Sri Lanka Law Reports
(2006) 1 Sri L. R.
ALIMA UMMAvsSIYANERISCOURT OF APPEAL,
C. KURUNEGALA 5538/LNOVEMBER 12,2005
Civil Procedure Code, sections 27,87(B) and 87( 1)(3)-Plaintiff absent – Counseland registered attorney present – Dismissal of action under section 87(1) – Is itlawful?
On the trial date the plaintiff was absent and her registered attorney andcounsel were present and were ready to start the plaintiff’s case. The objectiontaken by the defendant that since the plaintiff has failed to appear, the actionhas to be dismissed under section 87(1) was upheld.
The plaintiff moved in revision.
(i) In terms of section 24 of the Code, the registered attorney or an attorneyat law instructed by the registered attorney can represent a party to theaction in court. If the registered attorney is in court and represents theparty, that is an appearance for the party even if the party is not physicallypresent in court. Court cannot dismiss the action for the absence of theparty.
APPLICATION in revision from the order of the District Court of Kurunegala.Case referred to:
1. Anandappa Chettiar vs Sanmugam Chettiar (DB) 33 NLR217
Alima Umma vs Siyaneris (Amaratunga, J ,)
Upali de Almeida with Anna de Almeida for plaintiff respondent.Jacob Joseph for defendant respondent
October 15, 2004GAMINI AMARATUNGA, J,
This is an application to revise two orders made on 26.02.2001 and22.05.2002 by the District Court of Kurunegala. The plaintiff filed actionagainst the defendant to recover possession of the premises she had letto the defendant. The position of the defendant was that the propertybelonged to him by virture of prescriptive possession. After issues wereframed the trial was fixed for 26.02.2001. On that day the plaintiff did notattend but her registered attorney and counsel represented her in court.The plaintiff’s witnesses too were present and the counsel for the plaintiffwas ready to start the plaintiff’s case. The counsel for the defendant hassubmitted that since the plaintiff has failed to appear, the action had to bedismissed under section 87(1) of the Civil Procedure Code. The learned■ counsel for the plaintiff had pointed out to Court the provisions of Section27 of the Code, but the learned Additional District Judge had dismissedthe plaintiff’s action under Section 87(1) of the Code.
Thereafter, the plaintiff has tendered a notice of appeal. Having giventhe notice of appeal, the plaintiff has also filed an application under Section87(B) to have the order purported to have been made under Section 87(1)set aside and also to get the order set aside on the basis that the saidorder had been made per incuriam and that under Section 839 of theCode, the Court had power to set is aside.
The learned District Judge had held an inquiry into the application. Thelearned District Judge in his order has stated that since the appearance ofthe registered attorney and the counsel was an appearance for the party,it was not open to the plaintiff to seek relief under Section 87(3) of theCode. This is a correct conclusion. However in fairness to the attorney atlaw who filed the application under Section 87(3) it must be stated that theapplication under Section 87(3) has been made in view of the learnedAdditional District Judge’s specific reference in her order to Section 87(1).The learned District Judge has also come to the conclusion that the orderof the Additional District Judge was rigt an order made per incuriam, andthat he had no jurisdiction to set it aside. Accordingly, the application was
Sri Lanka Law Reports
(2CC6) 1 Sri L R.
dismissed by order dated 22.05.2202. The plaintiff has filed this revisionapplication on 02.08.2002 seeking to have orders dated 26.02.2001 and22.05.2002 set aside.
In the written submissions filed in this Court on behalf of the defendantit is stated that since the revision application has been made more thanone year after the order of 26.02.2001, the plaintiff was guilty of laches andaccordingly she is not entitled to any relief by way of revision.
In terms of Section 24 of the Civil Procedure Code, the registered attorneyor an attorney at law instructed by the registered attorney can represent aparty to the action in Court. If the registered attorney is in Court andrepresents the party in Court, that is an appearance for the party even ifthe party is not physically present in Court. Andiappa Chettiar vsSanmugam ChettiarIn such a situation a Court cannot dismiss theaction for the absence of the party.
In the instant case the Court’s order dismissing the action of the plaintiffunder Section 87(1) was clearly wrong. In making its order the Court hasturned a blind eye to Section 24 of the Code, cited by the learned counselfor the plaintiff, to show that the situation did not come within Section87(1). By the Court’s failure to consider the legal submission made by thecounsel for the plaintiff and by the acceptance of the wrong legal submissionmade by the counsel for the defendant, the Court has brought into existencea wrong order which has caused injustice and grave prejudice to the plaintiff.This Court’s revisionary powers and inherent powers are wide enough toremedy the injustice caused to the plaintiff by the wrong order made byCourt.
The learned District Judge who made the order dated 22.05.2002, wasrightly of opinion that in the circumstances that existed on 26.02.2001,the order dismissing the plaintiff’s action under Section 87(1) was wrong.However he has declined to interfere with that order on the ground that hedid not have jurisdiction to set it aside as it was not an order made perincuriam. However, as I have pointed out earlier the learned AdditionalDistrict Judge’s order dismissing the action under Section 87(1) had beenmade without considering a clear provision of Law, that is Section 24 ofthe Code. To that extent it is an order made per incuriam.
For the reasons set out above, I hold that the plaintiff petitioner is entitledto the relief claimed by this application. Accordingly, I allow the revision
Ediriweera vs Attorney General (Abrew, J.)
application and set aside the order dated 22.05.2002 and the order of
dismissing the plaintiff’s action and make order restoring theplaintiff’s case to the trial roll. The learned District Judge of Kurunegala ishereby directed to proceed with the action from the point it was on
The defendant-respondent shall pay a sum of Rs. 10,000 tothe plaintiff-petitioner as costs of this revision application and dependingon the outcome of the action this cost is to be recovered or set off at theend of the action.
ALIMA UMMA vs. SIYANERIS