In my opinion, if the learned judge was of the view that the applicationmade by the counsel for the 2nd defendant should be refused, the learnedjudge should have directed to proceed with the trial inter-partes.
In the case of Isek Fernando Vs. Rita Fernando and Another it washeld that:
Perusal of Section 24 of the Civil Procedure Codedemonstrates the fact that an appearance of a partymay be by an Attorney-at-Law. When a client requestsan Attorney-at-Law to make an application it is anapplication the Attorney-at-Law makes on behalf of theparty he represents for the due administration of justice.
When Court decides to refuse an application made bycounsel for the adjournment of proceedings the Court
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has only one option-inform the counsel that he shouldproceed with the trial inter-partes.
Appearance may be by the party in person or by hiscounsel or his registered Attorney, and where thedefendant is absent but is represented by counsel or byAttorney-at-Law and the Court is satisfied on theevidence adduced by the plaintiff, Court must enter afinal judgment and not an order Nisi. Judgment mustbe considered as being pronounced inter'partes and notex-parte.
The trial Judge erred in law by deciding to hold an ex-parte trial offending section 84 read with section 24 ofthe Civil Procedure Code.
Justice Jayasinghe who delivered the judgment is this caseat 33 made the following observations:
“When a client requests an Attorney-at-Law to makean application it is an application the Attorney-at-Lawmakes on behalf of the party he represents for the dueadministration of justice. Court will disallow anapplication only upon being satisfied that the applicationis not tenable in the circumstances. This is discretionaryand must be founded on sound reasoning. When courtdecides to refuse an application made by counsel for theadjournment of proceedings the Court has only oneoption. Inform the counsel that he should proceed withthe trial. If he decides to allow the application he canmake good the inconvenience caused to the other partyby the payment of appropriate costs. If the judge decidesto refuse the application then he is left with no option butto proceed with the trial as inter-partes."
In these circumstances, the learned Judge erred in law by fixing thecase for ex-parte trial without following the correct procedure which wouldhave been either to allow the application made by the coui isel for ii ie 2i iddefendant or to refuse the application and direct to proceed with the caseinter-partes.
2- CM 8099
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It appears from the above mentioned journal entry that the 2nddefendant’s registered Attorney-at-Law has revoked the proxy and therewas no legal representation for the 2nd defendant. The Court has thepower in terms of section 84, 91A and 143 to grant a postponement insuch an event. When such postponement are granted, the court can ordercosts for the opposing parties and can also impose terms. It is to beobserved that the Court has not imposed conditions, in the instant casesuch as that the case would be fixed for ex-parte trial if the costs orderedby the Court is not paid on or before the next date of trial. More over suchconditions are imposed with the consent of the parties.
It was held in the case of Piyaseeli vs. Prematilleke,5) that, “an orderthat the action would be dismissed if the plaintiff failed to pay nominatedcosts before a fixed date and time if made without consent of the partiesdoes not entitle the Court to dismiss the action where such costs are notpaid as stipulated.”
In the case of Calistus Perera Vs. Nawanage<6) the Supreme Courtconsidered whether a trial judge who allows a party’s application for apostponement of the trial, on the terms that he shall pre-pay costs beforethe next date of trial, has the power to make and implement an order thatjudgment will be entered against him if he fails to pay those costs, evenwhere he has not consented to such order. Justice Mark Fernando afteranalysing the relevant sections 82, 91A and 143 of the Civil Procedure

Accordingly the order made by the Judge fixing the case for ex-partetrial is set aside.
With regard to the second question for determination, the learned counselfor the plaintiff submitted that the 2nd defendant has signed the caserecord agreeing to the order of prepayment of costs and thereby waivedthe right to be heard if she defaulted in the payments of the said costs asdirected and agreed upon.
The relevant part of the journal entry No. 45 dated 12.01.2004 readsthus :
Kandasamy Vs. Kandasamy (Wimalachandra, J.)
Code and after considering all the relevant authorities held that; sections82 and 143 of the Civil Proceduere Code confer only a judicial discretionand the scope of that discretion-even if seemingly unfettered – is limited bythe purpose for which it was conferred ; to compensate for the expense,delay and inconvenience occasioned by the postponement; but not toaffect the substantive rights of the parties in the subject matter of thelitigation. Section 91A introduced by Law No. 20 of 1977 does not grant,even by implication, a power to the Court to dispense with adjudication.The section is a general provision intended to deal with various acts andsteps in the proceedings. It was further held :
"Nowhere does the Code confer on a judge the power togive judgment against a party merely because he fails to paycosts without an adjudication on the merits becauseadjudication is the essence of judicial duty, the purpose forwhich courts exist.
Where the court allows a party’s application for apostponement of the trial on the terms that he shall pre-paycosts before the next trial date* the court has no power toimplement an order that judgment will be entered against himif he fails to pay those costs where he has not consented tosuch order.”
The learned counsel for the plaintiff relied on the case of FrancisWanigasekera Vs. Pathirana(T) for his contention that an agreement topre-pay costs on or before a particular date and the signing of the caserecord, it becomes incumbent on the party signing the case record, toduly pay the same, or to suffer the necessary consequences of forfeitingthe right to be heard. The learned counsel submitted that it was perfectlyjustified in law for the learned Judge to fix the case for ex-parte trial uponthe 2nd defendant failing to pay the costs, as undertaken by her.
The facts in Francis Wanigasekera's case (supra) are different from thefacts in the case before us. In that case the 2nd defendant-appellant agreedto the prepayment order.
However, in the instant case there was no condition that the case wouldbe fixed ex-parte if the cost was not paid on or before the next date, andthere was no agreement between the parties that the case would be fixed
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for ex-parte trial against the 2nd defendant if the exists were not pre-paid.Accordingly, the Court is not empowered to fix the case for ex-parte trial if thedefendant fails to pay costs where she has not consented to such an order.
In any event the law with regard to this question has been now settledby the decision in the Supreme Court case of Calistus Perera vs.Nawanage (Supra) where it was held that the trial judge had no jurisdictionto give judgment for the plaintiff merely because the defendant has failedto pre-pay the costs ordered without the defendant’s consent.
In the circumstances, I am of the view that the learned District Judgeerred in law when she decided to fix the case for ex-parte trial as againstthe 2nd defendant for non-payment of prepaid costs.
The next question for decision in this appeal is whether the filing ofphotocopies of the proceedings of the original case record of the DistrictCourt which are not certified by the Registrar, but only certified by theregistered Attorney-at-Law amounts to non-compliance of Rule 46 of theSupreme Court Rules.
Rule 46 of the Supreme Court Rules is identical to Rule 3 of the Courtof Appeal (Appellate Procedure) Rules 1990.
The learned counsel for the plaintiff submitted that the documentsmarked P1, P4, P5, P6 and P10, which are annexed to the 2nd defendant’sapplication, are not duly certified copies certified by the Registrar of theDistrict Court of Mount Lavinia.
The learned counsel for the 2nd defendant submitted that the 2nddefendant did not receive the certified copies although she applied for thesame. An application for leave to appeal has to be filed within 15 days ofthe impugned order. Therefore it often happens that the parties may not beable to obtain certified copies of the documents, may be due toadministrative difficulties, to be filed along with the application. It is to benoted that the 2nd defendant had sought the permission of Court to tenderthe certified copies as soon as they were made available to the 2nddefendant. (Vide paragraph 14 of the petition). The 2nd defendantsubsequently obtained the certified copies and made them available toCourt when the matter was supported on 31.05.2004. It is to be observedthat he had filed a motion on 28.05.2004 and tendered to the Registrythe certified copies of the documents marked as P2, P3, P7, P8, P9and P10.
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It was held in the case of Rasheed AH Vs. Mohamed Ali(8) that theCourt does not expect a person to do the impossible and in a situationwhere the parties are left no time to obtain documents as required by Rule46.in view of the great urgency of the matter the Court may permit thepetitioner to comply with the requirement subsequent to filing of the petition.Although the Rule 46 has a mandatory effect any omission can be rectifiedat a later stage with permission of Court.
In the instant case the 2nd defendant mentioned in her petition that dueto reasons beyond her control certified copies could not be obtained intime and hence sought the permission of Court to tender them subsequently.
In the case of Kiriwantha Vs. Navaratne® the Supreme Court held that“a failure to comply with the rule is curable by subsequent compliancewhere the Court holds that initial compliance was impossible by reason ofcircumstances which are beyond the control of the applicant." MarkFernando, J. who delivered the judgment made the following observations:
“The weight of authority thus favours the view thatwhile all these rules (Rules 46,47,49.35) must be compliedwith the law does not require or permit an automaticdismissal of the application or appeal of the party indefault. The consequence of non-compliance (by reasonof impossibility or for any other reason) is a matter fallingwithin the discretion of the Court, to be exercised afterconsidering the nature of the default, as well as excuseor explanation therefor, in the context of the object ofthe particular Rule.”
In the circumstances, the 2nd defendant is not guilty of non compliancewith Rule 3(1) of the Court of Appeal Rules and there is no irregularitywhich would disable the 2nd defendant from maintaining this application.
For these reasons I have given I allow the appeal and set aside theorder of the learned District Judge dated 06.05.2004. The 2nd defendant isentitled to a sum of Rs. 10,000 as costs of this appeal.
ANDREW SOMAWANSA, J. (P/CA) — / agree.
Appeal allowed.