IN RE. RULE AGAINST ATTORNEY-AT-LAW

005-SLLR-SLLR-1998-V-3-IN-RE.-RULE-AGAINST-ATTORNEY-AT-LAW.pdf


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In Re. Rule against Attorney-at-Law
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IN RE. RULE AGAINST ATTORNEY-AT-LAW
SUPREME COURTAMERASINGHE, J.,
ANANDACOOMARASWAMY, J.tBANDARANAYAKE, J.
S.C. RULE NO. 3/94D
FEBRUARY 06, 07, 28, JUNE 02, 03,1997
JULY 31 ST, 1997, MARCH 27TH, MAY 20, 21, 22,1998.
Rule against Attomey-at-Law – Fraudulently misleading and deceiving court -Procedure – After institution of action upto ejectment – Duties/Responsibility ofcourt, Attomey-at-Law – Judicature Act – S. 42.
The Complainant alleged that the Attorney-at-Law on behalf of one W soughtdeclaration of title in respect of land 'X', thereafter the plaint was amended twiceand the 2nd amended plaint (unstamped) contained two schedules, one referredto land X and the other to a new land, the complainant further alleged that the2nd amended plaint was not served on him. The judgment which was enteredexparte was based on the 2nd amended plaint.
It was the position of the complainant that the Attorney-at-Law fraudulently misledand deceived the District Judge and obtained a Writ of Ejectment against himfrom his land which was not the subject matter of the original action, it was furtheralleged that ejectment was obtained on the basis of the 2nd amended plaint.
Held:
The former District Judge in his evidence admitted that, the judgment wasbased on the 2nd amended plaint, with two schedules, which was tenderedin open court, and prior to signing the decree he had perused it.
He had emphatically and without hesitation or reservation, stated that hewas neither misled nor deceived by anyone and that he entered the decreebased on the 2nd amended plaint, although the attorney-at-law drafted thedecree no blame could be attached to him, and that he took full respon-sibility to what had happened.
There is no evidence to show that the then District Judge had anyintention or motive to eject the defendant or to assist the plaintiff, norwas there any evidence to show that there was any link between theattorney-at-law and the then District Judge.
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[1998} 3 Sri LR.
In the matter of a Rule in terms of s. 42 (2) of the Judicature Act.
Kolitha Dharmawardane, DSG, with Shavindra Fernando SSC. and Nerin PulleSC for Attorney-General.
Rohan Sahabandu with Athula Perera for BASL
Sanath Jayatileke with Upali Jayatileke for the respondent Attorney-at-Law.
Cur. adv. vult.
June 25, 1998
SHIRANI A. BANDARANAYAKE, J.
The complainant, P. B. Siyathu of Polonnaruwa, alleged that PriyanthaSamarasinghe, Attorney-at-Law filed DC, Polonnaruwa case No. 5118on 27.08.1990 on behalf of W. A. Weerawardena seeking a declarationof title against P. B. Siyathu, in respect of a land which is describedin the schedule to the said plaint. Thereafter on 20.02.1991 PriyanthaSamarasinghe filed an amended plaint in the same case containingthe same schedule as in the first plaint filed on 27.08.1990 seekinga declaration of title and an order preventing the defendant fromobstructing the possession of the plaintiff. Subsequently, on 10.07.1991,in the same case, Priyantha Samarasinghe filed two amended plaints.One amended plaint was stamped and bore the seal of the court withone schedule describing the same land as that described in the originalplaint dated 27.08.1990. The second amended plaint dated 10.07.1991was unstamped and did not bear the seal of the court. The secondamended plaint contained two schedules, one of which related toanother land in addition to the land described in the two plaints earlierreferred to.
Siyathu, the complainant alleged that Priyantha Samarasinghe,Attorney-at-Law for the plaintiff in DC, Polonnaruwa case No. 5118,fraudulently misled and deceived the District Judge of Polonnaruwaand obtained a writ of ejectment against the said Siyathu from hisland, which was not the subject matter of the original action filed inDC, Polonnaruwa case No. 5118. It is alleged that ejectment wasobtained on the basis of the second amended plaint which was filedon 10.07.1991.
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In Re. Rule against Attorney-at-Law
(Shirani A. Bandaranayake, J.) ,
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The observations of Priyantha Samarasinghe were called, for andhe failed to satisfactorily explain his conduct to this court. Thereforeon 13.09.1994 a Rule was issued directing Priyantha Samarasingheto show cause why he should not be suspended from practice or beremoved from the Office of Attorney-at-Law of the Supreme Court foracts of deceit and/or malpractice he had committed in terms ofsection 42 (2) of the Judicature Act.
The complainant, P. B. Siyathu and his Attorney-at-Law, M. M.Aponsu were called to give evidence in support of the Rule. The thenDistrict Judge, Polonnaruwa, Buddhadasa Vithariage, and the plaintiffin DC, Polonnaruwa case No. 5118, M. A Weerawardena gaveevidence for the respondent.
The Rule issued on the respondent stated as follows:
The respondent on behalf of M. A. Weerawardena, the plaintiff incase No. 5118 of DC, Polonnaruwa, filed plaint as Attorney-at-Lawon 27.08.1990 seeking a declaration of title against P. B. Siyathuin respect of a land which was described in the schedule to thesaid plaint;
On 20.02.1991, the respondent filed an amended plaint in the samecase (No. 5118), containing the same schedule describing the sameland as in the schedule to the first plaint filed on 27.08.1990 seekinga declaration of title and preventing the defendant from obstructingthe possession of the plaintiff;
On 10.07.1991, in the same case (No. 5118), the respondent filedtwo amended plaints, one bearing stamps and the court frank withone schedule describing the same land as described in the plaintdated 27.08.1990 and the amended plaint dated 20.02.1991, andone which does not bear stamps or court frank containing twoschedules with an extra land included in addition to the schedulereferred to in the other plaints, referred to above and thereby therespondent has fraudulently misled and deceived court to issuea writ of ejectment against the said P. B. Siyathu, the defendantin DC, Polonnaruwa case No. 5118, against property which wasnot the subject matter of the said action.
According to the submissions made by M. M. Aponsu, the Attorney-at-Law for the respondent in District Court, Polonnaruwa case
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No. 5118, the original permit holder for the land in dispute had beenone Siriyathi. This was conceded by the plaintiff in case No. 5118.While the plaintiff in case No. 5118 made a claim to this property,the respondent had made an application for substitution on the basisthat he was the successor to the original permit holder. When therespondent in case No. 5118 sought substitution, he had been inenjoyment only of the paddy land. An amended plaint was filed on
(P4) by Priyantha Samarasinghe which included a sched-ule referring to the paddy land. This had been amended again on
(P5) and the amendment had one schedule which referredto the paddy land. This amended plaint was stamped and bore theseal of the court. On the same day, viz 10.07.1991, another amendedplaint had been filed. This was not stamped and did not bear theseal of the court (P6). However, it contained two schedules: The firstschedule referred to the paddy land (P6A) which was in the firstamended plaint dated 20.02.1991 (P4); and the second amended plaintdated 10.07.1991 (P5). The second schedule referred to a highland(P6B) with an extent of 4 acres and 2 roods.
The position of M. M. Aponsu was that the first amended plaint(P4) and the stamped amended plaint (P5) not only had one schedulereferring to the paddy land but that there was no prayer either forrestoration of possession or dispossession. His position was that theamended plaint dated 10.07.1991, which did not bear any stamps orthe seal of the court (P6) but had two schedules, contained a prayerfor dispossession and restoration of possession. M. M. Aponsu, inhis evidence under cross-examination, stated that this document (P6)was never served on him and that this is the document on whichhis client Siyathu, the complainant in this matter, was ejected fromthe premises. Aponsu further stated that, although as a practice healways examined the record, he saw P6 only after the judgment hadbeen entered by the District Judge, Polonnaruwa.
According to the record of case No. 5118 of the District Court,Polonnaruwa, Priyantha Samarasinghe had filed the plaint in this caseon 12.09.1990. The District Judge had entertained it and had sub-sequently issued summons returunable on 26.09.1990. The caserecord and the evidence which was led reveals that the defendanthad neither filed his answer nor had he moved for an adjournment.Although the Judge could have fixed this for ex-parte trial, since thepetition and afidavit were filed, the then District Judge, Mr. Vithanage,had fixed the matter for inquiry. On 31.10.1990 the case was called
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for inquiry and as an adjournment was sought by PriyanthaSamarasinghe, the inquiry was refixed for 28.11.1990. The matter inquestion was taken up for inquiry on that day and on 05.12.1990 thethen District Judge had stated that his Order would be delivered on
In his Order the then District Judge, after examining thelaw and entertaining the plaint, had made the following decisions:
, there were certain defects in the plaint and he therefore
directed the plaintiff to file an amended plaint;
. the application made by Aponsu to reject the plaint was
disallowed.
The next date given for the purpose of filing the amended plaintwas 22.02.1991. The amended first plaint (P4) was filed on that dayand the respondent was asked to file his answer on 24.04.1991. On
the answer was not filed and a further date was given,namely 05.06.1991. On 05.06.1991, as the Attorney-at-Law for theplaintiff was sick, a further date was given by the District Judge.Accordingly, the answer was due on 19.06.1991. On 19.06.1991, theplaintiff, his lawyer, the respondent and his lawyer were present incourt. The Journal Entry reads as follows:
“according to the original order ‘for amended plaint’.
A date was given to tender the amended plaint and on 10.07.1991,according to the Journal Entries, it appears that the amended plaintwas filed. The then District Judge, Polonnaruwa, Mr. Vithanage, statedin his evidence that, during his tenure at Polonnaruwa, an originalplaint was usually filed in the registry. Subsequent answers, amendedplaints and replications were either filed in court or in the registry,with a copy issued to the other party. When pleadings were filed inthe registry they would be entered in the register, the subject clerkmaking a minute and sending the record to the registry. When therewere amended plaints and answers, the lawyer or his clerk enteredthem in the register and the subject clerk would enter them in theregister and date stamp the record. Thereafter it would be sent tothe binder, and finally to the Judge's chamber for Orders. Accordingto Mr. Vithanage, when an amended plaint or any other pleadingswere filed in open court, the documents would be minuted and theMudliyar would send them to the subject clerk. Regarding the amendedplaint with two schedules (P6), Mr. Vithanage's evidence was that thedocument was filed in open court.
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Thereafter a date was given for filing the answer. The answer wasnot tendered on 14.08.1991 and the trial was fixed for 28.08.1991.On the day of the trial all the parties were present and the DistrictJudge had given a date, viz 11.09.1991, for written submissions.Before the trial date, the Attorney-at-Law for respondent, Aponsu, filedhis answer in the registry. His written submissions were filed; certainsubmissions were on the basis that the plaint should be rejected andthat his answer should be accepted. The District Judge delivered hisjudgment on 25.09.1991. Mr. Vithanage conceded that in the first plaint(P2) the plaintiff had asked only for a declaration and that there wasno prayer for ejectment. He also conceded that in the amended plaintwith two schedules, dated 10.07.1991 (P6), there was a prayer forejectment.
Mr. Vithanage stated in his evidence that according to the practiceduring his tenure at the District Court, Polonnaruwa, once judgmentwas entered, counsel for the plaintiff prepared and tendered thedecree. This was done to assist the court and although the court hadto draw the decree, the judgment creditor prepared a draft decreeand tendered it to the court. The draft was examined by the subjectclerk to see whether it was in conformity with the judgment.Mr. Vithanage said that the following were included in his decree:
, the first paragraph recited the events that took place priorto the date of the trial;
(£>). the second paragraph stated that the judgment had beenentered for the plaintiff as prayed for;
.in the third paragraph there was a declaratory decree as
far as the land in the first schedule was concerned;
.in the fourth paragraph a permanent injunction was issued
with regard to the land described in the first schedule, andan order of ejectment in respect of the land described inthe second schedule;
.there was an order that the plaintiff be placed in possession
and a declaration that the plaintiff had been in undisturbedpossession. There was an order of costs.
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Mr. Vithange stated that his judgment in case No. 5118 of DistrictCourt, Polonnaruwa, was based on the document marked P6: thatis, the amended plaint with two schedules filed on 10.07.1991, whichhe said was tendered in open court. Two months after the judgmentwas entered, he had entered the decree; prior to signing the decreehe had checked it. Mr. Vithange in his evidence emphatically andwithout hesitation or reservation stated that he was neither misled nordeceived by anyone and that he entered the decree based on P6according to the documents as the documents were in order. Further,he stated that, although Priyantha Samarasinghe drafted the decreeno blame could be attached to him and that he took full personalresponsibility for what had happened.
Learned senior state counsel submitted that there was a seriesof errors committed by the then District Judge at Polonnaruwa, butall those errors were in one direction. In other words, the errors werein favour of the plaintiff in case No. 5118. He further submitted that,taking into consideration the events which took place, it was clearthat Priyantha Samarasinghe would have assisted the then DistrictJudge to eject the defendant from his property in case No. 5118. Iam not inclined to accept this position. There is not an iota of evidenceto show that the then District Judge had any intention or motive toeject the defendant or to assist the plaintiff in this case. Nor was thereany evidence to show that there was any link between PriyanthaSamarasinghe and the then District Judge, Polonnaruwa. Moreoverthe charge against Priyantha Samarasinghe is that he had misled anddeceived court to issue a writ of ejectment against Siyathu. Theevidence led clearly showed that there was nothing to indicate thatPriyantha Samarasinghe had either misled or deceived court. Takinginto consideration the evidence that was led by the complainant andthe respondent, I hold that there was no proof to show that PriyanthaSamarasinghe had fraudulently misled and deceived court to issuea writ of ejectment against P. B. Siyathu, the defendant in DC,Polonnaruwa case No. 5118. I hold that the charges against therespondent have not been proved and I make order that the Ruleissued against the respondent in these proceedings be discharged.
AMERASINGHE, J. – I agree.
ANANDACOOMARASWAMY, J. – I agree.
Rule discharged.