006-SLLR-SLLR-1997-V3-JAYATISSA-HERATH-v.-DAYARATNE.pdf
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Sri Lanka Law Reports
[1997] 3 Sri LR.
JAYATISSA HERATH
v.
DAYARATNE
COURT. OF APPEAL.
EDUSSURIYA, J.
CALA 136/89.
D.C. MARAWILA 528/M.
JUNE 10. 1997.
Civil Procedure Code – Section 463 – Defence of a Public Officer by Attorney-General – State Counsel assigned – Applicability of section 5(14) (b) of the StampDuty Act.
Held:
There was no application by the Attorney-General under section 463undertaking the defence of the defendant-respondent. However the Attorney-General is entitled to assign a State Counsel to appear for the defendant-respondent.
It is only if an application has been made by the Attorney-General and hisname substituted as a party defendant, that any document filed by the Attorney-General is exempted from Stamp Duty, because the Attorney-General is then aparty to the case.
In this case since the Attorney-General has not undertaken the defence, and hehas merely assigned a State Counsel to appear for the defendant neither theProxy nor the Answer filed on behalf of the defendant are exempt from StampDuty. Therefore both the Proxy and Answer must be rejected and the case fixedfor ex parte trial.
AN APPLICATION in Revision from the Order of the District Court of Marawila.Cases referred to.
Vettivelu v. Wijeratne – 60 NLR 442.
Secretary to the Treasury v. Mediwaka – 74 NLR 503.
J. W. Subasinghe. PC. with J. A. J. Uda watte for appellant.
Adrian Pereira, S.S.C. for respondent.
Cur. adv. vult.
July 17, 1997.
EDUSSURIYA, J.
This is an application to revise and set aside the order of thelearned District Judge of Marawila, dated 7th December 1989 which
Jayatissa Heralh v. Dayaralne (Edussuriya, J.)
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held 1) that the Attorney-General can without strict compliance ofsection 463 of the Civil Procedure Code undertake the defence of apublic officer and assign a State Counsel to appear for such publicofficer 2) that where the Attorney-General came forward to (aefiSS®o ®€Oac! Q SO) to appear on behalf of the defendant who is apublic officer all documents that are filed on behalf of the defendantare exempt from stamp duty under section 5(14) (b) of the StampDuty Act.
On those grounds the learned District Judge refused theapplication of the plaintiff-petitioner to reject the proxy and answerfiled by a member of the unofficial Bar, and fix the case for ex partetrial on the basis that there is no Answer filed by the defendant-respondent properly before Court.
The learned District Judge relied on the decisions in Vettivelu v.Wijeratnem and The Secretary to the Treasury v. Mediwakam inarriving at his decision.
In the case of Vettivelu v. Wijeratne (supra) the Deputy Solicitor-General had stated from the Bar that when public officers are sued intort the Crown does not take up their defence but the Attorney-General instructs a Crown Counsel to appear for them and TheirLordships of the Supreme Court held that a Crown Counsel beingan Advocate is not unqualified to appear in Court and representparties in private litigation, and accordingly the fact that theAttorney-General has not made an application under section 463 ofthe Civil Procedure Code does not disentitle the Attorney-Generalfrom assigning a Crown Counsel to appear for a defendant who is apublic officer.
In the case of The Secretary to The Treasury v. Mediwaka (supra)where a proxy was filed by the Crown Proctors on behalf of theperson holding the office of the Secretary to the Treasury at that timeand where Crown Counsel appeared at the trial, it was observed bySirimanne, J. with Wijayatillake, J. agreeing that “It is obvious that theAttorney-General had undertaken the defence of the officer
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concerned, although there was no strict compliance with section 463ot the Civil Procedure Code. When public officers are sued, it is thepractice for Crown Proctors to file their proxy and a Crown Counsel toappear at the trial and this practice has been recognised andapproved in Vettivelu v. Wijeratne".
However, what Their Lordship’s decided in Vettivelu v. Wijeratne{supra) was that no objection can be taken to the practice of theAttorney-General instructing a Crown Counsel to appear for publicofficers in private litigation even though the Attorney-General doesnot take up their defence.
Therefore it is incorrect to say that the decision in Vettivelu v.Wijeratne (supra) recognised and approved a practice that theAttorney-General can undertake the defence of a public officeralthough there is no strict compliance with section 463 of the CivilProcedure Code. Besides, where an application is made undersection 463 of the Civil Procedure Code, the Court shall thensubstitute the name of the Attorney-General as a party defendant inthe action.
In this case there was no application by the Attorney-Generalunder section 463 of the Civil Procedure Code undertaking thedefence of the defendant-respondent. However, the Attorney-Generalis entitled to assign a State Counsel to appear for the defendant-respondent, but it must be borne in mind that the Attorney-Generalhas not undertaken the defence of the action against thedefendant.
It is only if an application has been made by the Attorney-Generaland his name substituted as a party defendant that any documentsfiled by the Attorney-General are exempted from stamp duty,because the Attorney-General is then a party to the case.
In this case since the Attorney-General has not undertaken thedefence, and he has merely assigned a State Counsel to appear forthe defendant, neither the Proxy nor the Answer filed on behalf of the
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Jayatissa Herath v. Dayaratne (Edussuriya, J.)
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defendant are exempt from stamp duty. Therefore both the Proxy andAnswer, in my view must be rejected and the case fixed for ex partetrial.
The application is therefore allowed with costs fixed at Rs. 3150/-payable by the respondent to the petitioner.
Application allowed.