CAKarolis v Wickremaratne193
WICKREMARATNECOURT OF APPEALRANJITH SILVA, J.
CA (REV.) 1689/2005DC MT. LAVINIA 870/96/MAUGUST 1, 2007MAY 21, 2008JUNE 17, 2008JULY 4, 2008
Civil Procedure Code – Section 24, Section 87, – Section 145- Trial – Plaintiffpresent – Attorney-at-Law absent – Dismissed – Inter parte or ex parte?Revision – Alternate remedy.
The plaintiff-petitioner instituted action seeking to recover a certain sum asdamages from the defendant-respondent. On a date fixed for trial, the plaintiffwas present but his Attorney-at-Law was absent, the application for a date bythe petitioner was refused and the Court dismissed the action.
The plaintiff without taking steps to follow the statutory remedy of appealing -moved in revision stating that (i) the judgment is contrary to law (ii) that Courthas erred in law by not granting the application for a date by the petitioner whowas present in Court (iii) the Court instead of directing/requesting or providingan opportunity to the plaintiff to proceed with the case opted to dismiss same.
It was contended by the plaintiff that, the learned District Judge failed to actunder Section 145 of the Code, as he had no power to dismiss the case, as itwas his duty to proceed to hear and decide the case.
Although the plaintiff-petitioner made an appearance in Court he couldnot have made any application or taken any steps in the absence ofhis Attorney-at-Law.
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The refusal to grant a postponement and the dismissal of the case hasto be treated as an order made in default of appearance and thisshould be treated as an ex parte order.
On the other hand if the lawyer was present and moved for a date but wasrefused it could be treated as an inter parte judgment.
The learned District Judge could not have directed the plaintiff toconduct the trial and proceed with the case in person as there was anattorney-at-law – Section 145 is not applicable.
Per Ranjith Silva, J.
“Where an attorney-at-law fails to appear in Court not due to his negligencebut because he was indisposed, in such a situation will the plaintiff beprevented from relying on Section 87(3) as it is not the plaintiff who reallydefaulted? But justice and fair play demand that in such a situation too theplaintiff should be allowed to proceed with Section 87 (3), to purge thedefault of the attorney-at law, if the attorney-at-law did not appear due tohis negligence, then the application to purge default shall fail and theattorney-at-law will have to take the responsibility for this default."
In the instant case the petitioner should have made an application topurge default under Section 87 (3), there is no valid reason let aloneexceptional circumstances to interfere with the impugned judgment byway of revision.
APPLICATION in revision from an order of the District Judge of Mt. Lavinia.
Cases referred to:
Podimenika v Dingiri Mahatthaya and others CA (Rev) 1491/2002CAM 14.5.2007.
Soysa v Silva and others 2002 2 Sri LR 235.
Mariam Bee Bee v Seyad Mohamed (1965) 68 NLR 36 at 38.
Jinadasa v Sam Silva 1994 1 Sri LR 222
Hameedv Deen and others 1988 2 Sri LR 266.
Seelawathie v Jayasinghe 1985 2 Sri LR at 266.
Carolis Appuhamy v Peter Singho 26 NLR 376.
Andradiev Jayasekera 1985 2 JUCR 204.
Gamini Abeysundara v Malalage Gunapala CA 676/2000 (App.) DCColombo 18322/L.
Isek Fernando v Rita Fernando and others 1999 3 Sri LR 29.
Mahinda Nanayakkara for plaintiff-petitioner.
Mauyra Gunawansa for defendant-respondent.
qAKarolis v Wickremaratne-j g5
(Ranjith Silva, J,)
July 04, 2008RANJITH SILVA, J.
The Plaintiff-Petitioner (hereinafter referred to as the Petitioner)instituted action bearing No. 870/96/M in the District Court of Mt.Lavinia against the defendant-respondent (hereinafter referred toas the Respondent) claiming inter alia a sum of Rs. 500,000/- fromthe respondent as damages caused to the petitioner.
The case took a long time during the preliminary stages as theparties and the Counsel defaulted in taking steps on numerousoccasions and once, as far back as 24.09.96 the case was fixed forex-parte trial. Later the ex-parte judgment was vacated and therespondent was allowed to file his answer and to proceed with thecase. Thereafter once again the parties defaulted at various stagesof the case and finally the case was re-fixed for trial for 24.02.2003.On 24.02.2003 both parties raised issues and thereafter the casewas re-fixed for further trial for 03.06.2003. On 03.06.2003 the trialcommenced and the petitioner in the course of his evidencemarked and produced P1 to P11 but did not conclude his evidence.Thereafter the trial was fixed for 01.09.2003 and on the said datethe trial was postponed due to an application for a date by Counselfor the respondent on personal grounds. The matter was fixed to beresumed on 13.11.2003. On 13.11.2003 the petitioner was cross-examined by Counsel for the respondent and the Court re-fixed thecase for further trial for 01.04.2004. On 01.04.2004 the case wasnot called as the Court officers were not available as they had gonefor election duty and the matter was re-fixed for 16.08.2004. On16.08.2004, the Attorney-at-Law who appeared for the plaintiff-petitioner revoked the proxy and tendered a fresh proxy and movedfor a date on the personal grounds of the Counsel. Thereafter theCourt re-fixed the matter to be resumed on 02.12.2004 and orderedthat it shall be the final date. On 02.12.2004 the learned AdditionalDistrict Judge was on leave and trial was re-fixed for 18.04.2005.When the matter came up for trial on 18.04.2005 the petitioner waspresent in Court but his registered Attorney-at-Law and the seniorCounsel was not present in Court. The petitioner under thecircumstances moved for a date but the Court refused to grant adate as there were no acceptable reasons, adduced to Court, bythe petitioner, to grant a date. By that order dated 18.04.2005 the
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learned trial Judge dismissed the said case. Aggrieved by the saiddecision of the learned District Judge, the petitioner filed notice ofappeal but failed to file the petition of appeal and thus failed tofollow up the appeal. The petitioner has alleged in his petition thathe could not file the petition of appeal and proceed with the appealbecause of his poor health and old age.
It was argued on behalf of the petitioner that the judgment of thelearned Additional District Judge of Mt. Lavinia in dismissing theaction was per se erroneous in law. It was submitted on behalf ofthe petitioner that there were exceptional circumstances thatwarranted the exercise of the revisionary jurisdiction of this Courtdespite the fact that the petitioner failed to exercise his right ofappeal. The Counsel for the petitioner urged inter alia the followinggrounds as constituting exceptional circumstances.
That the said judgment is contrary to law and against thebasic legal principles.
That the learned trial Judge had erred in law by not grantingthe application for a date by the petitioner who was presentin Court.
That the learned District Judge, instead of directing/requesting or providing an opportunity to the petitioner toproceed with the case opted to dismiss the same, etc.
The petitioner cited several cases namely, Podimenike v DingiriMahaththaya and othersCO, Soysa v Silva and othek2 Mariam BeeBee v Seyed Mohamed3) at 38, in support of their argument thatthere were exceptional circumstances to warrant the invocation ofthe Revisionary jurisdiction of this Court although the petitionerfailed to exercise the right of appeal.
If one were to assume that the judgment of the learned DistrictJudge dated 18.04.2005, dismissing the action was an inter-partesjudgment, the question arises whether the petitioner can maintainthis revision application against the said judgment when he had analternative and effective remedy, namely an appeal to the Court ofAppeal from the said judgment.
Therefore this Court has to examine carefully the impugnedjudgment delivered on 18.04.2005.
CAKaroJis v Wickremaratne197
(Ranjith Silva, J,)
Counsel for the petitioner contended that the learned DistrictJudge should have acted under section 145 of the Civil ProcedureCode, when the petitioner moved for a date on the ground that hisCounsel was absent. Section 145 of the Civil Procedure Codereads as follows:
"If any party to an action, to whom time has been granted failsto produce his evidence, or to cause the attendance of hiswitnesses, or to perform any other act necessary to the furtherprogress of the action, for which time has been allowed the Courtmay, notwithstanding such default, proceed to-decide the actionforthwith."
Counsel for the petitioner contended that according to section145 of the Civil Procedure Code the learned trial Judge had nopower to dismiss the case as it was his duty to proceed to hear anddecide the case when he refused to grant a postponement.
In other words the argument of the Counsel was that when theapplication for a postponement or adjournment made by thepetitioner who was present in Court was not allowed, the learnedDistrict Judge should have directed the petitioner to proceed withthe action and should have proceeded to hear and decide the case,instead of dismissing the action.
According to section 24 of the Civil Procedure Code anappearance of a party may be by an Attorney-at-Law. Once anAttorney-at-Law is duly appointed by the party concerned heforfeits his rights to tender and sign notices or to take any steps inthe case as long as the Attorney-at-Law is alive able and competentand his proxy remains valid.
In Jinadasa v Sam SilvaW it was held that if there is a oralhearing, then a party is entitled to be legally represented unless thelegislature expressly provided otherwise. Therefore unless thelegislature provides otherwise, a party can decide whether he willhimself go into Court or be legally represented in the exercise of hisright.
Once he so elects to have himself represented, he must take allthe steps in the action through that Attorney-at-Law. (Vide: Hameedv Deen and others<5)).
198Sri Lanka Law Reports[2008) 1 Sri L.R
In Seelawathie v Jayasinghd6) at 266 it was held that when a partyto a case has an Attorney-at-Law on record, such a party must takeall steps in the case through such Attomey-at-Law.
In the instant case although the plaintiff-petitioner made anappearance in Court he could not have made any application or takenany steps in the absence of his Attorney-at-Law. He could not haveproceeded with the trial, given evidence or called witnesses withoutthe assistance of his lawyer. He could not have in the first placemoved even for a date personally, perhaps, other than an applicationfor a date on behalf of his lawyer who was absent. Refusal to grant apostponement and the dismissal of the case has to be treated as anorder made in default of appearance and thus should be treated as anex-parte order. On the other hand if the lawyer was present andmoved for a date but was refused by the trial judge resulting in adismissal of the case that could be treated as an interpariesjudgment. Nevertheless in such a situation the trial Judge must givean opportunity to the Attorney-at-Law to proceed with the case if arequest is made in that behalf by the Attorney-at-Law.
The petitioner argued that when the petitioner moved for a date onthe ground that his Counsel was not present in Court to go on with thetrial, the learned District Judge should have directed the petitioner toproceed with the trial and then make a decision forthwith.
In support of this argument Counsel cited Carolis Appuhamy vPeter Singhd7 wherein it was held "where a party to an action hasbeen granted time to proceed certain evidence at the hearing, theCourt has no power to dismiss the action and it must be proceeded tohear as may be tendered on behalf of the party in default and decidedthe action forthwith".
In Carolis Appuhamy v Peter Singho (supra) the facts andcircumstances are different. In that case the learned Judge insistedthat the plaintiff should lead the evidence of an expert witness inaddition to the evidence already led by the plaintiff. The evidence theplaintiff intended to lead, as the Judge was of the view that it would befutile to record any further evidence in the absence of expertevidence. For that reason, when an application was made fora furtherdate to lead expert evidence the learned District Judge refused theapplication and dismissed the case. With respect I must state that theapproach of the learned District Judge in that case was obnoxious
£4Karolis v Wickremaratne199
(Ranjith Silva, J,)
and repugnant to the provisions of section 145 of the Civil ProcedureCode. In that case, the learned District Judge should have eitherallowed the application for a date to summon the expert to giveevidence or at least directed the plaintiff to present whatever theevidence the plaintiff intended to lead, even though it was the view ofthe learned District Judge that the plaintiff would not succeed withoutleading expert evidence. In the instant case obviously the learnedDistrict Judge did not act under section 145 of the CPC. In the instantcase the petitioner had not obtained a date, to produce any evidenceor to cause the attendance of his witnesses. It was merely fixed forfurther hearing. In the instant case the petitioner moved for a date notbecause he wanted a date to lead his own evidence or to summonwitnesses to give evidence but because his Counsel did not make anappearance in Court to conduct the case and because he could nothave conducted the trial personally, as there was a registeredAttorney on record. Therefore when the petitioner moved for a date itwas open to the District Judge, to either in his discretion, to allow adate subject to terms or refuse to grant a date and dismiss the case,but the learned District Judge could not have directed the plaintiff toconduct the trial and proceed with the case in person as there was anAttorney-at-Law on record. Hence the judgment of the learned DistrictJudge in dismissing the action cannot be branded as erroneous orillegal. (Vide ss. 82 & 87(1) of the Ci.P.C.)
It is apparent from the tenor of the language of the petition ofappeal and the written submissions of the Counsel for the petitionerthat the petitioner, made this application for revision on the premisethat the impugned judgment or order dated 18.04.2005 was an inter-partes judgment. If it were to be considered as an inter-partejudgment then the petitioner should fail in this application for revisionbecause the petitioner failed to disclose exceptional circumstances inorder to invoke the revisionary jurisdiction of this court when there wasan alternative remedy by way of an appeal available to him.
If the judgment were to be considered as inter-partes, perhaps onecould argue that the judgment is unreasonable or unfair, which ispurely a matter of discretion. In which event the petitioner should haveappealed against the said judgment. The petitioner could move inrevision only if the exercise of discretion was perverse or manifestlyillegal.
200Sri Lanka Law Reports 1 Sri L.R
Let us assume a situation where the Attorney-at-Law fails toappear in Court not due to his negligence but because he wasindisposed. In such a situation will the plaintiff be prevented fromrelying on section 87(3) of the Civil Procedure Code, as it is not theplaintiff who really defaulted? But justice and fair play demand that insuch a situation too the plaintiff should be allowed to proceed undersection 87(3) to purge the default of his Attorney-at-Law. If it is foundthat the Attorney-at-Law did not appear due to his negligence, thenthe application to purge default shall fail and the Attorney-at-Law willhave to take the responsibility for his default.
The petitioner moved for a date on 16.08.2004 and the matter wasfinally fixed for 02.12.2004. As the petitioner moved for a date on thatdate too, the learned District Judge even though he had the discretionto adjourn the hearing for good reasons, refused to grant further timeand dismissed the case. In the instant case the petitioner should havemade an application to purge default under section 87(3) of the CivilProcedure Code. Instead the petitioner opted to file this application forrevision. Therefore we cannot see any valid reason, let aloneexceptional circumstances to interfere with the impugned judgment byway of revision as the petitioner should have made an application tothe same Court under section 87(3) to have the said judgmententered upon default set aside.
It was held in Andradie v Jayasekera PereraW that the practicehas grown and hardened into a rule that where a decree or judgmenthas been entered exparte or on default of appearance and is soughtto be set aside, on any ground, application must in the first instancebe made to that very Court and that it is only where the finding of theDistrict Court on such application is not consistent with reason or theproper exercise of the judge's discretion or where he has misdirectedhimself on the facts or law that the Court of Appeal will grant theextraordinary relief by way of Revision or Restitutio Intergrum.
A distinction can be drawn between the various reasons for whicha plaintiff may default. It may be the failure on the plaintiff to appear inCourt or the failure on the part of his Attorney-at-Law to appear inCourt or the failure on the part of both the plaintiff and the Attorney-at-Law to appear in Court on the day fixed for the trial.
In the instant case the petitioner was present in Court but was notrepresented by his Attorney-at-Law. Therefore there was no proper
CAKarolis v Wickremaratne201
(Ranjith Silva, J,)
appearance on behalf of the petitioner. The presence of the petitionerin Court cannot be considered as an appearance as the petitionercouldn't have taken any action or steps on his behalf without hislawyer. For all purposes the so-called appearance has to be treatedas mere presence and not as an appearance. The converse is ratherdifferent. If the petitioner was absent and the Registered Attorney-at-Law had moved for a date on the ground that he was not well withoutexplaining the absence of his client and the learned District Judge haddismissed the case refusing to grant a postponement then thejudgment would be an inter partes judgment. In Don Gamini
Abeysundara v Mataiage Gunapala(9). The Attorney-at-Law movedfor a date on the ground that he was not well and not because theplaintiff was absent. The learned District Judge dismissed the case asthe plaintiff was absent. It was held that it was not an order made ondefault.
Per Gamini Amaratunge, J. "When an action is dismissed in thepresence of a party's lawyer after refusing an application for apostponement it is not an order made for default. The order dismissingthe action had been made inter partes. Such an order cannot be setaside under Section 87(3). The remedy for the plaintiff is a finalappeal. Therefore the purported application made by the plaintiff wasmisconceived in law and the learned District Judge was correct inrefusing the application of the plaintiff."
If the Attorney-at-Law had stated that he had no instructions andthat, he did not appear, it would have been a different kettle of fish.(Vide. Isek Fernando v Rita Fernando and others^10)).
For the reasons adumbrated by me, whatever the stand point fromwhich one looks at the issue as to the maintainability of thisapplication for revision namely whether the impugned Judgmentamounts to a dismissal of the action for non appearance of the plaintiffor a dismissal inter partes (default Judgment or an inter partesjudgment) I hold that the petitioner in any event cannot maintain thisapplication for revision.
I dismiss this application for revision with costs fixed atRs. 7500.00.
A.W.A. SALAM, J. – I agree.
KAROLIS v. WICKREMARATNE