* 33 X. L. R. 217.
DE KRETSER J.—de Mel v. Gunasekera.
Proctor. It cannot be denied that the Proctor has a right to appear by anAdvocate. Section 85 deals with the default on the part of the defendant;it will not be denied that here again he may appear by an Advocateinstructed by his Proctor. There is no reference in either section to limitedauthority, and all that both sections deal with is appearance and noappearance. . If a party appears, even to move for a postponement, he hasappeared.
Section 72 has an explanatory note to the effect that “ a party appearsin Court when he is there present in person to conduct his case or isrepresented by a Proctor or other duly authorised person ”. It will benoted that the Proctor represents the party, and exactly the same wordis used in section 24 in describing the position of an Advocate: he“ represents ” the Proctor. An Advocate would also be a duly authorizedperson. It is a case where the maxim “ Qui facit per alium facit per se ”applies. If the argument is pressed to its logical conclusion, it would meanthat if a trial took more than a day, Counsel may not appear on the secondday on the ground of not being obliged to do so, and if Proctor and clientskeep away the case will go partly inter partes and partly ex parte. Thatis a position which cannot be tolerated, nor would it be conceivable wherea proper sense of responsibility exists.
To look at it from another point of view, on a trial proceeding ex partea decree nisi is entered and the defendants have an opportunity of curingtheir default by showing that they had reasonable grounds for not appear-ing. Now, when a postponement is applied for on specified grounds andis refused, what other reasonable grounds would such a defendant have ?His only ground would have to be that the Court should have granted hisapplication, and that would be inviting the Court, perhaps presided overby another Judge, to reconsider its previous order, and this a Court cannotdo. And this position is the same whether the application is made by aparty or by a Proctor or by an Advocate. , There is therefore no reasonwhy any distinction should be drawn between an appearance by a Proctorand one by an Advocate. The truth is that there is no such thing as alimited appearance.
There are two local cases dealing with similar applications by Advocates.In Woutersz v. Caruppen Chetty1 Counsel applied for a postponement onthe ground of his client’s illness and “ left the matter in the hands of theCourt ”. On the application being refused he withdrew. This Court heldthat Counsel had no right to withdraw without the consent of the Judge,but that it was his duty as an Advocate to go on with the case as far as hecould. The Court had given judgment for the defendant and this Courtrefused to interfere. It does not seem- to have been contended that hisobligation was limited or that a decree nisi should have been entered.
In Volume 23 page 397 of Halsbury’s Lams of England will be found thisstatement: —
“ If Counsel is instructed, he ought to have control over the caseand conduct it throughout. His authority may be limited by theclient, but only to a certain extent; and it is not becoming for himto accept a brief limiting the ordinary authority of Counsel in 'this
> 3 Bat. 197.
de Silva v. Hamoukpoia.
respect, or to take a subordinate position in the conduct of a case,or to share it with the client, even if the litigant is himself a barrister ;the litigant must elect either to conduct the case entirely in person orto entrust the case entirely to his Counsel. If a litigant instructsCounsel, the litigant cannot himself be heard, unless he revokes hisCounsel’s authority and himself assumes the conduct of the case,and when a case is fairly before the Court and Counsel is seised of it,his authority cannot be revoked.”
In the case of The Public Trustee v. Karunaratne ‘ the application wasmade by an advocate, and perhaps this appeared in the record, but thejudgment of this Court which treated the decree as one entered interpartes makes no specific mention of this fact.
There remains the question whether the Judge should have framedissues. It is not clear whether the first defendant followed his Advocateout of Court or remained. The Judge’s note rather suggests he left,for the Judge’s note means that though in law the case was proceedinginter partes it was in fact ex parte. The issues in the case were simpleand apparent and could not but have been present to the Judge’s mind,and I do not think the omission to frame issues affects the case. In anyevent section 36 of the Courts Ordinance prevents us from interferingon a point like this where substantial justice has been done, and I thinkit has in this case.-
I dismiss the appeal with costs.
Wijeyewardene J.—I agree.
’ Appeal dismissed.