Wanigaratna v. Dissanayake
COURT OF APPEALWEERASURIYA, J. ANDDISSANAYAKE, J.
CA NO. 302/99 (F)
DC GAMPAHA NO. 41983/DJANUARY 31, 2001MARCH 03, 2001MAY 05, 2001 ANDAUGUST 20, 2001
Civil Procedure Code – s. 27 and s. 755 ( 1) – Revocation of proxy – Revocationto be effected with leave of Court after notice to registered Attorney – Doess. 27 invest the Court with a real discretion as to whether or not the revocationof proxy should be allowed.
On 17. 06.1999, the registered Attorney of the petitioner had filed a motion seekingto have certain corrections effected, and to have the case called on 15. 06. 1999.The District Court had made order to call the case on 15. 06. 1999.On 15. 06. 1999 without corrections being effected order has been made to callthe case on 22. 06. 1999. A notice of Appeal, signed by the respondent himselfon 24. 05. 1999, has been tendered. A new proxy dated 24. 05. 1999 journalisedon 27. 05. 1999 (JE8) had been tendered. On 17. 06. 1999 the new registeredAttorney of the respondent had tendered the petition of Appeal. No motion hadbeen tendered on 20. 05. 1999 corresponding to the entry dated 20. 05. 1999made on the margin under JE7, that the proxy had been revoked.
A party dissatisfied with his registerted Attorney is at liberty to revoke theproxy, and appoint another Attorney. But, in revoking the proxy, a partyhas to follow the procedure prescribed in s. 27 (2).
Revocation must be effected with the leave of court and after notice tothe registered Attorney.
The code does not prescribe the grounds on which leave for revoke aproxy could be given or withheld.
Sri Lanka Law Reports
 2 Sri L.R.
The position of an Attomey-at-Law and a client is merely that of an agentand principal, and therefore an Attorney-at-Law cannot insist on actingfor the client against his wishes.
Per Weerasuriya, J.
“It is not open or anyone to state that the District Judge has not seenthe marginal entry, under JE7 that an officer working at the Registry had madeentry that the proxy has been revoked. JE8 dated 27. 05. 1999 signed bythe District Judge would reveal that a new proxy was tendered. Thereafter,the DJ has accepted the new proxy dated 24. 05. 1999 along with the Noticeof Appeal signed on 21. 05. 1999 by the appellant and the receipt in respectof security.
AN APPLICATION for leave to appeal.
Case referred to:
1. Fernando v. Mathew – 15 NLR 88.
S. C. B. Walgampaya with Mahinda Nanayakkara for defendant-respondent-petitioner.
M. S. A. Saheed for plaintiff-appellant-respondent.
Cur. adv. vult.
August 20, 2001.
By this application the defendant-respondent-petitioner (hereinafterreferred to as the petitioner) is seeking to set aside the order madeby this Court on 09. 11. 1999, on the basis that factual position onwhich the order was rested, is incorrect.
The order dated 09. 11. 1999 was made following an applicationby way of a motion by the petitioner, praying for an order to rejectthe notice of appeal on the ground that it was signed by the plaintiff-appellant-respondent (hereinafter referred to as the respondent) himselfwhen there was an Attorney-at-Law on record.
Wanigaratna v. Dissanayake (Weerasuriya, J.)
This Court came to a finding that the respondent had signed the 10notice of appeal after revocation of the proxy on 17. 05. 1999, givento Lalith Jayasuriya, Attorney-at-Law.
The present application has been based solely on the observationsby the Additional District Judge that, the respondent had failed totender a motion on 20. 05. 1999 in respect of his application to revokethe proxy. Based on this observation learned Counsel for the petitionercontended that no revocation papers had been filed by the respondenton 20. 05. 1999 and that it had been surreptitiously introduced intothe record at some point after tendering the notice of appeal.
In examining the above allegation, it is useful to recall that this 20was not the position of the petitioner when the application by wayof a motion was filed in this Court seeking an order to reject the noticeof appeal. On that occasion the sole ground relied on by the petitioner,as evident from the motion was that, the respondent had signed thenotice of appeal when the proxy given to Lalith Jayasuriya was inforce. The relevant portion of the motion reads as follows:
"…the said appeal does not comply with the imperative requirementsof section 755 (1) of the Civil Procedure Code in that notice of appealhas been signed by the plaintiff-appellant when the proxy given byhim to Lalith Jayasuriya, Attorney-at-Law, was still on record and 30not revoked."
In this regard the question may be posed initially as to why theAttorney-at-Law on record for the petitioner, failed to bring this matterto the notice of the District Judge and initiate an inquiry to ascertainthe truth or otherwise of this allegation.
On 07. 06. 1999, the registered Attorney-at-Law of the petitionerhad filed a motion seeking to have corrections effected in the proceedingsheld on 05. 12. 1999, and to have this case called on 15. 06. 1999,
Sri Lanka Law Reports
 2 Sri L.R.
whereupon the District Judge made order to call this case on 15. 06.1999. But, however, on 15. 06.1999, without corrections being effected 40in terms of the said application, order had been made to call thiscase on 22. 06. 1999.
Meanwhile, on 17. 06. 1999, new registered Attomey-at-Law of therespondent had tendered the petition of appeal.
Therefore, it would be manifest that after the tender of the noticeof appeal on 24. 05. 1999, (which had been signed by the respondenthimself on 21. 05.1999) up to 17. 06.1999, the petitioner had sufficienttime to ascertain whether the application for revocation of the proxyhad been surreptitiously introduced into the case record. The applicationfor revocation of the proxy bears the date stamp of 20. 05. 1999. 50In the circumstances, the allegation that the revocation papers hadbeen surreptitiously introduced into the case record is clearly a belatedone, and could be justifiably be described as an after thought.
As observed earlier, learned Counsel for the petitioner has basedhis allegation from the observation by the Additional District Judgethat no motion had been tendered on 20. 05. 1999 correspondingto the entry dated 20. 05. 1999 made on the margin under journalentry No. 7 that the proxy has been revoked. As observed in theorder dated 09. 11. 1999 this marginal note presumably would havebeen made by the subject clerk. If one really cares to identify this 60«officer, one would be able to do so by reference to a later marginalnote dated 03. 01. 2001 under journal entry No. 12.
On a close examination, it would be apparent that signaturesappearing under both entries are similar. It would be vital to note thatAdditional District Judge has observed beside the absence of an entryrelating to the application to revoke the proxy, the motion relating tothe new proxy and the motion relating to the deposit of security havenot been entered in the motions register.
CAWanigaratna v. Dissanayake (Weerasuriya, J.)335
One basic feature that has to be borne in mind is that, with therevocation of the proxy given to Lalith Jayasuriya, the respondent hadno legal assistance till a new Attorney-at-Law was appointed as evidentfrom the new proxy dated 24. 05. 1999 and journalised on 27. 05.1999 under journal entry No. 8. In the circumstances, the questionarises whether it is legally permissible to expect from the respondent,to file a written motion and have it entered in the motions registerwhen the application for revocation was presented to Court whichbears on its face the date stamp of 20. 05. 1999.
The absence of an accompanying written motion and the failureto enter the application for revocation of the proxy in the motionsregister, in my view, would not vitiate what would otherwise be a validapplication, in circumstances where a party had no assistance froman Attorney-at-Law. A party dissatisfied with his registered Attorney,is at liberty to revoke the proxy filed in Court and appoint anotherAttorney to act for himself. However, in revoking the proxy, a partyhas to follow the procedure prescribed by section 27 (2) of the CivilProcedure Code.
Section 27 (2) stipulates that revocation must be effected with theleave of Court and after notice to the registered Attorney. In the caseof Fernando v. Mathew it was held that section 27 of the CivilProcedure Code invests the Court with a real discretion as to whetheror not the revocation of a proxy should be allowed.
It must be noted that, in that case all four executors concurredin the first proxy given to Messers Prins and Swan at the commencementof the proceedings, but subsequently two executors sought to revokethe proxy given to Messers Prins and Swan. This application wasresisted by the other two executors and District Judge having takeninto consideration, the possible deadlock that might result from separaterepresentation refused the application for revocation of the proxy.
The facts of the instant case are different, in that there was noobjection to the application by the Attorney. Therefore, the Court would
Sri Lanka Law Reports
 2 Sri L.R.
have granted leave on the request of the respondent. The CivilProcedure Code does not prescribe the grounds on which leave torevoke a proxy could be given or withheld. The position of an Attorneyand a client is merely that of an agent and principal and thereforean Attorney cannot insist on acting for the client against his wishes.
In view of the above material, there would have been no difficultyfor the respondent to get leave from Court for the said revocation.But, going by the marginal note dated 20. 05. 1999 under journalentry No. 7 an officer working at the registry had made the entry thatproxy has been revoked.
It is not open for anyone to state that District Judge has not seenthis marginal note. The journal entry No. 8 dated 27. 05. 1999 signedby the District Judge would reveal that a new proxy was tendered.Therefore, the District Judge had accepted a new proxy dated24. 05. 1999 along with the notice of appeal signed by the respondenton 21. 05. 1999 and the receipt in respect of furnishing security.
There was no material to suggest that the District Judge haswithheld his discretion to grant leave for the said revocation. Thiswould be a clear manifestation that the District Judge had impliedlygiven leave for the revocation of the earlier proxy.
In the light of the above circumstances, it is not possible to acceptthe proposition that order delivered on 09. 11. 1999 was rested onincorrect facts.
For the foregoing reasons, I am of the view that, there is no meritin this application. I dismiss this application with costs fixed atRs. 2,000.
DISSANAYAKE, J. – I agree.
WANIGARATNA v. DISSANAYAKE