056-NLR-NLR-V-33-ANDIAPPA-CHETTIAR-v.-SANMUGAM-CHETTIAR.pdf
Andiappa Chettiar 0. Sanmugam Chettiar.
217
1932Present: Macdonell C.J., Garvin S.P.J., Lyall
Grant JM Maartensz A.J.
ANDIAPPA CHETTIAR v. SANMUGAM CHETTIAR.
7—C. R. Gampola, 9,651.
Appearance—Presence . ofproctor—Noinstructions—Whatconstitutesappear-
once—Representativerapacity—Proceedingsinterpartes-—Evidencefor
plaintiff—Civil Procedure Code. s*. 24, 146, 82$.
The presence in Court, when a case is called, of the proctor on therecord constitutes an appearance for the party » from whom the proctorholds the prosy, unless the proctor expressly informs the Conrt thathe does not, on that occasion, appear for the party.
Where, in an action, the claim of the plaintiff is traversed in the answer,and there is an appearance for the defendant, evidence should be takenin support of the plaintiff's case.
Q ASE referred by Macdonell C.J. to a Bench of four Judges.
The facts, as stated in the reference, were as follows: In a Court ofBequests case plaint was filed and answer was filed and day of trial wasfixed. O11 that day, November 25, 1930, plaintiff’s proctor of record ap-peared, and defendant’s proctor of record also appeared by the defendantwas absent without excuse, and defendant's proctor stated that he had" no instructions ” e .i “ no material on which to proceed with the case”.Thereupon the learned Commissioner wrote in the journal *' It is uselessto frame issues and I enter judgment for plaintiff as prayed with .costs,”and he issued a decree in due form. Thereafter on December 18, 1930,the journal says as follows:—” Proctor for defendant files affidavit fromdefendant and moves for the reasons stated therein that the Court bepleased to re-open the judgment- entered against defendant and permithim to proceed with the case. I am unable to grant this application.On the trial dhte (November *25, 1930), the defendant was absent withoutexcuse and Mr. Van Langenberg, who appeared for him, stated that hehad no instructions and was unable to proceed with the case in theabsence of material. As no defence could be made, I considered it uselessto frame issues and entered judgment for the plaintiff as prayed for.This judgment was entered, not ex parte, because the defendant waspresent through his proctor, (section 24 C. P. C.), but inter partes, andthis being so, I have no power to set it aside under section 823 (3) C.P.C,”The defendant appealed on January 7, 1931, from this order of December18, 1930, and it was conceded in argument that he was in time in doing so.
Navaratnam (with E. B. Wikramanayake), for defendant, appellant.—Where a proctor appears in Court and states that he has no instructions,the trend of the earlier decisions is that it would depend on thecircumstances of the case whether or not there was an appearance (Kan-aappa v. Marimuttu*). In this case the Commissioner has entered judg-ment foi plaintiff without going to trial. Where the defendant has filed
1 14 N. L. R. 395.
218MACDONELIi C.J.—Andiappa Chcltiar r. Sanmugam Chettiar.
answer and does not appear on the day of trial, the Court must insiston the plaintiff leading evidence before he can be entitled to judgment(Pkais Mohamedu Khan v. Mariamina1). In this case even if therewas an appearance for the defendant the order is irregular.
Counsel also referred to Senanayake. v. Cooray Percra v. GoonpfiHeke' Scharenguivel v. Orr 4, and Cannon v. Telesinghe
Garvin (with his Gratiaen), for plaintiff, respondent.—The Indian Code.defines an appearance. Our Code does not. When a proctor has fileda proxy it is his business to see that he gets the necessary instructions:.The later decisions of the Supreme Court are to the effect that a proctorcannot avoid an inter partes judgment merely by stating that he hasno instructions.
February 1, 1932. Macdonbll C.J.—
This was a case referred by me to a Bench of Four Judges so as toobtain a definite ruling on two matters upon the former of which there isa conflict of authority. The reference is in the following terms: —
“ (1)'was there on November 25, 1930, an appearance for the defendantin this case ?
(2) was the judgment of November 25, 1930, a judgment infer partes orjudgment by default, ex parte ?”
The firpt question is the more important of the two questions referred, .since it is as to it that there is a conflict of authority. I am clearly ofopinion that there was an appearance for the defeisfevnt in this case. Hehad given a proxy to a proctor who had filed the same, so that there wasa proctor of record for defendant, and this was an appearance in Courtauthorized by law to be made in an action which could be made by aproctor duly appointed by the party interested; see Civil ProcedureCode, section 24. The proctor of record was present in Court and statedcertain matters in connection with the case on behalf of his client,the defendant, viz., that he had no instructions; this was clearly anappearance for the client; per Ly'all Grant J. in Scharenguivel v. Orr1.
“ ‘It has never been held that a proctor for a plaintiff who has received aproxy and instructions for the preparation of a plaint is entitled to avoida final judgment against his client merely by stating on the date fixedfor trial that he has received no instructions.” That was the conversecase, appearance of proctor retained for plaintiff, plaintiff himself beingabsent, but I think the dictum holds good equally where, as in the presentcase, the client is defendant in the action. When the proctor of recordis in Court when a case he is retained in is called, then either the client isalso personally present or he is not. If he is personally present, thenbeyond question he has appeared. If he is absent, then the presence oflus proctor of record is prima facie an appearance for him in the absenceof anything appearing to the contrary. The proctor of record is therewhen the case is called; then, if he wishes his presence 'in Court not to bereckoned an appearance for the defendant, he should make that clear to
> 5 S. C. C. 65.
* 15 N. L. R. 36..
a 5 C. W. R. 6.
« 28 N. L. R. 302.
» 30 N:L. R. 372.
MACDONELIj C.J.—Andiappa Chetliar v. Sanmugam Chettiar.
m
the Court forthwith. This is necessary in the interest of the Courtitself, to infoim it if, notwithstanding the presence of the proctor in Court,the occasion is not to be treated as an appearance; the Court needs thisinformation that it may know how to proceed. This is necessary alsoin the interest of the proctor himself, that there may be some entry in thejournal of the case to show what he did for his client on the case beingcalled. While on .the one hand a proctor who has accepted a proxycannot disclaim bis client as long as such proxy continues to be of affect,still I think it would be to place proctors in a position hardly tolerable,were it to be ruled that if a proctor is in Court when a case for which hehas accepted a proxy is called, his presence must be reckoned anappearance for the defendant without any option to the proctor to saythat it must not be so reckoned. The proctor may have been engagedin the case just disposed of, and may likewise be engaged in the case nexton the day’s list, and it would be* burdensome—and perhaps farcical—to require him to go out of Court when the case is called the defendantin which, being his client, is absent without having given him instructions,c-n pain of his continuing presence in Court being compulsorily reckonedan appearance for the absent defendant. Consequently it seems butreasonable that the proctor should have the right to inform the Courtthat, though he is physically present-, he does not on this occasion appearfor the defendant whose case has just been called. But it seems to methat it is his duty to make it clear that he does not on this occasionappear for that client, and that if he does not so 'make it clear, his presencein Court will ipao facto be an appearance for that client. A few wordsonly will be necessary, provided that they make it clear that he does noton this occasion appear for his client, and he can add, if he so desires,the reason why, which in the great majority of instances will be .thathe is without instructions, but those few words making it clear that onthis occasion he does not appear for Ins client are necessary and must beuttered, otherwise his presence in Court must be reckoned an appearancefor his client. The substance of what he says will of course b& enteredforthwith in the journal of the case. This rule, if adhered to, will be aminimum of extra trouble to proctors, and to the secretary of the Courtalike, but it is a rule necessary to be observed in all* such cases—i.e.,proctor present when case is called but defendant absent—since theCourt must be informed whether the proctor though present yet is notappearing for defendant on that occasion, and it is a rule which must be•observed to prevent dispute arising thereafter as to .whether there wasor was not, when the case was called, an appearance for defendant therein.
The decided cases on this point fail to give a clear ruling thereon. Thedecisions in some at least of the earlier cases incline to the view that Iam prepared to adopt, namely, that the presence of the proctor is anappearance for the defendant, though certainly none of them- suggestthat the proctor has or should have the right to say that, though present,he does not appear for the defendant. Thus in the Court of Requestscase of Pieris v. Penuindo *, it was held that where defendant was absenton the day fixed for trial of a case, but his proctor on the record appearedfor him, answer having been filed, and on the evidence adduced- by
1 1 S. C. Rep. 67.
220MACDONEIjL J—Andiappa Chrtiiar v. Sanmttgam Chetliar.
plaintiff the Commissioner entered up final judgment, then the appearanceof the proctor took the case out of section 85, which at that time seemsto have applied to Courts of Bequests, and final judgment was rightlyentered, and that the Commissioner bad no power to set aside such finaljudgment on application by the defendant. Again in the District Courtcase of Gargial v. Somasunderam Chettiar1, where the defendant’s proctorappeared on theday of triai,appliedfor a postponementwhich was
refused, and thenretired fromthe casedeclining to take further part in
the proceedings, it was held that the proctor must be taken to haveappeared for his client. But other cases, some of . them later than thetwo -just cited, have tended to relax this principle without however setting ■up any other principle in its place. Thus in the District Court case ofMohammedu Lebbe v. Kiri Bandai 2, it is stated that on the day fixedfor trial the defendant was absent and that the proctor, though physicallypresent, took no part in the proceedings. Wood Benton J. said that hethought it would be straining the law to hold that a client is bound bythe mere casual presence in Court of tl:o proctor who, so far as the recordshowed, had no instructions onbehalf ofhis client and couldonly be said
to represent thatclient in virtue of thefact that his nameappeared as
proctor on the record, and Hutchinson C.J. concurred. Again in theDistrict Court case of Perera v. Gunatilleke3, where on the day of trialthe defendant’s proctor of record appeared but said he had no instructionsand where the client was absent, Wood Benton C.J. said that the merephysical presence of the proctor, together with his statement that hehad no instructions, would not constitute an appearance for the defendantsuch as would give the proceedings the character of an inter partes trial.If is just this difficulty, “ the casual presence ” or “ the mere physicalpresence ”, in Court of a proctor, who has “ no instructions ”, whichthe rule laid down above seeks to meet. In the Court of Bequests caseof Kandappa v. Marimuttu4, where the facts were that answer had beenfiled and that on the day of trial the defendant was absent, but thatthe proctor who was . there for other cases as well, mentioned that thedefendant bad asked him to appear but had given him no instructions,Wood Benton J. said: *' It appears to me that cases of this kind turnvery largely on questions of fact, and it is not desirable nor do I proposeto attempt to lay down any general rule.” So also in the District Courtcase of Senenayake v. Gooray5, Middleton J. sajd: “ It is somewhatdifficult to say in such a case what is the principle upon which a Courtshould act in deciding whether there is an appearance or not, but Ithink each case should be determined upon its own ’circumstances.”From what is laid down in the last two cases cited, I would respectfullydissent; it is precisely the refusal to lay down a definite rule and thedeciding each case on its own circumstances which lead to uncertainty—with the concomitants, further litigation, delay and increased costs—andon .the contrary I prefer to lay down a definite rule, tfiat enunciated above,'which I think should be followed. I may add that the latest decision onthe matter, that of Akbar J. in the Court of' Bequests case of Cannonv. Telesinghee, is in substance .to a like effect to the rule now laid down.
i 9 N.L. R. 26.
I 3 Bat. 200.
14C.W. R. 6.
4 14 N. h. R. 395.* 15 N. L. R. 36.
6 SON. h. R. 372.
MACDO-VEJjL CJ.—Andiappa Chettiar v. Sanmugam Cheihai.221
The matter referred is the case of a defendant whose proctor is presentin Court when his case is called, but I apprehend that with regard to aplaintiff a similar rule in the interpretation of section 34 of the CivilProcedure Code, if it be a District Court ca6e, of section 323 (1), if it bea Court of Bequests case, should mutatis mutandis meet all difficulties.
The second question referred is, was the judgment of November 25,1930, a judgment infer pastes or a judgment by default, ex partel1 am satisfied that since there was an appearance for defendant who hadby his answer on the record traversed the plaint, there could have beena good judgment inter partes only if some evidence had been taken insupport of the plaintiff's plaint; wanting any such evidence the judgment-delivered on November 25, 1930, was at most a judgment- ex parte.Section 184 of the Civil Procedure Code contemplates judgment in aDistrict Court case being given “ upon the evidence which has been dulytaken or upon the facts admitted in the pleadings or otherwise, ” andwhen section 827 applicable to Courts of Bequests says “ the Com-missioner shall hear and determine the action according to law”, it isto the provisions of section 184 that it is referring in a case such as this,namely, where there has been an appearance and where .the plaint hasbeen traversed. The Court of Requests case of Pieris v. Fernandol,cited above, though very shortly reported, makes it clear that in suchcircumstances, evidence must be taken in support of plaintiff’s claim ifthe judgment is to be one inter partes; it is simply an exemplification ofthe rule, probatio incumbit ei qui dicit non qui negat. If there had notbeen an appearance but a default, then section 823 (2) of the Civil ProcedureCode would apply and the Commissioner would take evidence onlyif the title to, interest in, or right to the possession of land were in disputeor if it were a case in which he “ deemed it necessary or expedient tohear evidence in support of the plaintiff’s claim.” In this connectionI would refer to Phais Mohamedu Khan v. Mariamina2, which in* thepresent state of the law would be a wrong decision. That was a case ofdefault by defendant, consequently even though there was on the recorda denial of plaintiff's claim, still it would have been necessary ’for theCommissioner following section 823 (2) to take evidence only if a questionas to land were in dispute or if he deemed it necessary or expedient.But in the case before us to make the judgment good inter partes, evidenceshould as a matter of law have been taken in support of plaintiff's claimsince that claim had been denied by the defendant on the pleadings andthere had been an appearance for the defendant.
In the present case the proctor for defendant on December 18, 1930,asked the Commissioner of Bequests to reopen the judgment of November25,. 1930. The Commissioner quite rightly refused to do so, since theproceedings whereon that judgment was pronounced were inter partes,whatever may have been the flaw in those-proceedings and in the judg-ment thereon. Then the defendant’s only remedy was by appeal butthe time for this had elapsed before December 18, 1930, and a fortioribefore January 7, 1931, when he actually did enter his appeal. But Ithink that in view of the uncertainty of the law on one at least of thepoints raised in this case, the Court should in revision give* relief to the* 1 S:C. Rep. 67.* 5 S. G. C. 6$,
(iARVIN S.P.J.—Anthappa Ghc.Utar v. Sanmutjam Chcliiar.
defendant in the following terms, namely, that conditionally on hispaying the costs incurred on November 25, 1930, and on December 18,1930, and of this appeal within a short period, say 14 days after thisjudgment is delivered, he be at liberty to defend but that failing paymentof those costs within the period fixed, the judgment of November 25,1930, should stand.
(iARVIN S.1VJ.—
I agree generally with the Chief Justice. In the case of a party, the testof his appearance or non-appearance is his presence or absence, when thecase or proceeding to which he is a party is called in Court. But a partyinay make an appearance by a proctor duly appointed by him. It isconceivable that a proctor on the record for what may appear to himto be good and sufficient reason may not wish to make an appearance onbehalf of his client. He may nevertheless be compelled to attend Courtin connection with other business and as a result be present in Court,when the case is called. At the same time a Court must know and havesome means of ascertaining whether a party appears and the ordinarytest of such appearance must be the presence of the party or his proctor.If the proctor, though present, does not wish his presence to be construedas an appearance on behalf of his client, he must immediately inform theCourt that he does not desire to and is not entering or making anappearance in the case. This must be done clearly and unambiguously.It is not sufficient, as in the case under consideration, to say .that he hasno instructions. A proctor who has no instructions may nevertheless■Ho much for his client and in his interests. The Court, as I have said, isentitled to know at the outset whether the proclor is making an appearancefor his client or not and unless he states that he is not making such anappearance, it is entitled to treat his presence as an appearance and to-proceed as if the party had appeared.
In the case under consideration, inasmuch as appearance had beenentered by or on behalf of both parties, this was an inter partes trial.Had the defendant appealed, he would I think have succeeded on theground that there was no evidence to support the judgment in favour ofthe plaintiff. He did not appeal from the judgment and mistook hisremedy. I agree that, in view of the uncertainty of the law hithertoexisting as to what constituted an appearance by a proctor on behalfof his client, relief should be given in exercise of this Court’s revisorypowers.
XiYAnn Grant J.—
The points of reference are: —
Was there on November 25, 1930, an appearance for the defendantin this case?
Was the judgment of November 25, 1930, a judgment inter partesor a judgment by default ex parte?
The claim made in the Court of Bequests was for Bs. 259.46, the balancedue by the defendant on an account for monies lent and goods delivered..
One item of the account was a loan of Bs. 750. There was also anitem for interest Bs. 34.12.
LYAIjf* GRANT J.—Atuiiappa Chettiar v. Sanmugam Chettiar.2*2.1
The defendant filed answer' denying indebtedness and stating that theitem of Rs. 750 was incorrect and that it ought to be Rs.. 500. Headmitted the correctness of the other items (with the exception of theitem for interest).
On the trial date the defendant was not personally present and hadsent no excuse. His proctor appeared and stated that he had noinstructions and was unable to proceed with the case in the absence ofmaterial. The learned Commissioner considered it useless to frameissues and entered judgment for the plaintiff.
On December 18, 1930, the defendant's proctor filed «u affidavit fromthe defendant and moved the Court to reopen the judgment on thefooting that the decree was a decree by default and made ex parte.
The Commissioner of Requests held that the judgment was not anex parte decree. The defendant was present by his proctor and thereforethe Commissioner had no power to set it aside.
On this point section 24 of the Civil Procedure Code provides that—
" Any appearance in any Court required or authorized by law to*be made by a party to an action in such Court, may be madeby .the party in person, or by a proctor duly appointed bythe party to act on behalf of such party …
In Pieris v. Fernando1, Dias J. held that where on the day of trialthe defendant was absent but his proctor appeared for him that thedefendant had appeared and the judgment was a final one. The report-shows that the plaintiff gave evidence but it is not stated what part, ifany, the defendant’s proctor took in the case.
Gargial v. Somasundram Chettiar1 related to a District Court case..The defendant’s proctor on the day of trial moved for a postponementon the ground that owing to his client’s absence he was unable to getready for the trial. On his motion being refused, he withdrew from thecase and declined to take part in the proceedings. It was held by Layard
J., Wood Renton J. agreeing, that this constituted an appearance bythe defendant and .that the trial was inter partes.
In Mohammedu Lebhe v. Kiri Banda3, the proctor was present in Courtbut took no part in the proceedings whatever. Wood Renton J. heldthat the mere casual presence in Court of the defendant's proctor didnot constitute an appearance.
In Perumal Chettiar v. Goonetilehe*, the defendant’s proctor appearedand asked for a postponement on .the ground of the defendant's absence.Hutchinson C.J. held ' that this constituted an appearance by thedefendant.
In Kandappa v. Manmuttu5, the proctor was present in Court inconnection with other cases and when the case was called stated thatthe defendant had asked him to appear in the case but had given himno definite instructions and that he was not prepared to take any furthersteps in the case. He did not apply for a postponement.
1 (1892) 1 S. C. Rep. 67.3 (1907) 3 Bcdasingham 200.
* (2005) 9 N. L. R. 26.1 (200$) 4 Balasingham 2.
(1911) U N. L. R. 395.
18/33
■224
LUALL GRANT J.—Andiappa Chettiar v. Sanmugam Chettiar.
On these facts Wood Kenton J., while guarding himself from layingdown a general principle, said he was not prepared to say that the Courtof Bequests was wrong in holding that .there had been default by theappellant and that the respondent was entitled to judgment.
The appeal in that case was brought by the defendant againstthe Commissioner's refusal ” to reopen the case and the appeal wasdismissed.
In Senanaya he v. Coo ray1, a District Court case, the defendant wasabsent on the trial date and his proctor stated that he had no instructions.The District Judge heard the case and entered judgment for the plaintiff.Middleton J., with whom Lascelles C.J., agreed, considered that the factof the defendant’s proctor being casually in Court and stating that hehad no instructions did not constitute such an appearance for thedefendant as to make the trial one inter partes.
Middleton J. went on to 6ay that it was clear from the pleadings andon the plaintiff's evidence that it was hazardous for the District Judgeto enter judgment for the plaintiff in a matter of title to immovableproperty as he did.
In Per era v. Goonetileke2, the proctor whose name appeared on therecord for .the defendant stated that he had no instructions from hisclient who was absent. It was held by Wood Kenton C.J., with whomShaw J. agreed, that the District Judge was wrong in giving judgmentfor the plaintiff without hearing evidence, i.e., he was wrong in treatingthe case as inter partes and not ex parte.' This judgment proceeded onthe authority of Senanayake v.. Cooray {supra).
In Scharenguivel v. Orrs, .the plaintiff was absent on the day of trial. •Bis proctor was present and stated- that he had no instructions from his■client. On the defendant’s motion the action was dismissed. Theplaintiff appeared later by other proctors who filed proxy with cancellationof the former proctor’s proxy and asked that .the decree be set aside.
The learned District Judge treated his decree as a decree nisi and heldan inquiry under section 84. He found that the plaintiff had beennegligent and refused to reopen the case. On appeal the District Judge’sview was upheld on the ground that no sufficient cause had been shown■why the case should be relisted.
Speaking obiter however, 1 expressed an opinion that the decree mighthe considered to have been passed inter partes, and I endeavoured, possiblynot too successfully, to distinguish the cases of Senanayake v. Cooray(supra), Perera v. Goonetileke (supra), and Kandappa v. Marimuttu*.
My brother Garvin agreed and we both considered that when a suitableopportunity presented itself, the judgments in Senanayake v. Cooray(supra), Perera v. Goonetileke (supra), and Kandappa v. Marimuttu(supra) should be reviewed.
In Cannon v. Telesinghe*, Akbar J. held that where the defendant wasabsent but his proctor was present, the Court of Bequests was wrong inentering judgment by default. The case wa6 sent back for trial. Thereport does not' show what part, if any, the defendant’s proctor took inthe proceedings.
(1927) 23 X. L. R. 302.
• (1911) li N. L. R. 391.
1 (1911) IS Ar. L. R. 36.‘ (1917) i C. If. R. 6.
• (1929) 30 -Y. L. R. 372.
LYAI/L GRANT J.—Andiappa Chettiar t>. Sanmugam Chettiar.326
On a further review of the authorities, I see no reason to alter myopinion that the appearance by a proctor holding a proxy is primd faciethe appearance of his client. The explanation in section 72 of the CivilProcedure Code makes this clear: —“A party appears in Court when heis there present in person to conduct his case, or is represented there by*a proctor or other duly authorized person. ”
We have not in Ceylon the qualifications imposed in the Indian Code,Order V., Buie 1, that the proctor must be duly instructed and able toanswer all material questions relating to his client.
If the proctor has due notice of the day fixed for trial, it seems to methat it is his duty to inform his client of the date fixed (assuming that noother notice is issued from the Court) and to obtain his client's instructions.
If he has not done so, his failure, in a question with the opposite party,must be imputed to the client. If be has done so and the client hasfailed to instruct, I am unable to see why the client should get anyadvantages.
As l understand it the reason for allowing a decree nisi in cases of defaultis because there may be an excellent reason for non-appearance, e.g., nonotice of the date may have been served or there may be some otherconvincing reason for the person's non-appearance.
In Qargial v. Somasundram Chettiar1, the proctor gave what appearedto be a strong reason to support an application for postponement, viz.,that his client and necessary documents were in India.
It was however there laid down that an application for postponementconstitutes an appearance which bars the client from applying later toset aside the decree.
1 find it difficult to see why the statement that the proctor has noinstructions, no reasons being given, should place the litigant in a betterposition than that in which he is placed by an application being madeon his behalf for a postponement on the ground .that for stated reasonshis proctor has no instructions.
I would answer the first question in the affirmative. . The 'secondquestion depends on whether .the learned Commissioner "of Requestswas right in giving judgment for the plaintiff without calling evidenceand on that framing issues.
On that point section 827 refers us back to the general principlesgoverning procedure in District Courts. The claim in the present casewas not a liquid one and could not be dealt with under Chapter 53.
The answer raised an issue in regard to the claim for a sum of Rs. 750.1 do not think therefore that the learned Commissioner was right inapplying the proviso to section 146. The defendant had made a defence,and .the burden of proof lay on .the plaintiff. (Evidence Ordinance,section 101 and 102.)
This point is decided in Phais Mohamedu Khan v. Mariamina2.In that case the defendants were not present either personally or byproctor but sent an excuse and a request for a postponement.The
request was refused and decree was entered for the plaintiff. Nosuggestion ^was made that the case was not heard infer partes but this1 (190$) 9 N. L. B. 20.2 (1882) 5 S. C. C. 65.
8J. JT. A 99910 (8/50)
926
i
MAABTENSZ A.J.—Andiappa Chettiar o. Sanmugam Chettier.
Court held that the Commissioner was wrong in not taking evidencebefore giving judgment for the plaintiff. A similar decision was givenin Meedin v. Meedin.1
For the reasons given in answering the first terms of reference, I think,that there was an appearance by the defendant and that the judgmentwas therefore not ex parte.
It purported .to be inter partes but was not properly entered, inasmuchas the plaintiff was not called upon to give evidence in support of a claimto which a specific defence had been entered.
Maartensz A.J.—
'This was an action for the recovery of a sum of B&^2$9.46 allegedto be due from defendant according to the particulars ?©f account filed1 with the plaint."
The defendant in his answer disputed the correctness of the amountand repudiated liability. When the case came on for trial on November25, 1930, the defendant was “ absent without excuse " and his proctorMr. Van Langeriberg said that he had no instructions and no materialon which to proceed with the case.
The learned Commissioner then made the following order:—“ It isuseless to frame issues and I enter judgment for plaintiff as prayedwith costs. ” When the defendant moved under section 823 (3) of theCivil Procedure Code to have th® order set aside he held that ** thejudgment was entered not ex parte, because the defendant was presentthrough his proctor (see 24, C. P. C.) but inter ^srtes, and that5 he hadno power to set it aside ”.
The questions referred for consideration by the Full Bench on theappeal of the defendant from this order were: —
Was there on November^, 1930, an appearance for the defendant
in this case?»
Was .the judgment of November 25, 1930; a judgment inter partesor a judgment by default ex parte?
As regards the first question, .there is a difference of opinion as towhether a party who Wes' personally absent has or has not appearedby his proctor when his proctor was present and told the Court that hehad no instructions.
1 agree with my Lord the Chief Justice that a definite rule should belaid down for the guidanceof proctors andtheCourts of originaljuris-diction; and that the ruleshould be thata proctor present inCourt
when his case is called, if he does not desire to enter an appearance foran absent party whose proxy he has filed should definitely state to theCourt that he is not entering an appearance, and that otherwise hispresence in Court should be deemed an appearance for that party.
In accordance with this view, I would hold that the judgment enteredby the learned Commissioner on November 25, 1930, was a judgmentinter partes and the appealis out of time;butas there is a conflict of
authority, I agree to the order proposed bytheChief Justice.
1 (1909) 5 Appeal Court Reports 42.
Set aside.