fjqJeevani Investments (Pvt) Ltd. v Wijesena Perera207
JEEVANI INVESTMENTS (PVT) LTD.vWIJESENA PERERASUPREME COURTJAYASINGHE, J.
MARSOOF, PC, J.
SC 108/2006SC SPL LA 240/2005CA 886/94 (F)
DC COLOMBO 15513/LJULY 19, 2008
Civil Procedure Code – section 24, section 27(1), section 27(2) – Administration ofJustice Law 44 of 1973 – section 326(1) – Who could file a relisting application? -Is it only the registered attorney who has authority?
In applications commenced in the Court of Appeal such as Relistingapplications, applications for Leave to appeal notwithstanding lapse of time,Leave to appeal applications, Revision applications, a party is entitled toappoint a registered attorney other than the registered attorney in theoriginal court – on record.
A final appeal commences with the filing of a notice of appeal and thepetition of appeal in the original court by the registered attorney on record,appeal proceedings in the Court of Appeal are a continuation of theproceeding commenced in the original court.
APPEAL from a judgment of the Court of Appeal.
Cases referred to:
Letchemanan v Christian 4 NLR 323.
Seelawathiev Jayasinghe 1985 2 Sri LR 286.
Romanis v Revena (1881) 4 SCC 61.
Wasuv Helanahamy (1881) 4 SCC 48.
Fernando v Fernando 1997 3 SLR 1.
Saravanapavan v Kandasamydurai 1984 1 Sri LR 268.
Bank of Ceylon v Ramasamy CALA 79/80 DC Chavakachcheri 5447 CAM24.3.81.
Gunasekera v Zoysa 52 NLR 357.
Asoka Fernando with Manik Gamage for appellant.
Sanath Jayatilleke for respondent.
208Sri Lanka Law Reports[2008) 1 Sri L.R
February 28, 2008NIHAL JAYASINGHE, J.
Jeewani Investments Ltd. of Alawwa, which was the 3rd defendantin DC Colombo case No. 15513/L, being dissatisfied with the judgmentof the District Court of Colombo – filed appeal No. CA 886/94(f) in theCourt of Appeal. This appeal was pending in the Court of Appeal from1994 and subsequently the 3rd defendant-appellant (hereinafter calledthe appellant) came to know that the Court of Appeal, on 18.11.1996without notice to the appellant, had rejected the said appeal in terms ofthe Supreme Court (Court of Appeal – Appellate Procedure Copies ofRecords) Rules of 1978 for the appellants failure to deposit fees for thepreparation of the copies of the record. The appellant thereafter filed anapplication dated 19.11.2003 in the Court of Appeal moving to have theorder of 18.11.1996 set aside and for an order for re-listing the appealfor hearing.
The 2nd defendant-respondent objected to the appellant's re-listingapplication on the ground that the application has been filed by anattorney-at-law other than the registered attorney-at-law on record forthe appellant's appeal. The appellant's registered attorney-at-law inD.C. Colombo case No. 15513/L was Wijesinghe Associates. Therelisting application dated 19.11.2003 has been filed by attomey-at-lawK.D. Epitawela, upto the that time, the proxy granted by the appellant toWijesinghe Associates remained unrevoked in the District Court record.This is the undisputed factual situation.
In the Court of Appeal, the position of the appellant with regard to thepreliminary objection that the re-listing application has been filed by anattorney other than the registered attorney for the appellant and as suchthe application was not properly constituted and bad in law, was that there-listing application was a distinct and a separate application from theappeal of the appellant. The Court of Appeal having considered thesubmissions of both parties and the provisions of section 27(1) and (2)of the Civil Procedure Code and the cases of Letchemanan vChristiari^ and Seelawathie v Jayasinghd2), held that the objectiontaken up by the respondent that the filing of the relisting applicationthrough an attorney-at-law other than the registered attorney-at-law onrecord in the original court is not permissible in law and that such anapplication is not a proper application on which a court could act is a
5CJeevani Investments (Pvt) Ltd. v Wijesena Perera209
(Nihal Jayasinghe, J.)
valid legal objection. Accordingly the Court of Appeal rejected theappellant's relisting application.
This Court has granted special leave to appeal against the judgmentof the Court of Appeal. The question to be decided in this appeal iswhether an attorney-at-law who is not the registered attorney-at-law onrecord in the original court can file a relisting application in the Court ofAppeal and whether such an application filed in that manner is a validapplication in law. Both parties have made oral submissions on thisquestion of law and also have filed written submissions.
Section 24 of the Civil Procedure Code enacts that, "Anyappearance, application or act in or to any court, required orauthorised by law to be made or done by a party to the action orappeal in such court, may be made or done by the party in personor by his recognised agent or by a registered attorney duty appointedby the party or such agent to act on behalf of such party."
Section 27(1) of the Code provides that the appointment of aregistered attorney to make an appearance or application, or to do anyact as aforesaid, shall be in writing signed by the client and shall be filedin Court. Section 27(2) provides that such written instrument when sofiled –
"shall be in force until revoked with the leave of the court and afternotice to the registered attorney by a writing signed by the client andfiled in court, or until the client dies, or until the registered attorneydies, is removed, or suspended or otherwise becomes incapable toact, or until all proceedings in the action are ended and judgmentsatisfied so far as regards the client."
It is a well settled rule, as far back as from 1881 (even before thepresent Civil Procedure Code was enacted in 1889) that a proctor, otherthan the proctor on record for a party, cannot act on behalf of the partyand the acts done by a proctor other than the proctor on record areinvalid.
Romanis v Revena<3), Wasu v Helanaham/4'). Even after theenactment of the Civil Procedure Code, this rule has been consistentlyfollowed. When there is a registered attorney on record, even the partyhimself cannot act on his own behalf and that he must act through hisregistered attorney. See Fernando v Fernandas, and the cases cited
210Sri Lanka Law Reports(2008] 1 Sri L.R
therein. The learned counsel for the respondent, relying on the long lineof decisions referred to in his written submissions, argued that it is notopen for an attorney-at-law other than the registered attorney on recordto file a relisting application and that an application filed in that manneris invalid.
On the other hand, the learned counsel for the appellant argued thata relisting application is separate and distinct from an appeal which is acontinuation of the action or proceedings commenced in the originalcourt. The learned counsel contended that with the rejection of theappeal the proceedings of the case came to an end and what was leftwas the execution of the decree, which is a matter to be pursued in theoriginal court. He contended that a relisting application is an incidentalapplication, commenced in the Court of Appeal seeking the indulgenceof the Court of Appeal and as such it is permissible for an attorney-at-law who is not the registered attorney on record in the original court tofile such an application. In support of his contention he cited thejudgment of a Divisional Bench of the Court of Appeal inSaravanapavan v Kandasamydurafi).
In that case, the question of law referred for the decision of theDivisional Bench was whether in a leave to appeal application filed inthe Court of Appeal in terms of section 754(2) read with section 756(2)of the Civil Procedure Code, a proxy filed by an attomey-at-law who isnot the petitioner appellant’s attorney in the original court can be a validproxy and as such constitute a valid leave to appeal application.
Seneviratna, J. (P/CA), (who later graced the Bench of this Court),with the agreement of the other two judges held that in a leave to appealapplication which originates in the Court of Appeal the proxy can be filedeither by the registered attorney in the original court or by any otherattorney-at-law. The reasoning of Seneviratna, J. was that unlike a finalappeal, the proceedings in a leave to appeal application originate in theCourt of Appeal and as such a party can appoint a registered attorneyother than the registered attorney in the original court for the purpose ofa leave to appeal application made in the Court of Appeal.
In the course of his judgment, Seneviratna, J. referred to the decisionof the Court of Appeal in Bank of Ceylon v Ramasamyi7), where the Courtof Appeal came to a similar conclusion upon an interpretation of therelevant parts of sections 24 and 27(1) of the Civil Procedure Code.
SQJeevani Investments (Pvt) Ltd. v Wijesena Perera211
(Nihal Jayasinghe, J.)
Section 24 of the Civil Procedure Code enacts that "Anyappearance, application, or act in or to any court, may be
made or done by the party in person, orby a registered attorney
duly appointed by the party" (emphasis mine).
Section 27(1) of the Civil Procedure Code provides that,
"The appointment of a registered attorney to make any appearanceor application, or do any act as aforesaid shall be in writing signedby the client and shall be filed in Court."
When the relevant parts of the two provisions quoted above are readtogether, it is clear that any application to any Court may be made by aregistered attorney duly appointed by the party in writing and that suchwriting shall be filed in Court. A leave to appeal application, though it isconnected to proceedings pending in an original court, is not anapplication commenced in the original Court but commenced in theCourt of Appeal and sections 24 and 27(1) of the Civil Procedure Codeenable a party to appoint a registered attorney for the purpose of suchapplication. There is no requirement that the registered attorney soappointed shall be the same registered attorney on record for theproceedings in the original court. Unlike a leave to appeal application afinal appeal commences with the filing of the notice of appeal and thepetition of appeal in the original court by the registered attorney onrecord and the original court thereafter transmits the record to the Courtof Appeal and appeal proceedings in the Court of Appeal are acontinuation of the proceedings commenced in the original court.
In support of his view that in a leave to appeal application whichoriginates in the Court of Appeal a party may appoint a registeredattorney who is not the registered attorney in the original court,Seneviratna, J. referred also to the practice of the Court of Appealcommencing from the date i.e. 1.1.1974 on which date theAdministration of Justice Law No. 44 of 1973 came into operation.Section 326(1) of the AJL brought in a new provision relating to leave toappeal applications. The Civil Procedure Code of 1889 did not haveprovision similar to section 326(1) of the AJL. Section 754(2) of the CivilProcedure Code presently in force is similar to section 326(1) of the AJL(with a slight modification) Seneviratna, J. held that from 1.1.1974 onwhich date the AJL came into operation it has become a usual andinveterate practice for the Court of Appeal to permit another attorney-at-
212Sri Lanka Law Reports 1 Sri L.R
law to file proxy in a leave to appeal application and this practice hasbecome a cursus curiae of the Court of Appeal.
The test adopted by Seneviratna, J. to examine the validity of theproxy (the court in which the proceedings commence) is a good guidewhich does not involve any breach of the law – that is a breach of theprovisions of the Civil Procedure Code. Although this Court is not boundby a decision of the Court of Appeal I treat Seneviratna, J.'s decisionwith utmost respect and am persuaded to adopt it with agreement.
Some applications though they have a connection with proceedingsin an original court, commence in the Court of Appeal. The formerSupreme Court in Gunasekera v de Zoyssfi) has held that a revisionapplication in a civil case can be initiated by a proctor other than theproctor whose proxy was filed in the original court. For the reasons setout above I hold that in other applications commenced in the Court ofAppeal such as relisting applications and applications for leave toappeal notwithstanding lapse of time, which have a bearing on theproceedings taken in an original court, a party is entitled to appoint aregistered attorney other than the registered attorney in the originalcourt. I therefore answer the question of law submitted to this Court inthe affirmative and accordingly set aside the judgment of the Court ofAppeal dated 20.9.2005 rejecting the appellant's relisting application.
Having considered the material placed before this Court, I am of theview that it would be in the interest of justice to set aside and vacate theorder made by the Court of Appeal on 18.11.1996 rejecting the 3rddefendant appellant's appeal. The order of the Court of Appeal dated18.11.1996 is hereby set aside and the relisting application is allowed.The Court of Appeal is hereby directed to hear and decide the 3rddefendant-appellant's appeal on the merits.
AMARATUNGA, J.-I agree.
MARSOOF, (P/C) J.-I agree.
Relisting application allowed.
JEEVANI INVESTMENTS (PVT) LTD . v. WIJESENA PERERA