CARanjith Perera and Another v377
Dharmadasa and others
RANJITH PERERA AND ANOTHERv
DHARMADASA AND OTHERSCOURT OF APPEALSALAM, J.
CA 1754/2004DC HORANA 5387/PJANUARY 8, 2008
Partition Law 21 of 1977 – Section 48 (4), Joint statement of claim – Trial date- Registered Attorney absent – One claimant taking part in the proceedings -Sections 24, 27(2) Civil Procedure Code – Applicability – Procedural Law – Itsimportance – Investigation of title? – Permission to conduct his own case – Notrecorded? – Fatal?
The 3rd and 4th defendants-petitioners who had jointly nominated a registeredAttorney-at-law and filed a joint statement of claim sought to revise the judgmentand the interlocutory decree, on the basis that, they were unrepresented at thetrial, and that the trial Judge should not have put the 4th defendant-petitioner intothe witness box without legal assistance and permitted him to cross examinewhen he had a registered attorney on record. The petitioners also allege that,there was no investigation of title, and that, there was no settlement.
As long as a party to a case has an Attorney-at-law on record, it is theAttorney-at-law on record alone, who must take steps and also whom theCourt permits to take steps.
When the 4th defendant-petitioner attended Court without being representedby his Attorney-at-law or a Counsel (Section 27(3)) the trial Judge shouldhave considered him as a party having failed to appear at the trial as theCourt has chosen to do so in the case of the 3rd defendant-petitioner.
Further there is no indication pointing to the 4th defendant-petitioner havingsought permission of Court to cross-examine the plaintiff or to present hiscase in person either.
Per Abdul Salam, J.
"As far as the 4th defendant-petitioner is concerned by improperly extending theright of audience to him at the trial, the trial Judge has proceeded on the
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basis that the judgment and interlocutory decree were entered interpartes,this procedure wrongly adopted by Court has deprived the 4th defendant-petitioner of the right to invoke Section 48 (4)°.
The trial Judge had recorded at the commencement of the trial that theparties had resolved the disputes and the Court has proceeded to hearevidence without points of contest, before it was so recorded the trial Judgeowed a duty to explain to the 4th defendant-petitioner the manner in whichthe disputes have been resolved and to make a contemporaneous referenceto that fact in the proceedings.
If the 4th defendant-petitioner was a party to the compromise, need for crossexamination of the plaintiff by the 4th defendant-petitioner would not havearisen – this clearly shows that the 4th defendant-petitioner was not a partyto the compromise recorded at the commencement of the trial.
Omission to give a party to a suit an opportunity of being heard is not merelyan omission of procedure but is a far more fundamental matter in that it iscontrary to the rule of natural justice embodied. There has been noinvestigation of title.
The protective character of procedural law has the effect of safeguardingevery person in his life, liberty, reputation, livelihood and property andensuring that he does not suffer any deprivation except in accordance withthe accepted rules of procedure – Dr. Amerasinghe in Fernando v Fernando.
APPLICATION in Revision from an order of the District Judge of Horana.
Cases referred to:
Seelawathie and Another v Jayasinghe 1985 2 Sri LR 266.
Hameedv Deen and Others 1988 2 Sri LR 1.
Fernando v Fernando 1997 3 Sri LR 1.
Siriya v Amalee 60 NLR 269.
Punchibanda v Punchibanda
W.G. Rosaleen v H.B. Maryhamy 1994 3 Sri LR 262.
Chandana Prematitaka for the 3rd and 4th defendant-petitioners.
Rohan Sahabandu with Piyumi Gunatilaka for the plaintiff-respondent.
March 19. 2008
ABDUL SALAM, J.The petitioners who were the 3rd and 4th defendants in the abovepartition action, have presently applied to revise the judgment dated1 July 2004 and interlocutory decree entered thereon. They allege
QARanjith Perera and Another v37g
Dharmadasa and Others (Abdul Salam, J.)
that they were unrepresented at the trial and hence denied of a fairtrial. Their position is that the learned trial judge erred when heproceeded to decide the action interpartes against the 4th defendant.It is averred in the petition that the learned trial judge should not haveput the 4th defendant-petitioner into the witness box without legalassistance, when he had a registered attorney on record.
As a matter of law, the petitioners contend that the District Judgeconcluded the case on the same day it was taken up for hearing andthereby effectively shut out evidence of the 3rd and 4th defendantsregarding their title and had compromised his sacred duty toinvestigate the title.
When unnecessary details are filtered out the factual backgroundrelevant to the revision application would appear to beuncomplicated. It involves a fundamental question of law and howpertinently it had been applied in the circumstances peculiar to therevision application.
The petitioners have jointly nominated a registered Attorney to beon record. They filed a joint statement of claim disputing theaverments in the plaint. On the date the matter was set down for trialthe registered Attorney of the petitioners was absent. Accordinglyboth petitioners were unrepresented. Yet, the 4th defendant-petitioner was present at the trial.
The learned District Judge in the course of the trial had allowedthe 4th defendant to cross examine the plaintiff and also present hiscase in person. Thereafter he had delivered judgment to partition theland allotting certain undivided rights to the plaintiff and leaving thebalance rights unallotted.
Thus, the learned District Judge had obtained the assistance of the4th defendant to resolve the dispute by effectually making him toparticipate throughout the trial. The record does not indicate as towhether the 4th defendant-petitioner sought permission of Court toconduct his own case. There is no indication pointing to 4th defendant-petitioner having sought permission of Court to cross-examine theplaintiff or to present his case in person either. In the absence of anyspecific mention being made in proceedings to the contrary, I considerit as reasonable to assume that the learned District Judge on his ownhad involved the 4th defendant in the trial proceedings.
380Sri Lanka Law Reports 1 Sri L.R
The main question that arises for determination in this matter isthe applicability of section 27(2) of the Civil Procedure Code. In termsof Section 27(2) aforesaid when an appointment of a registeredAttorney is made in terms of Section 27(1) of the Civil ProcedureCode, such appointment shall be in force until revoked with the leaveof Court and after notice to the registered Attorney by a writing signedby the client and filed in Court.
The effect of an appointment of a registered Attorney underSection 27(1) has been considered by this court on many anoccasion. Suffice it would be to cite the judgment in Seelawathie andAnother v Jayasinghe<1) and Hameedv Deen and Others^2) where inthe former case it was authoritatively held that as long as a party toa case has an Attorney-at-law on record, it is the Attorney-at-law onrecord alone, who must take steps, and also whom the Court permitsto take steps. It is a recognised principle in Court proceedings thatwhen there is an Attorney-at-law appointed by a party, such partymust take all steps in the case through such Attorney-at-law. Further,the established principle is that a party, who is represented by anAttorney-at-law, is not permitted to address Court in person. All thesubmissions on his behalf should be made through the Attorney-at-law who represents him.
The learned Counsel of the petitioners has also cited thejudgment in the case of Hameed v Deen (supra) in which it was heldthat when there is an Attorney-at-law appointed by a party, every stepin the case must be taken through such Attorney-at-law. Theappointment of the Attorney-at-law under Section 25 of the CivilProcedure Code remains valid in terms of Section 27(2) until allproceedings in the action are ended or until the death or incapacityof the Attorney. The registered Attorney or Counsel instructed by himalone could act for such party except where the law expresslyprovides that any party in person should do any particular act.
The 4th defendant-petitioner has been suddenly called upon tocross examine the plaintiff and later to present his own case by thelearned District Judge, immediately after the closure of the plaintiffscase, disregarding the fact that there was a registered Attorney onrecord. When the 4th defendant attended Court without beingrepresented by his registered Attorney or a Counsel as contemplatedunder Section 27(3) of the Civil Procedure Code, the learned District
QARanjith Perera and Another v381
Dharmadasa and Others (Abdul Salam, J.)
Judge should have considered him as a party having failed to appearat the trial, as the court had rightly chosen to do in the case of the 3rddefendant-petitioner.
It is quite significant to advert to the adverse consequences thatflow from the learned judge's approach to identify the proceedings asinterpartes. As far as the 4th defendant-petitioner is concerned, byimproperly extending the right of audience to the 4th defendant-petitioner at the trial, the learned District Judge has proceeded on thebasis that the judgment and interlocutory decree were enteredinterpartes. This procedure wrongly adopted by Court has deprivedthe 4th defendant petitioner of the right to invoke Section 48(4)(iv) ofthe Partition Act, No. 21 of 1977. Had the learned District Judgefollowed the provisions of the Civil Procedure Code and consideredthe 4th defendant-petitioner as a party who had failed to appear atthe trial or as a party in default of appearance, the 4th defendant-petitioner could have legitimately exercised his rights under 48(4)(iv)of the Partition Act to obtain Special Leave of Court to invoke thejurisdiction of the original Court to amend or modify the interlocutorydecree to such extent and in such manner as the Court could haveaccommodated the entitlement, if any, of the 4th defendant-petitioner.
On the contrary, the irregular procedure adopted by Courtcompelling the 4th defendant-petitioner to participate at the trial inperson has ended up in a miscarriage of justice, in that the 4thdefendant-petitioner had to forego the right conferred under 48(4)(iv)of the Partition Act.
It is of much importance to observe that the learned trial judgerecorded at the commencement of the trial on 1 July 2004 that theparties have resolved the disputes and the Court proceeds to hearevidence without points of contest. Before it was so recorded thelearned District Judge owed a duty to explain to the 4th defendant-petitioner the manner in which the disputes have been resolved andto make a contemporaneous reference to that fact in theproceedings. As there is no such reference found in the proceedings,I am not disposed to take it for granted that the learned District Judgehas either consulted the 4th defendant-petitioner regarding thesettlement or enlightened him as to its consequences. Had thelearned District Judge taken the precaution to ensure that the 4th
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defendant-petitioner also would be bound by such a settlement, hewould have specifically referred to the 4th defendant as a party tothe settlement.
On the other hand, if the 4th defendant-petitioner was a party tothe compromise, the need for cross-examination of the plaintiff by the4th defendant-petitioner would not have arisen. Above all, when the4th defendant-petitioner had purportedly cross-examined the plaintiffposing only one question suggesting that Johanis was entitled to only1 /6th share and not 1/2 as claimed by the plaintiff, the learned trialjudge ought to have realized that the 4th defendant-petitioner wastrying to resile from the compromise. Without clarifying this from the4th defendant-petitioner as to whether he was trying to pull himselfout from the compromise the learned Trial Judge appears to havesimply raised two points of contest and answered the same on thesame day. This clearly shows that the 4th defendant-petitioner wasnot a party to the compromise reached at the commencement of thetrial and the learned District Judge in fact should have raised pointsof contest at the commencement of the trial itself.
The learned District Judge does not appear to have taken intoaccount the miserable plight of the 4th defendant-petitioner whoshould not have been held responsible for the dereliction of duty ofthe registered Attorney. The 4th defendant-petitioner was in hiseightieth year when he was suddenly called upon to cross-examinea witness in a contested partition case and to present his case too.Even a lawyer with experience cannot be expected to discharge hisfunctions satisfactorily if he is confronted with the difficulty which the4th defendant-petitioner had to face.
The learned District Judge possibly in his enthusiasm to disposeof the case without delay has lost sight of the importance of the lawof Civil Procedure. As has been stated by Dr. Amerasinghe, J. inFernando v Fernandd3) "civil procedural laws represent theorderly, regular and public functioning of the legal machineryand the operation of the due process of law. In this sense theprotective character of procedural law has the effect ofsafeguarding every person in his life, liberty, reputation,livelihood and property and ensuring that he does not sufferany deprivation except in accordance with the accepted rules ofprocedure".
qARanjith Perera and Another v333
Dharmadasa and Others (Abdul Salam, J.)
Although recklessness on the part of the 4th defendant-petitionerand dereliction of duty by the registered Attorney cannot be denied,yet the irregular procedure adopted by the learned Judge is totallyunwarranted and unjustifiable.
In Siriya v Amalee et.aW it was held that an omission to give aparty to a suit an opportunity of being heard is not merely anomission of procedure but is a far more fundamental matter in that itis contrary to the rule of natural justice embodied in the maxim audialteram partem.
In the result the manner in which title has been investigated byCourt does not appear to be consistent with the law that is requiredto be followed in the investigation of such title.
In the circumstances it is my view the irregular procedure followedby the learned District Judge has ended up in a miscarriage of justicewhich transcends the bounds of procedural error.
It is appropriate to quote the relevant passage from the judgmentof Soertsz, J. Punchibanda v Punch ibanda^ that has been cited withapproval by his Lordship S.N. Silva, J. (as he then was) in W.G.Rosalin v H.B. Maryhamj/6) which reads as follows:
"This Court has often pointed out that when settlements,adjustments, admissions, &c., are reached or made, theirnature should be explained clearly to the parties, and theirsignatures or thumb impressions should be obtained. Theconsequence of this obvious precaution not being taken is thatthis Court has its work unduly increased by wasteful appealsand by applications being made for revision or restitutio inintegrum. One almost receives the impression that once asettlement is adumbrated, those concerned, in their eagernessto accomplish it, refrain from probing the matter thoroughly lestthe settlement fall through. This is a very unsatisfactory state ofthings and it is to be hoped that a greater degree ofresponsibility will be shown on these matters by both judges andlawyers".
For the foregoing reasons it is my view that the application of 4thdefendant-petitioner should be allowed. The 3rd defendant-petitioner has no ground to challenge the propriety of the
384Sri Lanka Law Reports 1 Sri L.R
impugned judgment by way of revision as he is entitled toinvoke section 48(4)(iv) of the Partition Act. Hence theapplication of the 3rd defendant-petitioner is refused.
The judgment and interlocutory decree are accordingly set-aside and the learned District Judge is directed to investigatethe title afresh, affording both the 3rd and 4th defendantpetitioners an opportunity to participate at the trial.
I make no order as to costs.
Judgment/interlocutory decree set aside.
Trial to proceed.
RANJITH PERERA AND ANOTHER v. DHARNADASA AND OTHERS