Chandrasiri v. Abeywickrema (Ismail, J.)
COURT OF APPEALISMAIL, J„ (P/CA)
C. MATUGAMA NO. 1517/LOCTOBER 20TH.1998.
Civil Procedure Code S. 357 (1) – Affidavit supporting Petition – Can it besubscribed to by the Registered Attorney.
In terms of S. 757 (1) CPC the affidavit which is required to support the petitionmade by a party for application for leave to appeal cannot be subscribed to bythe registered attorney of such party.
APPLICATION for Leave to Appeal.
Sanath Jayatileka for defendant-appellant.
S. Edirisinghe for plaintiff-respondent.
Cur. adv. vutt
November 16, 1998
ISMAIL, J. (P/CA)
A preliminary objection to the application of the defendant-appellantfor leave to appeal has been taken on the ground that it has beensupported by the affidavit of the registered attorney instead of theapplicant himself.
The defendant-appellant is K. G. Sanath Chandrasiri and hisregistered attorney is Mr. C. L. Weerakkody. The petition dated 5th
Sri Lanka Law Reports
 3 Sri L Ft.
September '97 has been prepared on behalf of the defendant-appellantand signed by his attorney-at-law Mr. C. L Weerakkody.
The defendant-appellant sought the following relief:-
"that the order disallowing issues 7 and 8 be set aside and thesaid issues be allowed or issue 6B be deemed to be adequateper se.
that all questions overruled on 22.8.97 be deemed to be relevant.
that the defendant be permitted to be lead his witnesses.
that fresh trial be ordered before another judge and such otherrelief as to your Lordships Court shall seem meet".
The affidavit annexed to the petition in support of the avermentsin the petition is that of Mr. C. L Weerakkody. The relief prayed forin the petition has also been claimed as above in the affidavit. Theaffidavit is thereby rendered defective.
While the appointment of Mr. Weerakkody has also been annexed,it appears that on the motion dated 5th September '97 filed by thecounsel for the petitioner, it has erroneously been stated that it ishis appointment.
At the inquiry into the preliminary objection, learned counsel forthe defendant-appellant submitted that while section 757 (1) of theCivil Procedure Code specifies that the petition shall be duly signedby the party aggrieved or his registered attorney, it does not specifyas to who should support the petition by an affidavit.
Learned counsel has tendered written submissions and has referredto several authorities dealing with affidavits. None of the authoritiescited support the position that it would be permissible for the avermentsin a petition of a petitioner to be supported by an affidavit of hisregistered attorney.
Beebi Johara v. Warusavithana
I am of the view of that in terms of section 757 (1) of the CivilProcedure Code the affidavit which is required to support the petitionmade by a party for application for leave to appeal cannot besubscribed to by the registered attorney of such party. The preliminaryobjection is therefore entitled to be upheld.
The application is rejected and it stands dismissed with costs.TILAKAWARDANE, J. – I agree.