, S. 27. S. 181. S. 757(1) – Affidavit can It
be affirmed anterior to the date the Petition had been subscribed to?
What is support? Proxy – who can sign same?
(1) In terms of S. 757( 1) the Petition need not precede In point of time tothat of the affidavit so as to enable a party to support the contents ofthe Petition.
Per Nanayakkara, J.
"The object of the Civil Procedure Code is to prevent civil proceedingsfrom being frustrated by any kind of technical irregularity or lapsewhich has not caused prejudice or harm to a party. A rigid adherenceto technicalities should not prevent a court from dispensingjustice."The court should not approach the task of interpretation of a provisionof law with excessive formalities and technicality. A provision of lawhas to be interpreted contextually giving consideration to the spirit ofthe law."
In this case the proxy has been given in the name of one PrasannaGunawardena, his Consultants and his Assistants as registeredAttorneys-at-Law. Although the Civil Procedure Code does notrecognise a status called “Consultants”, if an Attorney at Law wishesto have that appellation at the end or the beginning of his name inaddition to his status, as registered Attorney, it does not therebyinvalidate the proxy filed, as long as a duty appointed Attorney at Lawis empowered to act by a party in the case. There is nothing irregularor improper in this appointment.
The Petition has been subscribed to by Prasanna Gunawardena andCompany. However, the description of the Petition should correspondwith the names given in the proxy and if the Petition has been subscribed
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to as Pr as anna Gunawardena & Company, the Proxy too should havebeen given In the said Company’s name instead of PrasannaGunawardena, his Consultants and his registered Attorneys asevidenced by the Proxy.
Per Nanayakkara, J.
“The Proxy therefore is flawed and defective which flaw or defect istraceable to the proxy and not so much to the subscription of thePetition."
The important question that has to be determined is whether PrasannaGunawardena & Company, had in fact the authority of his client to dowhat was done on his behalf, on the strength of the Proxy given to thesubscriber by his client.
There is no doubt that Prasanna Gunawardena & Company, had ampleauthority. The defect or the flaw is curable under the law, and doesnot affect the validity of the Petition, however the Petitioner shouldrectify the defect in the proxy in conformity with the relevant provisionsof the Civil Procedure Code.
APPLICATION for Leave to Appeal from the order of the District Judge
Cases referred to :
Kobbekaduwa v. Jayawardena – 1983 – 1 Sri LR 416
Damayanthie Abeywardena v. Hemalatha Abeywardena – 1993 -1 SLR 277
Chandrasiri v. Abeywickrema – 1998 3 SLR 227
Seneviratne Banda v. Chandrawathie – 1997 Vol. 1 SLR 12
Veluplllal v. The Chairman. Urban District Council – 39 NLR 464
Klriwanthe v. Navaratne – 1990 2 Sri LR 393
Mackinon's v. Grlndlays Bank – 1986 2 Sri LR 272
Seelawathte v. Jayaslnghe – 1985 2 Sri LR 266
Fernando v. Fernando – 1997 3 Sri 1
Tilakaratne v. Wljeslnghe – 11 NLR 270
Treaby v. Bawa – 7 NLR 22
Tea Small Factories Ltd., v. Weeragoda – 1994 3 Sri LR 353
K.N. Choksy PC., with S. S. C. Thamblah. S. Jayawardena. VIK. Choksy
and Ms. K. Wljetunga for Petitioner.
Distilleries Company Ltd v. Kartyawasam and others
Wljedasa Rajapakse P.C., with G. G. Arulpragasam and KapllaLlyanagamage for Plaintiff Respondents.
Fatz Musthapa P.C., with Chanaka de Silva for 2nd, 3rd and 5th-16thRespondent.
K. Kanag-Iswaran P.C., with A. Rodrigo for 1st Respondent.
Cur. adv. uult.
July 13. 2001.
NANAYAKKARA, J.When this matter was taken up for hearing on the 25thJune 2001 counsel for the plaintiff-respondent (respondent)raised two preliminary objections. Basing his first objection onthe provision of section 757(1) of the Civil Procedure Code.Counsel submitted that the affidavit filed by the 16th Defendent-petitioner (petitioner) does not support the petition ascontemplated by section 757( 1) of the Civil Procedure Code asthe affidavit had been affirmed to on a date anterior to the datethe petition had been subscribed to. It was argued on behalf ofthe respondent, as the date of the affidavit submitted by thepetitioner precedes the date of the petition, the petitioner couldnot have possibly supported the contents of the petition by hisaffidavit, as contemplated by section 757(1) of the CivilProcedure Code.
Drawing the attention of the court to the affidavit of thepetitioner, learned counsel argued that it had been affirmed toon the 23rd of May 2001, while the petition had been signed onthe 24th of May 2001, and thereby the petitioner had supportedthe contents of a non existing petition by his affidavit. In supportof his argument, learned counsel has drawn our attention tothe following decisions
Kobbekaduwa v. Jayawarderta,111
Damayanthie Abeyawardena v. Hemalatha Abeyawardena!21
Chandraslrl u. Abeywlkrema131
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Counsel also invited us to have recourse to the meaning ofthe word “support" given in the “Random House Dictionary”of the English Language, in interpreting the section.
Learned counsel for the petitioner in reply to the objectionraised by the respondent adverting to the same authorities citedby counsel for the respondent, argued that an affidavit has onlyto bear the date it is attested on or affirmed to and the petitionhas to bear the date it is lodged in the Registry of the court, andthe law does not require that both petition and affidavit shouldbear the same date. If it is so it can cause immense practicaldifficulties and hardships to parties. All that is expected of apetitioner under section 757(1) of the Civil Procedure Code isto verify matters contained in the petition by way of an affidavit.
At this stage it will be useful to refer to the relevant sectionof the Civil Procedure Code. Relevant section 757( 1) reads thus:
“Every application for leave to appeal against an order ofcourt made in the course of any civil action, proceeding or matter,shall be made by petition duly stamped, addressed to theSupreme Court and signed by the party aggrieved or hisregistered Attorney and shall be supported by affidavit and shallcontain the particulars required by section 758. The appellantshall with such petition tender as many copies as may berequired for service on the respondents".
When this section is carefully analyzed it becomes evidentthat the averments contained in the affidavit should only besupportive of the contents of the petition and for that purposeit does not stipulate that the petition has to be anterior to thedate of petition. In other words the petition need not precede inpoint of time to that of the affidavit so as to enable a party tosupport the contents of the petition.
An affidavit that is required to be submitted along with thepetition under section 757 (1) of the Civil Procedure Code shouldonly furnish prima facie proof of the material facts set out oralleged in the petition and it should be confined to the
Distilleries Company Ltd v. Kariyawasam and others
statement of such facts as the declarant is able of his ownknowledge and observation to testify in accordance with section181 of the Civil Procedure Code.
If the argument urged by learned counsel for the plaintiff-respondent was to prevail, this court would be compelled toreject many applications that are filed with petitions andaffidavits under section 757 (1) of the Civil Procedure Code inlimine, even if they bear the same date unless the court wasabsolutely certain that the petition was anterior in point of timeto that of the affidavit.
This can be explained clearly by way of an illustration, if anaffidavit bearing the same date as the petition is affirmed to inthe morning, and the petition is signed in the evening, it can beargued that the petitioner by his affidavit has supported thecontents of a non existing petition. If we were to uphold thiscontention it would inevitably lead to grave hardships andpractical difficulties to the parties in cases. It should be statedat the outset that the argument advanced by learned counselfor the respondent is of a highly technical nature. Even if onewere to accept the argument advanced by learned counsel forthe respondents-respondents, as the correct technical legalposition the question that has to be determined in the instantcase is whether, it has caused any prejudice to the respondent.It is my view, if it has not caused any such prejudice, the courtcan act on it. I must state that the authorities submitted bylearned counsel for the respondent does not support theproposition he advanced in the course of his argument. I am ofthe view that the decision reached in the case of SenevlratneBanda v. Chandrawathie,l4> will provide some useful guidencein solving the present problem. It was a case filed under theMaintenance Ordinance where the liability to pay maintenanceis of a civil nature, it was argued in that case that there was noproper application in terms of section 13 of the MaintenanceOrdinance as there was only an affidavit filed without a petitionas contemplated by the section. Nevertheless the court held thatas the affidavit set out all the facts material to the application
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there was sufficient compliance with section 13 of theMainatenance Ordinance. This is a case where there was a totalabsence of a petition. But as far as the present application isconcerned, as both the petition and affidavit are there. I am ofthe view that the process of reasoning used in that case by analogycan be applied to the instant case even if some irregularity hasoccured by the fact that the affidavit had been affirmed to beforethe petition was subscribed to, as alleged by the respondent.
The object of the Civil Procedure is to prevent civilproceedings from being frustrated by any kind of technicalirregularity or lapse which has not caused prejudice or harm toa party. A rigid adherence to technicalities should not prevent acourt from dispensing justice. As Lord Chief Justice Abrahampertinently remarked in the case of Veluplllai v. The Chairman,District Council Jaffna151, that the court of law is a court of justiceand it is not an academy of law should be always uppermost inone's mind. The court should not approach the task ofinterpretation of a provision of law with excessive formalismand technicality. The Code of Civil Procedure provides a seriesof rules designed to facilitate the orderly and impartial conductfrom the stage of drafting of the pleadings until the judgmentand execution of decree. Therefore the rules of procedure hasbeen designed and formulated to facilitate due administrationof justice. In this regard observations made by Justice Kulatungain the case of Klrlwantha u. Navaratne,16' will also becomepertinent. “The Court should bear in mind the need to keep thechannel of procedure open for justice to flow freely and smoothlyand the need to maintain the discipline of law. At the same timethe court will not permit mere technicalities to stand in the wayof court doing justice". In the case of Mackinons v. Grindlay’sBank17’ Chief Justice Sharvananda stated as follows:
“All rules of court are nothing but provisions intended tosecure the proper administration of justice and it is thereforeessential that they should be made to serve and be subordinateto that purpose”
Similarly the problem of construing or interpreting aprovision of law cannot be solved merely by adopting the literal
Distilleries Company Ltd v. Kartyawasam and. others
interpretation of a section or meaning given to a word in adictionary as urged by learned counsel for the plaintiff-respondent. A provision of law has to be interpreted contextually,giving consideration to the spirit of the law.
Learned counsel for the respondent’s second objection wasbased on the question whether the duly appointed registeredAttorney – at – Law has subscribed to the petition. Basically hisargument was that the petition is purported to have been filedby Mr. R S. Gunawardena, his consultants and several otherassistants as registered Attorneys – at – Law, but the petitionhad been subscribed to neither by Mr. Gunawardena nor byhis consultants nor by his assistants, but it has been signed byMr. Prasanna Gunawaradena & Company which is not a legalentity or partnership in the eyes of the Law. If it is a legal entityor partnership Company’s or partnership's name should havereflected in the proxy filed. As the subscription of the petitiondoes not correspond with the proxy the petition is fundamentallyflawed. Therefore the resulting position is that petition has notbeen filed by a duly appointed registered Attorney in terms ofsection 24 of the Civil Procedure Code. In support of hisargument learned counsel has drawn our attention to thefollowing decisions reached in Seelawathie v. Jayaslnghe18’,and Fernando v. Fernando19’.
Learned counsel for the petitioner in reply has submittedthat names and the descriptions given in the proxy are that ofduly enrolled attorneys – at – Law and if learned counsel for therespondent challenges or disputes their positions as Attorneys- at – Law, the onus of proving that they are not duly appointedAttorneys – at – Law is on the respondent. Arguing furtherlearned counsel submitted that the petitioner in terms of section27 of the Civil Procedure Code, has empowered the Attorneys -at – Law named in the proxy, to appear before court for and onbehalf of the petitioner. He further argued even if there is anoversight or a defect in the proxy it is curable under the law andcontended that a defect in a proxy is not a valid ground to rejectan application. In this connection the learned counsel hasreferred us to the following decisions:
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Tllakaratne u. Wijesinghe,wi, and Treaby v. Bawd1"1.
As the objection of counsel for the respondent is based onthe proxy and the petition filed by the petitioner it is importantto examine the proxy and the petition that have been filed onbehalf of the petitioner in this case. As far as the proxy isconcerned, the proxy has been given in the name of Mr. PrasannaGunawardena, his consultants and his assistants as registeredAttorneys – at – Law. Although the Civil Procedure Code doesnot recognize a status called “consultants”, if an Attorney – at -Law wishes to have that appellation at the end or the beginingof his name, in addition to his status as registered Attorney – at- law it does not thereby invalidate the proxy filed, as long as aduly appointed Attorney – at – Law is empowered to act by aparty in the case. The proxy that has been filed in thiscase bears a number of names including Mr. PrasannaGunawardena, his consultants and his assistants as registeredAttorneys – at – Law to act on behalf of the petitioner taken byitself. I see nothing irregular or improper in this appointment.As far as the petition is concerned counsel for the petitionerhimself admits that it has been filed by Mr. PrasannaGunawardena. His consultants and his assistants as registeredAttorneys – at – Law but the petition has been subscribed to byPrasanna Gunawardena & Company. I am in agreement withthe learned counsel for the respondent when he says thatsubscription of the petition should correspond with the namesgiven in the proxy, and if the petition has been subscribed to asPrasanna Goonewardena & Company, the proxy too should havebeen given in the said Company's name instead of PrasannaGoonewardena his consultants and his registered assistantAttorneys – at -Law as evidenced by the proxy. Therefore I am ofthe view that the proxy given by the respondent in this case inthat respect is flawed and defective which flaw or defect istraceable to the proxy and not so much to the subscription ofthe petition as the learned counsel pointed out. In the finalanalysis issue in this case boils down to the question of thevalidity of the proxy and not to the validity of the petition. Theimportant question that has to be determined is whether
Distilleries Company Ltd v. Karlyawasam and others
Prasanna Goonewardena & Company had in fact the authorityof his client to do what was done on his behalf on the strengthof the proxy given to the subscriber by his client.
I am of the view that there is absolutely no doubt thatPrasanna Goonawardena & Company – the subscriber to thepetition had ample authority to do what was done on behalf ofthe client. The next question that has to-be determined iswhether the defect or flaw is curable under the law. I considereven if the petition has been subscribed to by PrasannaGoonewardena & Company it is an irregularity which is curableunder the law in view of the decisions reached in the cases ofTilakaratne u. Wijesinghe (Supra) and Tea Small Factories Ltd.v. Weragoda1121, and does not affect the validity of the petition.In this connection the observation made in a case cited by bothparties will become useful. Justice Dr. Amarasinghe observedin Fernando v. Fernando (Supra).
"Judges do not blindly devote themselves to procedures orruthlessly sacrifice litigants to technicality.
This will provide very useful guidance in dealing with theproblem at hand. For the above mentioned reasons I reject thepreliminary objections raised by counsel for the plaintiff-respondent and direct the petitioner to rectify the defect in theproxy in conformity with the relevant provisions of the CivilProcedure Code.
UDALAGAMA, J. 1 agree.
Preliminary objection overruled.
Plaintiff asked to rectify the deject in the proxy in conformitywith the provisions of the Civil Procedure Code.
DISTILLERIES COMPANY LTD v. KARIYAWASAM AND OTHERS