Sri Lanka Law Reports
 1 Sri LR.
COURT OF APPEALDE SILVA, J„
A. NO. 653/98
C. HOMAGAMA NO. 833SEPTEMBER 29, 1998.
Appeal notwithstanding lapse oi time – Cap. LX Civil Procedure Code S. 27,
S.765, S. 759 (1) – Court of Appeal (Appellate Procedure Rules 1990) – Validityof Proxy.
In an Application under S. 765 Cap. LX CPC the plaintiff-respondent, took upthe following legal objections:
Acceptability of the proxy filed on behalf of the petitioner.
Acceptability of the amended petition.
Whether a different attorney could file proxy.
Whether there is a petition of-Appeal filed to be admitted.
An act done for another person though without any precedent authoritywhatever, becomes the act of the principal if subsequently ratified by him.is the known and established rule of law. The irregularity occasioned bythe absence of a proper proxy in favour of an Attorney-at-law is curable.However a complete omission to file the act of appointment/proxy cannotsubsequently be supplied.
The Court of Appeal (Appellate Procedure Rules 1990 – Rule 8) permitsa party with prior permission to amend his pleadings, or file additionalpleadings or other documents within 2 weeks of the grant of suchpermission unless the court otherwise directs. The above rules empowerthe Court of Appeal to permit amendments.
Application to the Court of Appeal is a totally different application. It doesnot stem from the Notice of Appeal and it has nothing to do with theNotice of Appeal in the original court. An application for leave notwithstand-ing lapse of time originates in the Court of Appeal. Therefore a fresh proxycould be tendered by the Attorney-at-law on record or by a differentattorney.
Dias v. Karawita (De Silva, J.)
Under S. 766 – on the petition of Appeal submitted to the Court of Appealnecessary directions could be given to the original court to comply with.
APPEAL notwithstanding lapse of time.
Cases referred to:
Attorney-General v. Silva – 61 NLR 500.
Tillekeratne v. Wijesinghe – 11 NLR 270.
De Silva v. Casinathan – 55 NLR 121.
Kadiragamadas v. Suppaiah – 56 NLR 172.
Lorna Maritime Corporation v. Mohamed Saleh Bawasir and another – 19863 CALR at 133.
Wilson v. Tumman and Fretson – GMLG 236 at 242.
Saravanapavan v. Kandasamydurai – 1984 I SLR 268.
R. C. Gunaratne for defendant-petitioner.
Harsha Soza for plaintiff-respondent.
Cur. adv. vult.
January 21, 1999.
DE SILVA, J.
This is an application for an appeal notwithstanding lapse of time interms of chapter LX of the Civil Procedure Code. When the matterwas taken up for argument certain preliminary objections were takenand on that oral submissions were made. Thereafter both counselagreed to file written submissions on the following questions:
The acceptability of the proxy filed on behalf of the petitioner.
Acceptability of the amended petition of the petitioner.
Whether a different Attorney could file this application in theCourt of Appeal without revocation of the proxy filed in theoriginal court.
Whether there is a petition of appeal to be admitted andentertained by the Court of Appeal.
On the first question counsel for the respondent submitted that theproxy given by the petitioner is invalid for the reason that :
Sri Lanka Law Reports
 1 Sri L.R.
The attorney's name does not appear after the word nomi-nate, constitute and appoint but at the very end of thedocument.
The petitioner has not signed the proxy form.
Mr. Harsha Soza, counsel for the respondent contended that thedefects in the purported proxy of Mr. K. Hettiarachchi are incurableand that the said purported proxy is no proxy at all in law. He reliedon the decision in the case of Attorney-General v. Silvai'K
Mr. Ranjan Guneratne counsel for the petitioner submitted that thefiling of a defective proxy would not be fatal to an action and wascurable and sought permission of court to rectify the defects. In supportof this contention, counsel cited the case of Thilekaratne v. WijesingheP'where a plaintiff granted a proxy to a proctor which, by an oversightwas not signed by the plaintiff.
The Proctor acted on the proxy without being objected to in thelower court. When the case was taken up in the appeal, thedefendant's counsel objected to the status of the Proctor in the case.The Supreme Court held that the mistake in the proxy could be rectifiedat this stage by plaintiff signing it and the signature would be aratification of all acts done by the Proctor in the action. The followingdecision too support the above view. De Silva v. CasinathanPKadiragamadas v. Suppaiahm.
Mr. Gunaratne further submitted that the provisions of section 27of the Civil Procedure Code are not mandatory but only directory. Insupport of this view he relied on the judgment in Thillekaratne v.Wijesinghe referred to earlier where Hutchinson, CJ. in rejecting the,contention that an unsigned proxy was void made the followingobservations:
"Section 27 enacts that the appointment of a Proctor to make anyappearance or application or do any act as aforesaid shall be in writingsigned by the client and shall be filed in court; is in my opinionthat is only directory." This case has been cited with approval byGunasekara, J. in Kadiragamadas v. Suppaiah (supra) at 173.
Dias v. Karawita (De Silva, J.)
Support for this view is also found in the judgment of Justice Pererain Lorna Maritime Corporation v. Mohomed Saleh Bawazirand OtherdS)at 133 where the above decisions were considered fully. At page 139Perera, J. observed as follows: “We are in agreement with the sub-mission made by the learned counsel for the petitioner that if theomission in the proxy is not because the registered Attorney-at-lawhas not in fact any authority and if the client afterwards ratifies whathas been done in his name by signing the authority, that would satisfythe requirements of the relevant provisions of the Civil ProcedureCode". This would however be subject to the exception that a completeomission to file the act of appoinment or proxy cannot subsequentlybe supplied.
Weeramantry in his Law of Contracts vol. 1 page 204 para 215states that: "The writing must be signed by the party to be chargedor his agent on his behalf. It is immaterial in what part of the documentthe signature appears as long as it can be reasonably inferred thatthe party thereby intended to recognize the documents as anexpression of his will".
In this case the Attorney himself has signed the proxy and affixedhis signature. This clearly shows that Mr. Hettiarachchi accepted hisappointment as the Attorney-at-law for the petitioner before presentingthe petition to the Court of Appeal. Thereafter he has taken thesesteps not for himself but on behalf of the petitioner.
It is to be noted that the doctrine of ratification too comes intoplay in this instance. As explained by Tindal, CJ. in Wilson v. Tummanand Fretsod6). (Cited by Perera, J. in Lorna Maritime Corporation casepage 138).
"That an act done for another person, though without any precedentauthority whatever, becomes the act of the principal, if subsequentlyratified by him, is the known and established rule of law. In that casethe principal is bound by his act whether it be for his detriment oradvantage". In the light of these decisions I hold that the irregularityoccasioned by the absence of a proper proxy in favour of anattorney-at-law is curable.
Sri Lanka Law Reports
 1 Sri LR.
The second objection raised was with regard to the acceptabilityof the amended petition of the defendant-petitioner. It was the con-tention of counsel for the respondent that since the original applicationwas defective there is no proper application before court and thatapplication cannot be amended subsequently. It was submitted thatthe provisions of chapter LX of the Civil Procedure Code do not inthe absence of express provisions contemplate an amendment to apetition thereunder otherwise than as expressly provided for undersection 759 (1) of the Civil Procedure Code. Hence the petition ofthe petitioner could not have been amended for the production ofMrs. Sheila Jayawardena's affidavit the absence of which was oneof the defects in the petition.
The Court of Appeal (Appellate Procedure Rules 1990 – Rule 8)permits a party "with prior permission, amend his pleadings or fileadditional pleadings or other documents within two weeks of the grantof such permission unless the court otherwise directs. Rule 15specifically states that: "These rules shall also apply mutatis mutandisto applications made to the court under any provision of the law, otherthan Articles 138, 140 and 141 of the Constitution". The abovementioned rules therefore empowers the Court of Appeal to permitamendments of any application made to the Court of Appeal. Thepetitioner had effected the amendments with permission of court. Inthese circumstances the submission that this court has no power topermit the amendment is devoid of any substance.
The 3rd objection of the respondent was that Mr. Hettiarachchicould not have filed proxy in the instant matter without a revocationof the proxy of Mrs. Sheila Jayawardena who appeared for therespondent in the District Court. To drive home this point counsel gavethe following illustration. A party intending an appeal files a valid noticeof Appeal within time but omits to file a petition of Appeal and asin the instant case tenders a petition of Appeal under section 765to the Court of Appeal notwithstanding lapse of time through anAtorney-at-law other than his registered Attorney-at-law in the lowercourt. Counsel submitted that this will lead to an incongruous positionin that the notice of Appeal having been tendered by the petitionersregistered attorney in the lower court and the petition of Appealtendered by a different attorney whilst the original proxy of theregistered Attorney still stands.
CADias v. Karawita (Da Silva, J.)103
It is to be noted that the application to the Court of Appeal is atotally different application. It does not stem from the notice of Appealand it has nothing to do with the notice of Appeal in the original court.A complete answer to this contention is found in the decision ofSeneviratne, J. in the case of Saravanapavan v. KandasamyduraF>where he observed "an application for leave to Appeal is a step whichoriginates in this court as in an application in revision and that theproxy in such an application can be filed either by the registeredattorney in the original court or by any other attorney. It cannot besaid that this will result in there being two registered attorneys andtwo proxies in the case".
Applying the above ratio it could be said that an application forleave notwithstanding lapse of time originates in the Court of Appeal.Therefore a fresh proxy could be tendered by the attorney on recordin the original Court or by a different attorney. The question of therevocation of the proxy in the original court does not arise.
The 4th point raised by the respondent was that whether thereis a petition of appeal to be admitted and entertained by the Courtof Appeal in the absence of a petition submitted to the original court.Counsel contended that for this court to give an order to admit theappeal there must be a petition of Appeal submitted to the originalcourt which has been rejected because it had been filed out of time.On a careful consideration of the provisions of section 766 it is clearthat there is no substance in this submission. On the petition of appealsubmitted to this court necessary directions could be given to theoriginal court to comply with. Section 766 specifically states that thepetition of Appeal should be presented to the Court of Appeal.
In these circumstances I reject the 4 preliminary objections raisedby the respondent and permit the petitioner to take steps to cure thedefects in the proxy by filing a duly perfected proxy within two weeksfrom today. Thereafter the main application could be listed for furtherhearing.
WEERASURIYA, J. – I agree.
Preliminary objections overruled.