Isek Fernando v. Rita Fernando and Others
v.RITA FERNANDO AND OTHERS
COURT OF APPEALWEERASEKERA, J., (P/CA)
A. NO. 288/92 (F).
C. MT. LAVINIA NO. 1185/L.
JANUARY 29. 1998.
FEBRUARY 27. 1998.
Civil Procedure Code ss. 28, 29, 84 – Defendant absent – Represented by anAttorney-at-law – Is the inquiry an ex parte inquiry? – What is an appearance?
Plaintiff-respondent instituted action for ejectment of the defendant-appellant fromthe land in question. The defendant-appellant filed answer denying the avermentsin the plaint and prayed for a dismissal of the action. The case was taken upfor trial on 9.11.1989, adjourned for 24.5.1990, defendant-appellant was absenton 24.5.1990. However, she had sent a letter to the counsel and the registeredAttorney requesting them to seek a postponement on the ground of ill health.The counsel produced the letter and stated that a medical certificate would beproduced before the next date of trial. The counsel for the plaintiff-respondenthad objected; thereafter the Court refused the application and fixed the case forex parte trial. On 24.2.1992 the defendant's application for vacation of the ex partedecree was refused. |t was contended that, the District Court erred in decidingto hold an ex parte inquiry when she was represented by her Attorney-at-law.
Perusal of s. 24 CPC demonstrates the fact that an appearance of a partymay be by an Attorney-at-law. When a client requests an Attorney-at-lawto make an application it is an application the Attorney-at-law makes onbehalf of the party he represents for the due administration of justice.
When Court decides to refuse an application made by counsel for theadjournment of proceedings the Court has only one option – inform thecounsel that he should proceed with the trial inter-partes.
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Appearance may be by the party in person br by his counsel or hisregistered Attorney, and where the defendant is absent but is representedby counsel or by Attorney-at-law and the Court is satisfied on the evidenceadduced by the plaintiff, Court must enter a final judgment and not anorder Nisi. Judgment must be considered as being pronounced inter-pariesand not ex parte.
"Registered Attorney present in Court when he is called to do so if hedoes not desire to enter an appearance for an absent party whose proxyhe has filed shall definitely state to Court that he is not entering anappearance and that otherwise his appearance in Court must be deemedan appearance for the party."
The trial Judge erred in law by deciding to hold an ex parte trial offendings. 84 read with s. 24 CPC.
APPEAL from the judgment of the District Court of Mt. Lavinia.
Cases referred to:
Fernando v. Fernando – SC No. 2/97 – SCM4. 6. 1997.
De Silva v. Cunasekera – 41 NLR 33.
Perumal Chetti v. Gunatilaka – 4 Balasingham reports 2.
Pieris v. Fernando – (1892) 1 SCR 67.
Garsial et al v. Somasunderam Chetti – 9 NLR 26.
Cannon v. Theiising – 30 NLR 372.
Andi Appa Chettiar v. Sanmugam – 33NLR217.
Scharenguivel v. Orr – 28 NLR 302.
Rohan Sahabandu for defendant-appellant.
Geoffrey Alagaratnam with Ms Dilanthi Herath and Ms Thushari Dharmakeerthi
June 30, 1998.
Cur. adv. vult.
Plaintiff filed action in the District Court of Mt. Lavinia praying forejectment of the defendant from the land and premises and for costs.The defendant filed answer denying the averments in the plaint and
CAIsek Fernando v. Rita Fernando and Others (Jayasinghe, J.)31
prayed for the dismissal of the action and for costs. The case againstthe defendant was taken up for trial on 09.11.89 and adjourned for
for want of time. The defendant claimed that she suddenlyfell ill a few days before the date of trial and had to be treated bya physician and consequently could not appear on 24.05.90. She says,however, that she sent a letter to her counsel and the registeredAttorney requesting them to seek a postponement on the grounds ofill health. She submits that when the case was taken up for trial on
her counsel produced the aforesaid letter and sought apostponement. The counsel also informed Court that a medical certificatewould be produced before the next date of trial. The counsel for theplaintiff objected. The learned District Judge refusing the applicationstated that there was no medical certificate before Court and that theexplanation of the appellant did not appear to be acceptable and madeorder refusing the application and fixed the case for ex parte trialagainst the defendant and the 2nd and 3rd defendants who were alsonot present in Court on summons. Consequently, ex parte trial againstthe defendant was held and judgment entered. Ex parte decree wasserved on the defendant on 07.12.90. The defendant thereafter filedpetition and affidavit praying for vacation of the ex parte decree. Theinquiry was held on 19.01.1992. At the said inquiry the defendantgave evidence and produced a medical certificate. The learned DistrictJudge by order delivered on 24.02.1992 refused the defendant'sapplication for the vacation of ex parte decree. The trial Judge observedthat “there is no indication in the record that the Attorney who appearedon behalf of the 1 st defendant did not participate at the trial and hasalso failed to raise issues or cross-examine the witnesses orparticipate in the proceedings in any other manner and the necessaryconclusion that one could draw is that there was no appearance onbehalf of the 1st defendant and it is an order made after an ex parteinquiry and the 1st defendant had not shown reasonable groundsfor her default”. This appeal is from the said order of the learnedDistrict Judge.
The counsel agreed that this matter may be disposed of by wayof written submissions and accordingly written submissions weretendered.
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The counsel for the appellant raised a question of law in the writtensubmissions as to whether the learned District Judge erred in decidingto hold an ex parte inquiry against the 1st defendant when she wasrepresented by her duly appointed Attorney-at-law although she failedto appear in Court in person on the day of the trial on the groundsof ill health.
It is, therefore, necessary to examine the relevant provisions inthe Civil Procedure Code that governs appearance of parties by anAttorney-at-law and also the provisions relating to ex parte trial.Section 24 reads as follows:
Any appearance, application, or act in or to any Court, requiredor authorised by law to be made or done by a party to an actionor appeal in such Court, except only such appearance, applications,or acts as by any law for the time being in force only Attorneys-at-law are authorised to make or do, and except when by any suchlaw otherwise expressly provided, may be made or done by the partyin person, or by his recognized agent, or by an Attorney-at-law dulyappointed by the party or such agent to act on behalf of such party;
Provided, that, any such appearance shall be made by the partyin person, if the Court so directs. An Attorney-at-law instructed bya registered Attorney for this purpose, represents the registered Attorneyin Court.
It has been held in the case of Fernando v. Fernanda!'' that whenan appointment of a Proctor is filed it remains in force until revokedwith the leave of Court or until the client dies or until the Proctordies or is removed or suspended or otherwise becomes incapableof acting until all proceedings in the action are ended and thejudgment satisfied so far as regards the client. Section 28 providesthat if a registered Attorney shall die or be removed or suspendedor otherwise become incapable to act as aforesaid at any time beforejudgment no further proceedings shall be taken in the action againstthe party for whom he appeared until 30 days after notice to appointanother registered Attorney has been given to. that party either personallyor in such other manner as the Court directs and section 29 states
Isek Fernando v. Rita Fernando and Others (Jayasinghe, J.)
that any process served on the registered Attorney of any party orleft at the office or ordinary residence of such registered Attorneyrelative to an action or appeal except where the same is for thepersonal appearance of the party, shall be presumed to be dulycommunicated and made known to the party whom the registeredAttorney represents; and unless the Court otherwise directs, shall beas effectual for the purposes in relation to the action or appeal asif the same had been given to or served on the party in person.
Perusal of section 24 no doubt demonstrates the fact that anappearance of a party may be by an Attorney-at-law. Section 28stipulates that in the event of the incapacity of the Attorney for anyreason the proceedings are held in abeyance. Section 27 of the CivilProcedure Code stipulates that the appointment of a registeredAttorney to make any appearance or any application shall be in writingby the client and shall be filed in Court. . . and, when so filed it shallbe in force until revoked. All these sections demonstrate that theregistered Attorney is an integral element in any proceedings andcannot be ignored by a Court unless there are compelling reasonsfor not doing so. When a client requests an Attorney-at-law to makean application it is an application the Attorney-at-law makes on behalfof the party he represents for the due administration of justice.Court will disallow an application only upon being satisfied that theapplication is not tenable in the circumstances. This is discretionaryand must be founded on sound reasoning. When Court decidesto refuse an application made by counsel for the adjournment ofproceedings the Court has only one option. Inform the counsel thathe should proceed with the trial. If he decides to allow the applicationhe can make good the inconvenience caused to the other party bythe payment of appropriate costs. If the Judge decides to refuse theapplication then he is left with no option but to proceed with the trialas inter-partes. In De Silva v. Gunasekera et aP> it was held thatthe proceedings are inter-partes if on the day fixed for trial an advocateentered an appearance for the defendants and applied for a post-ponement which was refused, and if the advocate thereupon withdrewfrom the case intimating that he has been instructed only to applyfor a postponement. In the present instance, the trial Judge was clearlywrong when he proceeded to hold an ex parte inquiry when the
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counsel was present in Court. It is always possible for a client toleave the case in the hands of the Attorney and not participate atthe trial. It is possible that the Attorney-at-law might even advise theclient that the matter is being taken care of by the Attorney and thatparticipation at the trial by the client is unnecessary. We often seethis happen. As stated in Perumal Chetti v. GunathilakaP> there is norequirement for the defendant to appear personally as it is sufficientif he is represented by his Proctor.
Section 84 of the Civil Procedure Code provides for a situationwhere there is a default.
It provides that if the defendant fails to file his answer on or beforethe day fixed for the filing of the answer, or on or before the dayfixed for the subsequent filing of the answer or having filed his answer,if he fails to appear on the day fixed for the hearing of the action,and if the Court is satisfied that the defendant has been duly servedwith summons, or has received due notice of the day fixed for thesubsequent filing of the answer, or of the day fixed for the hearingof the action, as the case may be, and if, on the occasion of suchdefault of the defendant, the plaintiff appears, then the Court shallproceed to hear the case ex parte forthwith, or on such other dayas the Court may fix. Section 84 read with section 24 defines whatconstitutes appearance. What it says by “appearance'1 is that anappearance may be by the party in person or by his counsel or hisAttorney and therefore where the defendant is absent but is repre-sented by counsel or by Attorney-at-law and the Court is satisfiedon the evidence adduced by the plaintiff, Court must enter a finaljudgment and not an order nisi as in the earlier instant. Judgmentmust be considered as being pronounced inter-partes and not ex parte.Peiris v. Fernanda and Gargial et al v. Somasundaram ChetttP. InCannon v. Thelisincf' Akbar, J. held that where the defendant wasabsent but his Proctor was present the Court of Requests was wrongin entering judgment by default. In Andi Appa Chettiar v. SanmugarrF1it was held that the presence in Court when a case is called of theProctor on record constitutes an appearance for the party from whomthe Proctor holds the proxy unless the Proctor expressly informs Courtthat he does not on that occasion appear for the party. Where in
CA Isek Fernando v. Rita Fernando and Others (Jayasinghe, J.)35
an action the claim of the plaintiff is traversed in the answer and thereis an appearance for the defendant the evidence should be taken upin support of the plaintiff's case. It is significant that in the case ofAndi Appa Chettiar v. Sanmugam Chettiar (supra) that the Court laiddown the definite rule to the effect that the Proctor present in Courtwhen he is called to do so if he does not desire to enter an appearancefor an absent party whose proxy he has filed should definitely stateto Court that he is not entering an appearance and that otherwisehis appearance in Court must be deemed an appearance for the party.In Andi Appa Chettiar case (supra) the facts are as follows: In a Courtof Requests a plaint was filed and thereafter the defendant filedanswer. On the day of the trial the Proctors on record for both theplaintiff and the defendant appeared but the defendant was absentwithout excuse. The defendant's Proctor stated to Court that he hadno instructions and no material on which to proceed with the case.Thereupon, the learned Commissioner journalized as follows: "it isuseless to frame issues and I enter judgment for the plaintiff as prayedfor with costs and issued decree. Thereafter, the Proctor for defendantfiled affidavit from the defendant and moved for the reasons thereinthat the Court be pleased to set aside the judgment against thedefendant and permit him to proceed with the case. The Court refusedthe application. The Judge observed that the said judgment wasentered not ex parte because the defendant was present through hisProctor, but inter-partes and that the Court had no power to set asidethe order. The defendant thereupon appealed from the said order.At the hearing before the Supreme Court two matters came up forconsideration. Firstly, was there an appearance for the defendant inthis case and secondly, was a judgment inter-partes or judgment bydefault ex parte. Here the parties are different and need not beconsidered. Macdonell, CJ. stated that Court was clearly of the opinionthat as regards the first proposition above there was an appearancefor the defendant in this case. He had given a proxy to a Proctorwho had filed the same, so that there was an appearance in Courtauthorised by law to be made in an action which could be made bya Proctor duly appointed. The Proctor on record was present in Courtand stated certain matters in connection with the case on behalfof his client, viz that he had no instructions. This was clearly anappearance for the client. Lyall Grant, J. in Scharenguivel v. Or^]
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stated that it has never been held that a Proctor for the plaintiff whohas received a proxy and instructions for the preparation of a plaintis entitled to avoid final judgment. . . stating that he had receivedno instructions. I think the dictum holds good equally where, as inthe present case, the client is the defendant in the action. When theProctor on record is in Court. . . when the case is called. Then eitherthe client is also personally present or he is not. If he is personallypresent then beyond question he has appeared. If he is absent thepresence of his Proctor of record is prima facie an appearance forhim in the absence of anything that appears to the contrary.
Garvin, SPJ. in his separate judgment observed: “but a party maymake an appearance by a Proctor duly appointed by him. . . Courtmust know and have some means of ascertaining whether a partyappears and the ordinary test of such appearance must be thepresence of the party or his Proctor. If the Proctor though presentdoes not wish his presence to be construed as an appearance onbehalf of his client, he must immediately inform Court that he doesnot desire to and is not entering or making an appearance in thecase. This must be done dearly and unambiguously. It is not sufficientas in the case under consideration to say that he has no instructions.A Proctor who has no instructions may nevertheless do much for hisclient and in his interests. The Court is entitled to know at the outsetwhether the Proctor is making an appearance for his client or notand unless he states that he is not making such an appearance itis entitled to treat his presence as an appearance and to proceedas if the party had appeared.. ." Lyall Grant, J. in his judgment stated:“CPC makes it clear; A party appears in Court when he is there presentin person to conduct his case, or is represented there by a Proctoror other duly authorised person". . . we have not in Ceylon thequalifications imposed in the Indian Code Order V, rule 1, there theProctor must be duly instructed and able to answer all materialquestions relating to his client. . . As I understand the reason forallowing a decree nisi in cases of default is because there may bean excellent reason for non-appearance, eg. no notice of the datemay have been served or there may be some other convincing reasonfor the person's non-appearance. . . I find it difficult to see why thestatement that the Proctor has no instructions, no reason being given
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should .place the litigant in a better position than that in which heis placed by an application being made on his behalf for a postpone-ment on the ground that for stated reasons his Proctor has noinstructions.
According to the proceedings of 24.5.90 the 1st defendant wasrepresented by his duly appointed Attorney. An application was madefor a postponement upon instructions the Attorney received from thedefendant. Mr. Sahabandu submitted that the trial Judge erred inlaw by deciding to hold an ex parte trial against the 1st defendantand therefore offended section 84 read with section 24 of the CivilProcedure Code. He further stated that the proper procedure wouldhave been for the trial Judge to state that it is an inquiry inter-partesand instructed the Attorney representing the 1st defendant to proceedwith the trial. The application by the 1st defendant for the vacationof the order of 24.5.90 was refused by the trial Judge on the basisthat the defendant did not participate in the proceedings and that hehad not raised issues or cross-examined the witnesses or participatedin the proceedings in any other manner and that the only and thenecessary conclusion is that the defendant failed to appear and thatthe duly appointed Attorney was also in default. Mr. Sahabandusubmits that this conclusion is erroneous. I am inclined to agree withthese submissions. Accordingly, I set aside the Order of the learnedDistrict Judge dated 24.02.1992 and direct the Registrar to send thecase back to the District Court of Mt. Lavinia for a trial de novo. Imake no order for costs.
WEERASEKERA, J. (P/CA) – I agree.
ISEK FERNANDO v. RITA FERNANDO AND OTHERS