( » )1905.October 3*
Present: Sir Charles Peter Layard, Kt., Chief Justice, andMr. Justice Wood Benton.
GARGIAL et al. v. SOMASUNDRAM CHETTYD. C., Kandy, 16,391.
Proctor refusing to take part in trial—Appearance—Judgement inter partes—Ex parte order—Appeal.
Where the defendant's proctor appeared on the day of trial andmoved for a postponement on the ground that, owing to the absenceof his client from Ceylon, he was enable to get ready for the trial,and on the District Judge refusing to grant ' the application, retiredfrom the case and declined to take part in the proceedings, and' theDistrict Judge after hearing some evidence for the plaintiff enteredjudgment in his favour—
Held, that the proctor for the defendant must be taken to haveappeared for his client at the trial and that the judgment must beconsidered as pronounced inter partes and not ex parte.*
Laxabd, C.J.—A party aggrieved by an ex parte order shouldnot . appeal, but should move the Court which passed the order tovacate it.
HE plaintiffs instituted this action for a declaration of title to acertain land; the defendant denied the title of the plaintiffs
and claimed the property by virtue of a Fiscal’s transfer dated 18thJuly, 1873. On the day fixed for the trial of the case the defendant’sproctor moved for a postponement on the ground that his client wasill in India, and also that he had taken away the title deeds on whichhe relied. The learned District Judge having refused the motion,the defendant’s proctor declined to take any part in the proceedings.
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After hearing one witness called by the plaintiff, the District Judgegave judgment for the plaintiff as prayed with costs. . The defen-dant appealed.
H. A. Jayewardene, for appellant.
J. de Sarom (jr.), for respondent.
Cur. adv. vult.
3rd October, 1905. La yard C.J.—
The whole of the argument in this case by the appellant’s counselwas based on the assumption that the judgment now under appealwas an ex parte judgment, and that there was no appearance inthe court below either by the defendant or by his pleader. Insupport of that argument he cited to us a large number of Indiancases. The judgments in those oases are not binding on us, buteven if they were there is a great distinction to be drawn betweenour Code and the Indian Code. The Indian Code provides thatwhere a summons is issued the defendant should be called uponto appear and to answer the claim “ in person or by a pleader dulyinstructed and able to answer all material questions relating to thesuit, or by a pleader accompanied by some other person able toanswer all such questions.” There is no similar provision in ourCode, which merely directs that the summons to the defendantshould require him to appear and answer the plaint either in personor by his pleader, and in our Code it- is distinctly explained that“ a party appears in court when he is there present in person to■conduct his case or is represented there by a Proctor or other dulyauthorized person.” As far as I can understand, the reasons theIndian Courts gave in the cases cited to us appear to be that whena pleader or vakil appears in court in view of the provision of section64 of the Indian Code of Civil Procedure, it is necessary' that thepoint should not only be satisfied with the physical appearanceof the pleader, but that he is duly instructed and able- to answerall material questions relating to the suit, and that in any case,unless a pleader states that he is duly instructed, his physical appear-ance in court is not treated as an appearance under the IndianCode. If he says, “ Although I am here in court-to-day I have receivedno instructions in the matter of this case, ” or if he says “ AlthoughI apper in court to-day I am instructed merely to move for a post-ponement of the case, ’ ’ he cannot be treated as having made anyappearance in the first case, and in the second his appearance hasamounted to the purpose of the action made by him. Some of theIndian decisions seem to disclose that where a pleader appears andsays, “ I hold a brief, but I have not had time to read it ” the court
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1905. must treat the physical appearance of such person as an appearance,October 3. because holding a brief shows that he was duly instructed. Now,"LiTutD C.J. in the present case there is absolutely no material before the courtupon which this court could hold that Mr. Jonklaas was not dulyinstructed, even if it adopted the view that the physical appearanceof a proctor duly appointed is not a good appearance in our courtupless he is fully instructed. There is nothing to show that Mr.Jonklaas, the defendant’s proctor, did not receive instructionssufficient to enable him to conduct the defence, had there beenevidence available to put before the court. He had repeatedly,throughout the course of the proceedings, moved for postpone-ments on different grounds, and on the occasion in question he didnot move for a postponement on the ground that he had not beeninstructed, but on the ground that certain evidence was not forth-coming, namely, certain deeds which were necessary to establishthe title of the defendant, and also that certain witnesses had notbeen summoned. Counsel says that Mr. Jonklaas was not to.blame for those witnesses not being summoned, and that his clientwas to blame both for the deeds not being before the court and for thewitnesses not being there on the day of-trial. If Mr. Jonklaas,according to our Code, did appear on that day, then he was, Ithink, in exactly the same position as if the defendant himselfhad appeared on that day, because he was the duly appointedproctor of the defendant, and was authorized by his proxy to bepresent in court and to represent the defendant in every stage inwhich the defendant himself could appear and make an application.
Now, if the defendant had been present that day in court and had:said, “ I at some time posted my deeds to India, and I have not.summoned my witnesses, and I want time to get my deeds baokand to summon my witnesses, ” surely it could not be said the.'defendant had not appeared in- court; he did appear but was notready, and having appeared in court the court would be at libertyto say. “ I am not going to grant you a postponement because you.have not got ready; you must go on with the case ; ” and if the courthad made that order the defendant could not rush out of courtand say, ‘‘ I never appeared at the trial, ” and then, judgment havinggone against him, appeal to this court saj-ing, it is an ex parte order-and I wish this court do set it aside. ” Now, if this was an ex parteorder, I cannot understand how an appeal can be entertained bythis court. The ordinary principle is that, where parties are affected-hy an order of which they have had no notice, and which had -beenmade behind their back, they must apply in the first instance to-the court which made the ex parte order to rescind the order, on theground that it*was improperly passed against them. The appellant’s
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argument is, “I am not bound by the judgment oi the District 1906.
Judge, because I was not in court and I was not represented in Qcto6er 3~
court. ” That point had been dealt with by Bonser, C.J., in the case Latabd C.J.
of Habibu Lebbe t>. Punchi Etana, reported in 3 C. L. R. 84. He
there recognized the power of a judge of first instance to open
up a judgment given in the absence of one of the parties, and he
stated that it had long been the practice—and a practice which had
been expressly approved by this court—that in cases of that sort
application should be made in the first instance to the court which
pronounced the judgment, and that there should be an appeal to
this court only if the judge of the court of first instance refused to
.set it aside. There is no doubt in my mind that that had been
the practice of this court for the last thirty years at least, and I
believe that it existed prior to that date.
I agree with Bonser C.J. in thinking that that is the most con-venient course to pursue and that this court should always insistupon its adoption,, particularly because the Court of Appeal inEngland in the case of Vint v. Hudspith (1), lays down, that althoughthe Court of Appeal in England may possibly have jurisdiction tohear an appeal from a judgment given by default, yet that it isnot desirable that the court of appeal should encourage such appealsto be brought before the application has been made to the courtor original jurisdiction. If therefore Mr. Jayewardene for theappellant had convinced me that there was no appearance, andthat Mr. Jonklaas’s presence in the District Court on the day oftrial did not amount to such an appearance as would enable thecourt to proceed on with the case and hear it, as though interpartes and to give a final judgment in it, still I should havedismissed the appeal on the ground that the application must bemade by the appellant in the first place to the District Court.
I* may say that in Chief Justice Bonser’s judgment he seems torecognize that the appearance of a proctor who has been authorizedto appear in the District Court for his client would be a good appear-ance even though the proctor stated that he had no instructions,because in thpt case he held that it was not competent for oneproctor to instruct another proctor to appear for him to make anapplication in court, and therefore that the plaintiff, in a case inwhich his own proctor had instructed another proctor to appearfor him’, could not be considered to be there in person or in the personof his proctor who was not there at all. I gather from the reasoning ofChief Justice Bonser that, if the plaintiff’s own proctor had appearedthe case would be different. I have given my view of these points,because I have been expressly asked to do so by the parties.
.(1). (1885) 29 Ch. D. 322
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1906. I now turn to the application made by Mr. Jayewardene that weOctober 3. should treat- the judgment of the District Court as a judgment interLayahd O.J. Partes, and, as an indulgence in view of Mr. Jayewardene’s statementsthat he holds in his hands a deed which, if it -had been producedbefore the District Judge, would, on the issues framed by the judgeat the trial, have entitled the defendant to a judgment on thoseissues, grant him a new trial on terms. It would be hard to deprivethe defendant of his land, if it is really true that he has got a goodtitle to it. Therefore, purely as an indulgence, it is ordered thatin the event of the defendant paying into court, within a fortnightof this record being returned to the District Court, a sum of Es. 500on account of costs, with liberty to the plaintiff on taxing his billqf costs for all the proceedings up to date in the District Court andof thin appeal to draw such amount of that sum of Es. 500 as wouldcover his bill of costs so taxed, and in the further event of defendantbeing prepared to go to trial four weeks from the date of the receiptof this record in the District Court, without permission to the courtto grant any postponement at the defendants’ instance in theDistrict Court, then the decree of the District Court dated the 21stJune, 1905, will be deemed set aside, and the case will be proceededwith as a new trial with liberty to the parties to settle fresh issues,but in no event to read in evidence the evidence recorded as takenat the first trial.
Wood Eenton J.—
I entirely agree with what my lord the Chief Justice has said,and concur in the order he has made.
GARGIAL et al. v. SOMASUNDRAM CHETTY