071-NLR-NLR-V-11-TILLEKERATNE–v.-WIJESINGHE.pdf
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1908.July 2.
Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice.TILLEKEBATNE ». WIJESINGHE.
C. B., Anuradhapura, 5,046.
Proxy in favour ofproctor—Failure tosign—Subsequent signature—
Ratification—Validity—Civil Procedure Code, s. 27.
The plaintiff granted a proxy to a proctor, which, by oversight, was notsigned-by the plaintiff. The proctor acted on the proxy without any objectionin the lower Conrt. When the case was taken up in appeal, the defendant’scounsel objected to the status of the proctor in the case.
Held, that the mistake in the proxy could be rectified at this stage by theplainiff signing it, and that such signature would be a ratification of all theacts dime by the proctor in the action.
A
PPEAL from a judgment of the Commissioner of Bequests.The facts sufficiently appear in the judgment.
A. St. V. Jayewardene, for the plaintiff, appellant.
Balasingham, for the defendant, respondent.
Cut. adv. vult.
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July 2, 1908. Hutchinson C.J.—
This is an appeal by the plaintiff from a decree dismissing theaction. When it was called on, the respondent raised the preliminaryobjection that the petition of appeal was not duly signed. Itpurported to be signed by the appellant’s proctor; but his proxy,although it had been filed at the institution of the action on Decem-ber 12, 1907, had never been Bigned by the client. I allowed theappeal to stand over for a fortnight to enable the appellant .to signthe proxy, without prejudice to the question whether the signaturewould get rid of the respondent’s objection. It has now been signed;and the appellant’s counsel contends that the signature is a ratificationof all the acts done by the proctor in this action. He says that theomission to sign the proxy was a pure oversight; that no objectionon account of it was taken in the Court of Requests, and that, in fact,no one noticed it until the appeal was called on. The respondent’scounsel contends that the requirement of section 27 of the CivilProcedure Code is imperative, and that an authority not signed bythe client is void.
Section 27 enacts that “ the appointment of a proctor to make anyappearance or application or do any act as aforesaid shall be inwriting signed by the client and shall he filed in Court. ” In myopinion that is only directory. If a plaintiff appearing throughoutthe action by a proctor, whom he has instructed to act for him, butwhose proxy he had forgotten to sign, were to recover judgment, andif the ommission to sign were then discovered and the proxy signed,the Court could not, in my opinion, hold that the whole of theproceedings on the part of the plaintiff up to and including thejudgment were void because of the non-signature of the proxy; or,if the plaintiff failed in the action and it was dismissed with costs,Hie Court could not hold that the decree under such circumstanceswas of no effect against the plaintiff. No doubt the enactmentmeans, though it does not in terms say so, that the appointment isto be signed and filed before the proctor does anything .in the action.But if the omission to sign is not because the proctor has not in factany authority, and if the client afterwards ratifies what has been'done in his name by signing the authority, in my opinion thatsatisfies the requirements of the enactment.
On the merits I think the appeal fails. The plaintiff sued thedefendant in C. R. 4,994 for the same cause. On the day of trial ofthat action the plaintiff was absent; the defendant was present andready; the plaintiff’s proctor informed the Court that he had noinstructions; and the Court .thereupon dimissed the action. After-.wards the plaintiff filed an affidavit stating that the reason why hewas absent was that he was not aware of the day of trial, and was notable to ascertain it as he was not well, and he applied to be permittedto institute a fresh action on the same cause of action, stating in his
1908.July S.
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1908. application that he was prepared to give security for the defendant'sJuly 2. costs in the first action pending the result of the new action. UponHutchinson this application the Commissioner wrote “ Allowed. ” This allowanceC.J. was made ex parte, and was apparently intended to be under section828 (5) of the Civil Procedure Code. But the Commissioner had nopower to make it except “ upon payment into Court of the amountdue to the defendant as costs in the previous action and therehas been no payment into Court yet.
The Commissioner dismissed this action on the ground that theplaintiff has neither paid into Court the amount of the defendant'scosts in the former action, nor tendered security, as he undertook todo, in this application under section 823- I think the dismissal wasright. I dismiss the appeal with costs.
Appeal dismissed.