JINADASA AND ANOTHER v. SAM SILVA AND OTHERS

008-SLLR-SLLR-1994-V1-JINADASA-AND-ANOTHER-v.-SAM-SILVA-AND-OTHERS.pdf


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JINADASA AND ANOTHERv.
SAM SILVA AND OTHERS
SUPREME COURT.
BANDARANAYAKE, J.
AMERASINGHE, J. ANDDHEERARATNE, J.
SC APPEAL NO. 41/91.
SC SPL. LA NO. 145/90CA 1219/82.
DECEMBER 02ND AND 03RD, 1991.
Re-listing – Application for re-listing petition for certiorari dismissed for want ofappearance – Is the giving of reasons for order of reinstatement of appealnecessary? – Inherent jurisdiction to order re-listing – Sufficient cause – Validreason – The right to a hearing – Due notice – Right to legal representation (s. 24Civil Procedure Code) – Death of Counsel – Belated reliance on excuses -Registered Attorney – Proxy in terms of Form 7 of the First Schedule to the CivilProcedure Code – Absence of registered Attorney without sufficient cause -Section 24 and 27 Civil Procedure Code – Rule 4 of the Supreme Court (Conductof and Etiquette for Attorneys-at-Law) Rules 1986 – Power to retain Counsel -Rule 8 of the Supreme Court (Senior Attorneys-at-Law) Rules – Junior Counsel -Retaining and instructing Junior Counsel.
A petition for a writ of certiorari to quash an order made by the AssistantCommissioner of Agrarian Services and Assistant Commissioner of AgrarianServices (inquiries) was filed in the Court of Appeal on 16.09.82. The applicationfor notice was supported in the Court of Appeal by Mr. Nimal Senanayake on24.09.82. He died on 14.05.88. The matter came up for hearing on 03.05,89.There was no appearance for the petitioner. The Court noted that the "late Nimal
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Senanayake had appeared for the petitioner* and ordered the matter to be listed‘in due course*. The case came up again on 16.05.89. The petitioners wereabsent and unrepresented and the Court dismissed the application. On 19.09.89Mr. Saliya Mathew the registered Attorney for. the petitioner tendered a petitionwith an affidavit from the second petitioner and moved that the case be re-listed.After hearing Counsel, the Court on 28.09.90 set aside the order of dismissal anddirected that the case be re-listed. Special leave to appeal from this order wasgiven by the Supreme Court.
Held:
An application for a writ of certiorari is not an appeal though it does partakein certain limited ways of the nature of an appeal. The order of the Court ofAppeal was not a judgment pronounced at the termination of the hearing of anappeal but rather an order on an incidental question viz. an application for re-listing. There was therefore no duty, in terms of section 774 of Civil ProcedureCode, which obliged the Court of Appeal to give reasons for its decision in thiscase.
2(a) A judge must ensure a prompt disposition of cases, emphasizing thatdates given by the court, including dates set out in lists published by a court'sregistry, for hearing or other purposes, must be regarded by the parties and theircounsel as definite court appointments. No postponements must be granted, orabsence excused, except upon emergencies occurring after the fixing of thedate, which could not have been anticipated or avoided with reasonablediligence, and which cannot be otherwise provided for.
In the instant case the matter was listed almost a year after the death ofcounsel. When it came on for hearing, the Court, finding that the petitioners wereabsent and unrepresented suo motu ordered the matter to be listed in duecourse. The (act that it was listed again in 13 days is not a legitimate cause forcomplaint.
Since there is no legislation governing the matter, the power to restore theapplication to re-list is in the exercise of the Court's inherent jurisdiction.
The burden of alleging and proving the existence of facts, on the basis ofwhich a court may decide that there is good cause for absence, rests on theabsent party who seeks reinstatement. This burden is not displaced by anypresumption in his favour. A court will hold that there was sufficient cause if thefacts and circumstances established as forming the grounds for absence are notabsurd, ridiculous, trifling or irrational but sensible, sane, and without expectingtoo much, aggreable to reason. It cannot hold that, in its judgment, there issufficient cause to reinstate the matter unless the grounds for coming to that
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conclusion were reasonable. No distinction can be drawn between ‘sufficientcause’ and ’valid reason*.
Where a party has established that he had acted bona fide and done hisbest, but was prevented by some emergency, which could not have beenanticipated or avoided with reasonable diligence from being present at thehearing, his absence may be excused and the matter restored. The Court cannotprevent miscarriages of justice except within the framework of the law: it cannotorder the reinstatement of an application it had dismissed, unless sufficient causefor absence is alleged and established. It cannot order reinstatement oncompassionate grounds, inasmuch as it is a serious thing to deny a party his rightof hearing, a court may, in evaluating the established facts, be more inclined togenerosity rather than being severe, rigorous and unsparing.
6(a) The right to be heard has little or no value unless the party has beengiven a reasonable opportunity of being heard. He must have due notice. Themere fact that the registered Attorney had failed to give the party information ofthe date is no excuse. The due notice should be of where and when the case willbe heard.
'Due notice’ for the purpose of the case under consideration, is makinginformation available in the usual way, that is to say. in accordance with theprevailing law, rules, practices and usages of the Court. Where information of theappointed date for hearing is usually set out in a list prepared and published bythe court's registry, and information of the hearing has been given that way, that isdue notice to the parties and their counsel. The case before court had been listedin the usual way. and there was, in the circumstances, due notice, although theparties may or may not have been actually aware of the date of the hearing.Notice, in the sense of actual knowledge must be distinguished from imputedknowledge of the date of the hearing which ’due notice" in the relevant sense,implies.
The remoteness of the village in which the petitioner resided, the’disturbances in that area’, the lack of ’proper communication channels’, dueeither to the remoteness of where the parties lived or the ‘disturbances’,therefore, have no relevance to the question of ’due notice’. Even if the court wasinclined to be somewhat indulgent towards the petitioner on this matter, on thebasis that they were unfamiliar with the procedures of the court, there was nojurisdiction in this case for doing so, because they had a duly appointedregistered Attorney-at-Law, Mr. Saliya Mathew who should have been aware ofthese things.
ln this case, there was due notice of where and when the matter was to beheard.
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If there is an oral hearing, then a party is entitled to be legally representedunless the legislature expressly provides otherwise. And $0, unless the legislatureprovides otherwise, a party can decide whether he will himself go into court or belegally represented in the exercise of his right, (s. 24 CPC).
The death of a party's counsel is a good and sufficient cause for thereinstatement of a matter, if it occurs during the hearing, or so near the date ofhearing, that it is not feasible to retain a substitute attorney through whom theright to be heard is exercised. The death of Mr. Senanayake was neither duringor near the date of hearing. In the circumstances of this case, the death ofcounsel was not a sufficient cause for reinstatement.
Belated reliance by the petitioners on inability to retain Counsel because(a) their movements were restricted (b) they lacked financial means, (c) terroristsmight have punished them, is not relevant. Belated reflections on irrelevant sideissues and matters which are not of decisive importance should be discouragedin the interests of the expeditious disposal of the work of the appellate courts.Here the excuses themselves were lame excuses.
10(a) Since the petitioner had duly appointed a registered attorney they wereobliged to act through their registered attorney and not personally and, in generalthey were bound by the acts and omissions of their registered attorney. As far asthe registered attorney in this case was concerned, the binding effect of hisactions was based on the powers conferred by the terms of a standard, printedproxy in terms of Form 7 of the First Schedule to the Civil Procedure Code. It wasneither extended expressly or impliedly, as it might have been, nor was itrestricted.
If the parties are required by law or by the court to be present, then theymust be present. In the case before court they did not have to be present oncethe registered attorney had been duly appointed. In the circumstances, thepetitioners were under no obligation to explain their absence. It was the default ofthe attorrfey that had to be considered. If the attorney, without sufficient excuse,was absent on the date appointed for hearing, the court, if it dismissed theapplication, is entitled to refuse to reinstate the matter. Where no sufficient causeis shown for the absence of the attorney who was under a duty to appear, thereare no grounds for an application ex debtor justitia of any inherent power toreinstate the matter. As much the petitioners would enjoy the fruits of the successof their attorney's endeavours, they must take the consequences of his defaultsand failures.
If the attorney entitled to. appear lor the party had reasonable grounds forhis absence, the court would reinstate the matter on the basis that there wassufficient cause for his absence.
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Where an attorney-at-law “holding a proxy to appear for a client is of theview that he is unable for any reason to appear for his client at the hearing, he isempowered by the proxy to “appoint' one or more Attorneys-at-Law or counsel torepresent him in court. He cannot appoint another registered attorney. There canbe only one proxy on record at a time. Another registered attorney, however, maybe appointed in appeal.
Once Mr. Mathew the registered attorney had informed his clients thatcounsel had died, his duties were not at an end and it is not then for the clients toretain another counsel. The clients themselves may have chosen counsel. If hedisagrees with his client’s selection, the registered attorney must move to have hisproxy revoked. But the right of retaining counsel remains that of the registeredattorney.
It would be a violation of Rule 4 of the Supreme Court (Conduct of andEtiquette for Attorneys-at-Law) Rules 1988 (Gazette Extraordinary 537/7 of07.12.1988) for any attorney who was not instructed by the registered attorney toappear in court.
In terms of the Civil Procedure Code and the Rules of the Supreme Courtmade under the powers vested in the Supreme Court by Article 136(1) (g) of theConstitution, it is a registered attorney alone who can appear unless he hasinstructed counsel.
When a registered attorney whose proxy is on record is present in court,but has no instructions, he nevertheless appears and there is no default ofappearance. However there may be circumstances in which the presence of aregistered attorney may not be an appearance.
The only instance where a withdrawal by counsel is permissible, is wherecounsel has been retained only for the limited purpose of making an applicationfor a postponement and such application is refused by court. In such a ease if hepleads he has no instructions, except as a matter of courtesy there was no needto obtain permission of Court to withdraw. In this situation there is then a default inappearance, despite Counsel's physical presence. In order to appear counselmust be retained and instructed and not merely be physically present in court.
(|) By-Rule 8 of the Supreme Court (Senior Attorneys-at-Law Rules it is arequirement in Sri Lanka that a silk must be assisted by junior counsel but thejournal entries showed that Mr. Senanayake was not always so assisted. JuniorCounsel must be retained and instructed. Retained means engaging the servicesof an attorney to give his services to a client and usually involves payment of afee though there may be circumstances when no fee is required. There was
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nothing in the case before court to show that junior counsel had been retainedand instructed. Although juniors were present in court, there was nothing to showthat they had been retained and instructed. If they were not retained andinstructed, Samarasinghe, Guneratne and Dissanayake {whose names werenoted in the record on occasion as juniors) were not junior counsel in the case.They could not have 'appeared" and they were, therefore, under no obligation toexplain their absence in the reinstatement matter.
It was the duty, in terms of the proxy, and the right, in terms of the lawand usage, of the registered attorney to retain and instruct counsel since he wasnot going to exercise his right to personally appear. The registered attorney failedto do so. He has not explained why he did not appoint counsel.
if counsel retained and instructed by the registered attorney fails toappear on the appointed date, it is for counsel, and not the registered attorney toexplain his absence in seeking reinstatement. Once the registered attorney hasdone his duty of appointing counsel i.e. retaining and instructing him, counselassumes full control of the case, and becomes the “conductor and regulator* ofthe whole thing. If. as in the case before Court, the registered attorney had notretained and instructed another attorney as counsel, then it was the duty of theregistered attorney to keep a track of the dates fixed, for then it was he. and healone who was entitled in terms of the law, and obliged in terms of the proxy, toappear and conduct the case.
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Schrader v. Joseph (1912) 15NLR 111,113, 117.
K. Gianchand v. T. M. N. HyderAli and 3 Others (1971) 74 NLR 300,301.
P D. Shamdasani and Others v. Central Bank of India. AIR 1938 Bombay199. 202. 203, 204.
Biswanath Dey V. Kishori M. Pal AIR 1956 Calcutta p. 3, p. 4. para 14 p. 5para 15.
Abdul Aziz v. Punjab National Bank AIR 1929 Lahore 96, 99, 100.
Manila! Dhunji v. Gulam Husein Vazeer (1888) 13 Bombay 12.
Nanak Chand and Others v. Sajad Hussain and Others AIR 1924 Lahore189.
Majidunnessa Bibi v. Amnessa alias Aslahenessa Bibi AIR 1914 Calcutta763, 764.
Juggi Lai Kamla Pat v. Ram Janki Gupta and Another AIR 1962 Allahabad407,411.412.
Sail AM v. Chiragh Ali Sha and Others AIR 1923 Lahore 97.
Maung Po Kwe v. Maung Sein Nyun AIR 1927 Rangoon 258.
Khavaja KaramatAli v. HadwarPanade AIR 1924 Oudh 405,406.
Issarsing v. Udhavdas and Others AIR 1921 Sind 55. 57.
A Arunachala Iyer v. C. Subbramiah AIR 1923 Madras 63, 64.
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Rama Shankar v. Iqbal Hussain AIR 1932 Allahabad 450.
Irappa Aduriappa Kapparad v, Ningappa Rudrappa Kapparad and OthersAIR 1923 Bombay 480.
Thakur Anrudh Singh v. Rupa Kunvar and Others AIR 1925 Allahabad 601.
Gargialeta! v. Somasunderam Chatty{1905} 9 NLR 26,30.
Kanshi Ram and Another v. Diwan Chand and Another*AIR 1933 Lahore169.
Baijnath v. Iqtidar Fatima and Another AIR 1942 Qudh 75, 76.
Premshankar Dave v. Rampparlal s/o Chedilal and Others AIR 1944Nagpur 317.
Somayya v. Subama AIR 1903 Madras 599.
Lalta Prasad v. Ram Karam AIR 1912 Allahabad 426.
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Jane Nona v. Podisingho (1925) 5 Times 151.
Sarl8raz Khan v. Parbatia and Others AIR 1917 Allahabad 290.
Behan Lai v. MaqsoodAli AIR 1923 Allahabad 189.
Rai Sahab Krishna Dali v. Ram Ugrah Singh and Others AIR 1923Allahabad 549.
Lachman Das v. Ranji Das AIR 1926 Lahore 541.
Kirpi and Another v. Chum Lai AIR 1928 Lahore 454.
Man Singh and another v. Sanghi Dal Chand AIR 1934 Allahabad 163.
Bimbadhar Patra and Another v. Bhobani Behara AIR 1935 f’atrta 119.
Aktar Hossain and Other v. Husseni Begum and Others AIR 1933 Calcutta
73.
Gopala Row v. Maria Susaya Pillai AIR 1911 Madras 274.
Venkobar Royar and Another v. Khadriappa Gounder and Others AIR 1915Madras 16.
Mrigendra Nath Bir and Others v. Dibakar Bir and Others AIR 1926Calcutta. 1231.
Namperumal Naidu v. Atwar Naidu and Others AIR 1928 Madras 831.
Lachman v. Murarilal and Others AIR 1932 Lahore 65.
Morichand v. Ant Ram AIR 1952 Bhopal 33.
Jayasuriya v. Kotelawela et a/(1922) 23 NLR 511.
Daropadi v. Alma Ram and Others AIR 1933 Peshawar 59.
Kunashi Muhammad and Others v. Barkat B/b/ AIR 1927 Lahore 622.
Maung Than v. Zainat Bibi AIR 1926 Rangoon 50.
U Aung Gyi v. Government of Burma and Another AIR 1940 Rangoon 162,164,166.
Sohambal and Another v. Devchand AIR 1957 Rajasthan 11. p. 15 – para22-25, para 24.25.
Jarsman Das and Another v. Bishan Das AIR 1917 Lahore 399.
Mohomed Hussain and Another v. Mohomed Usman and Others AIR 1919Lahore 32.
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Maung Pway v. Saya Pe AIR 1927 Rangoon 46.
Wazir Chand v. Bharadwaza AIR 1924 Rangoon 271.
Muhammad Sharif and Another v. Din Muhammad Al R 1927 Lahore 365.
Ram Lai Gopi and Others v. Kali Prasad Sahu and Others AIR 1929 Patna609.
Gul Mohammed v. Mul Chand and Others AIR 1933 Lahore 797.
Kanhaiya Lai v. Gobind Prasad AIR 1933 Allahabad 276.
Amna v. Ratan Lai AIR 1935 Allahabad 660, 662.
Seshaingar Rajagopalan v. Unique Assurance Co. AIR 1940 Calcutta 373.
Scharenguivet v. Om(1926) 28 NLR 302.305.
Ram Sukul Pathak and Others v. Kesho Prasad Singh and Others AIR 1918Patna 341.
Isabli and Another v. Bhagaban Chandra Shaha AIR 1919 Calcutta 1058.
Radhey Shiam v. Bhattiya AIR 1945 Allahabad 53.
Premshanker Dave v. Rampparlal s/o Chedidal and Others AIR 31 Nagpur
317.
Maung Shwe Hla v. Soolay Naidu AIR 1924 Rangoon 336.
Dakshinamoorthy Pillai v. Municipal Council of Trichinapoly 1907 Indian HCReps Vol. Ill, 31 M 157.
Qadar Bakshi v. Hakam AIR 1933 Lahore 1043.
Gangabai v. Ghansarmba AIR 1921 Nagpur 3,5.
Pett v. Greyhound Racing Association Ltd. (No. 2) [1969] 2 All ER 221.
Ex Parte Evans (1846) 9 QB 279.
Rondel v. Worsley [1967] 3 All ER 993,1003,1617.
M. S. Mahomed v. Collector of Toungoo AIR 1927 Rangoon 150,153,154.
Krishnappa Chettiyar v. Jhanda and Another AIR 1929 Rangoon 224.
Hare Krishna Mahanti v. Bishnu Chand Mahanti 1908 Ind. LR Vol. XXXVp. 799.
Mohideen Alt v. Hassim(I960) 62 NLR 457, 459.
Kadirgamadas v. Suppiah (1953) 56 NLR 172.
Attorney-General v. M. W. Silva (1959) 61 NLR 500.
The Estate ofMalachais (1920) 21 NLR 332.
In re the Appeal ofJ.P.A. v. Proctor (1920) 1 C.L. Recorder 139.
Silva v. Soopetamby 1843 – 1845 Ramanathan 66.
Perera v. Perera 2 ACR 142.
Silva v. Andiris( 1916) 3 CWR 310.
Kandiah v. Vairamuttu 60 NLR 01.
Wijesinghe v. Council of Legal Education 65 NLR 364.
Perera v. Perera and Another [1981] 2 Sri LR 41.
Seelawathie and Another v. Jayasinghe [1985] 2 Sri LR 266.
Mohideen Ali v. Hassim (1960) 62 NLR 457,459, 460,461.
Kasinathan Chetty v. Salhasivam et a! 5 Times 82.
Kanagasabai v. Kirpamoorthy(1959) 62 NLR 54.
Rahiman Lewai v. Negamany(1916) 3 CWR 43.
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Porolis Silva v. Porolis Silva (1922) 1 Times 20.
Canon v. Telesinghe (1929) 30 NLR 372,
Andiappa Chettiyar v. Sanmugam 33 NLR 217.
Motha v. Fernando (1941) XX CLW 109.
Chelliah Pillai v. Mutuveiu (1941) XXI CLW 82.
Esmail Ebrahim v. Haji Jan Mohamed AIR 1908 (10) Bombay 904.
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Baji Lai and Others v. Nawal Singh AIR 1917 Allahabd 216.
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Hah Das Faquir v. Praduman Nath and Another MR 1925 Qudh 234.
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Mulligan v. M'Donagh QC (1860) 2 LT 136.
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Lachiram and Others v. Almi and Others AIR 1927 Sind 228.
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Sardar Begum v. Muhammad Said AIR 1930 Lahore 943.
Bhagwan Das and Another v. Darkhan and Another AIR 1932 Lahore 387.
Arjan Singh and Another v. Bachan Singh and Another AIR 1934 Lahore416.
Swannel v. Ellis (1823) 1 Bing 347.
Courtney v. Stock (1842) 2 Dr. & War. 251.
The Times of Ceylon v. Low (1913) 1 SCO 58.
Silva v. Cumaratunga (1938) 40 NLR 139.
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In re Hawkins, White v. Write [1916] 1 Ch. 570, 579, 580
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Doed'Bennettv. Hale(t850) 15QB 171, 186.
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Syadu Varusai v. Weerasekera (1956) 58 NLR 89, 91, 92.
Satish Chandra Mukherjee v. Apara Prasad Mukherjee AIR 1907 (34)Calcutta 403.
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Rambhanjan Singh v. Pashupat Rai AIR 1924 Patna 271.
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APPEAL from order of the Court of Appeal directing re-listing of appeal.
H. Withanachchi for appellant.
L.V.P. Wettasinghe for respondents.
Cur adv vult.
March 27th, 1992.
AMERASINGHE, J.
This is an appeal from an order of the Court of Appeal re-listing apetition it had dismissed when the petition was not supported on thedate appointed for hearing. The appellant complains that the Court ofAppeal erred in making its order of reinstatement.
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A writ of certiorari to quash certain orders made on 4th May, 1982by the Assistant Commissioner of Agrarian Services and theAssistant Commissioner of Agrarian Services (Inquiries) had beensought by way of a petition filed on 16th September, 1982, by thepetitioners' duly appointed registered Attorney-at-Law, Mr. SaliyaMathew. The application for the issue of notice was supported in theCourt of Appeal by Mr, Nimal Senanayake, Senior Attorney-at-Law, on22nd September, 1982, and Mr. Senanayake continued to be counselfor the petitioners until he died on 14th May, 1988.
When the matter came up for hearing on 3rd May, 1989, there wasno appearance for the petitioner. The court noted that the ‘late Mr.Nimal Senanayake had appeared for the petitioner” and ordered thatthe matter be listed "in due course”. The matter came up on 16thMay, 1989. The petitioners, however, were again absent andunrepresented. The court (Viknarajah and A. de 2. Gunawardana,JJ.) made order dismissing the application. On 19th September,
the petitioners, by their registered Attorney-at-Law, Mr. SaliyaMatthew, tendered a petition, supported by an affidavit of the secondpetitioner, and moved that the matter be re-listed. After hearingcounsel for the parties, A. de Z. Gunawardana, J., on 28thSeptember, 1990, set aside the order of the Court of Appeal dated16th May, 1989 dismissing the application for an order of certiorari,and directed that the matter be re-listed on a date convenient tocounsel. The Supreme Court on 18th June, 1991, granted theappellant special leave to appeal against the order of reinstatementmade by the Court of Appeal on 28th September, 1990.
The Court of Appeal, in making its order dated 20th September,
stated as follows:
Counsel for the petitioner in this re-listing application urgedthat Mr. Nimal Senanayake died on 14th May 1988. Thepetitioners reside in a remote village in Southern Sri Lanka.There were disturbances in that area. In that district, there wereno proper communication channels and the petitioners have notreceived any notice from this court about the listing of thisapplication. This matter had been listed on 3.5.89 two yearsafter the last date it had come up, viz. 25.5.87. He also
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submitted that once a counsel is retained, it is the duty of thecounsel to keep a track of the listing of the appeal or applicationand that the instructing attorney is not responsible in thatregard.
"Counsel for the respondents submitted that it is the duty ofthe instructing attorney to keep a track of the listing of anyapplication or appeal in which he has retained counsel. Hesubmitted that the fact that a counsel is retained would notabsolve the instructing attorney from that responsibility. He alsosubmitted that when the counsel died, the instructing attorneyshould have informed the client and got the client to retaincounsel. He pointed out that the petitioner does not state as towhen the petitioners had come to know that Mr. NimalSenanayake had died. Learned counsel for the respondent alsopointed out that several junior counsel have appeared alongwith Mr. Nimal Senanayake when this application had come upon different occasions. On the last occasion when it came upbefore Mr. Nimal Senanayake died, one Mrs. Dissanayake hadappeared. On the other hand, Mr. Wettasinghe for thepetitioners pointed out that the fact that several junior counselhave appeared in this case shows that no particular juniorseems to have been retained in this case.
There is no evidence to show that a particular junior hadbeen retained in this case.
Having taken the above submissions into consideration, thisCourt is of the view that the Order made on 16.5.89 should beset aside, and the application of re-listing is allowed.”
The appellant in paragraph 12 (a) of his application to this Courtfor special leave to appeal alleged that this order of the Court ofAppeal was defective, in that it failed to give reasons. Appellant'scounsel, both in his written and oral submissions, reiterated and gaverenewed expression to the complaint that the Court of Appeal hadfailed to give reasons for the order of reinstatement it had made.
Section 774 (2) of the Civil Procedure Code requires that, inpronouncing its judgment on the termination of the hearing of an
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appeal, the court should, inter alia, state the decision of the judgesand the reasons which have led to the decision. An application for awrit of certiorari, being an entreaty to a higher authority for a decisionin one’s favour, therefore, does, partake, in certain, limited ways, ofthe nature of an appeal. Yet, it seems to me, that there are historical,conceptual, constitutional, legislative and procedural impediments inthe way of accepting a suggestion that an application to grant reliefor redress by way of a prerogative order, is an appeal within themeaning of Part VIII of the Civil Procedure Code. In any event, theorder of the Court of Appeal was not a judgment pronounced at thetermination of the hearing of an appeal, but rather an order on anincidental question, viz., an application for re-listing. There was,therefore, no duty, in terms of section 774 of the Civil Procedure,which obliged the Court of Appeal to give reasons for its decision inthis case. It may have been an expectation. It was, perhaps, even adesirable expectation. But that is another matter. Although it is farfrom clear that it was in fact the case, I am prepared to accept Mr.Wettasinghe's suggestion, at page 3 of his additional writtensubmissions dated 11th December, 1991, that all of the groundsurged by the applicant for reinstatement and set out in the judgmentof the Court of Appeal had been accepted by the Court of Appealand constituted the reasons for its decision.
The main ground of appeal related to another matter, viz., thequestion of default in appearance on the date appointed for thehearing of the petition for a prerogative order. Although, in Schraderv. Joseph t'1 Wood Renton, J. observed that it was "one of thenumerous cases that come up in appeal owing to the default ofparties or their legal advisers to appear on' the day and at the timefixed for the hearing of actions in which they are concerned’’, andalthough prerogative writs have been available in this country fromthe time of the Charter of Justice of 1801, there are, it seems noreported decisions on the question of default in appearance inapplications for writs. Both Mr. Witanachchi and Mr. Wettasinghestated that there are no express statutory provisions or rulesprescribing the course to be followed by a court where an applicantfor a prerogative writ is absent on the day fixed for the hearing of hisapplication. In the circumstances, they proposed somewhat differentapproaches to the resolution of the matter before us. Many involved
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submissions were made by learned counsel, rendering them intricateand difficult. It was not an easy matter to unravel them. Havingdisentangled them, it was necessary to consider the criteria fordeciding the correctness of the submissions made. For this, therewas very little assistance: the only decided case both learnedcounsel cited to us was K. Gianchand v. T. M. N. Hyder Ali and 3Others (!) . I am conscious of the fact that Blackwell, J., in P. D.Shamdasani and Others v. Central Bank of India, (3), said thatprecedents were not of "much use in cases of this character". Andthat Mitter, J., in Biswanath Dey v. Kishori M. Pal, (4,said that “On thispoint reported decisions are not of much help and each case has tobe decided on its own facts." Similar observations were made by JaiLai, J. in Abdul Aziz v. National Bank <51. No doubt each case has tobe decided on its own facts. Yet, it would have been of assistance tous if decisions had been cited which would have indicated whatviews had been held by judges on similar facts, in comparable,analagous, cases. Indeed Blackwell, J. in Shamdasani's case ((ibid.)placed great reliance on what the judges had done in Manilal Dhunjiv. Gulam Husein Vazeer™).
Mr. Wettasinghe, learned counsel for the respondents, submittedthat an application for a writ of certiorari, should be treated asappellate in nature, the principles that should guide the court beingthose laid down in section 769 of the Civil Procedure Code. MrWettasinghe argued that, in terms of section 769 (2) of the CivilProcedure Code, the Court of Appeal was justified in dismissing-fheapplication only after it had considered the application. Dismissal,therefore, should have been on the merits. Since the court haddismissed the application without consideration, it had acted onwrong principles, and, therefore, the Court of Appeal was right inreviewing its earlier order and directing reinstatement.
The action of the petitioners in this case was one of requesting theCourt of Appeal, by way of a writ of certiorari, in the exercise of itsdiscretionary power and authority conferred by Article 140 of theConstitution, to quash the orders of the Assistant Commissioners ofAgrarian services. It was not a supplication for relief or redress whichthe petitioners were making, as a matter of right, in terms of section754 of the Civil Procedure Code, read with Article 138 of the
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Constitution, to correct errors in fact or law committed by a civil courtof first instance. Had it been such an entreaty, the court would havebeen obliged, in terms of section 769(2) of the Civil Procedure Code,to consider the matter before dismissing it. Dealing instead, in thematter before it, with a mere invocation for the assistance of the Courtof Appeal in the exercise of its discretion, the court had anuncontrolled power of disposal, so long as that power was notexercised in transgression of the law and legal principles, and solong as it was not actuated by whim or caprice, and exercised ingood faith. Indeed, this was the position even with regard to civilappeals, made as of right, prior to the enactment of section 339(3) ofthe Administration of Justice Law No. 44 of 1973, which, for the firsttime introduced the requirement of “consideration”. That requirementwas retained by subsequent legislation with regard to civil appealsfrom the judgments of courts. (See section 17 of Act No. 20 of 1977and section 769(2) of the current Civil Procedure Code). However, itwas not made applicable to other matters.
I am not inclined to accept Mr. Witanachchi's submission that theCourt of Appeal, guided by section 87 of the Civil Procedure Code, asamended by Law 20 of 1977, should have dismissed the applicationas an obligatory penalty for default. I think the court had a discretionin the exercise of which it may have dismissed the application, or, as ithad done on the earlier occasion when the matter came on forhearing on 16th May, 1989, adopted another course which in itsopinion, was more likely to ensure substantial justice.
In the exercise of its discretion, as Chief Justice Beaumont said inShamdasani and Others v. Central Bank of India'3', the court ought tohave considered that, "it is, after all, a very serious matter to dismissa man’s suit or summons, or whatever it may be, without hearing it,and that course ought not to be adopted unless the court is reallysatisfied that justice so requires."
The petitioners suggested that the court was unreasonable indismissing their application on the second occasion on which thematter was listed for hearing after their counsel’s death, because itwas listed "only thirteen days” after the first date when it had comeon. Were the petitioners under the impression that the court should
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have adjusted its programme of work to suit them because they hada right to be heard? If so, they were mistaken.
Although a party has a right to be heard, that is not an absoluteright. In the circumstances of a case, justice may require that thematter be disposed of without hearing the absent party. Theimplications of its decision for the due administration of justice wasan important consideration which, however, the Court of Appealfailed to take account of in reversing its earlier decision and orderingreinstatement.
One never ceases to hear of the laws delays, and it has been said,over and over again, perhaps ad nauseam, that justice delayed isjustice denied. There are several sides in a contentious matter, and, itmay well be the case, that someone may not be interested in thequick dispatch of the matter. It is a false assumption, albeit a popularone, that all litigants are disappointed with the slow progress of thework in the courts. The laws delays is not a general complaint of thelitigating public. The litigants on the wrong side of the law – thosewho do not want justice to be done – are anxious that the resolutionof their disputes may never take place. The abuse of their powers toobtain Stay Orders, combined with the problem of the laws delays,serve their contemptible ends. In this case, the appellant complainedof the delay in the resolution of the dispute. He felt aggrieved by thefact that the petitioners had, on the strength of a Stay Order they hadobtained from the Court of Appeal on 22nd September, 1982, inproceedings incidental to their application for the writ of certiorari,continued to remain for a long time in possession of the paddy landscalled Wakkala Kumbura and Kudahella Bediwela and KongahaBediwela, although an order of eviction had been made againstthem by the Assistant Commissioner of Agrarian Services, if theprescribed rent had not been paid. The petitioners may havebenefitted by the delay in the disposal of this matter. Yet, as I havepointed out elsewhere, the petitioners were not responsible for thedelay. However, there is no doubt in my mind that, as a matter offairness to the appellant, the matter should have been, as indeed itwas on 16th May, 1989, disposed of without further delay. The otherparties, had a legitimate expectation that the matter should beexpeditiously determined. The Court of Appeal erred in failing toconsider the rights of the other parties in ordering reinstatement.
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Moreover, “the ends of justice," which Mr. Wettasinghe said mustbe served, in my view, go beyond the narrow interests of one or all ofthe litigants in a matter. The needs and expectations of thecommunity as a whole in the due administration of justice must beconsidered. Interest rei publicae ut sit finis litum. A court is under aduty to see that its business is disposed of in an orderly, prompt andeffective manner. Unnecessary postponements are wasteful, non-productive, time-consuming and result in the confusion andcongestion of its programme of work. They provide fertile ground forpublic criticism of the whole system. Therefore, when a matter islisted for hearing, or for that matter, any other purpose determined bycourt, generally, it must be taken up and dealt with on the dayappointed by the court. It is the duty of a judge, in the interests of theadministration of justice, to ensure that the work of the court goes onwithout delay and, therefore, according to its programme. (See theobservations of Abdul Raoof, J. in Nanak Chand and Others v. SajadHussain and Others m. A judge must ensure a prompt disposition ofcases, emphasising that dates given by the court, including dates setout in “lists” published by a court’s registry, for hearing or otherpurposes, must be regarded by the parties and their counsel asdefinite court appointments. No postponements must be granted, orabsence excused, except upon emergencies occurring after thefixing of the date, which could not have been anticipated or avoidedwith reasonable diligence, and which cannot be otherwise providedfor. In this connection, it has been observed that, although “the usualgood feeling prevailing between the Bench and the Bar leads theBench, whenever possible, to make such concessions as topostponing the hearing of a case in order to enable the pleader tocome and argue it”, there is no 'absolute right in that regard. (Seeper Fletcher. J. in Majidunnessa Bibi v. Amnessa alias AslahenessaBibi ™. Counsel's convenience should not be assumed to be acompelling reason for postponing a matter. (See Juggi Lai Kamla Patv. Ram Janki Gupta and Anothertw, Saif Ali v. Chiragh Ali Sha andOthers™. See also Maung Po Kwe v. Maung Sein Nyun nnAdmittedly, as Wazir Hasan, ACJ observed in Khavaja Karamat Ali v.Hadwar Pande,,ZI, "a little spirit of compromise will go a long waytowards doing justice and also towards the expedition of work", andalthough it is reasonable to consider counsel's exigencies of dutiesowed to other courts and clients, (see Abdul Aziz v. Punjab National
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Bank Ltd™, any latitude shown to the parties and their lawyers must,as the court observed in Issarsing v. Udhavdas and Others'3' be“consistent with the proper disposal of work." See also Schrader v.Joseph (supra) at 113 and 117. Essentially, it is a question ofbalance. In Abdul Aziz v. Punjab National Bank Ltd.™ Jai Lai, J.examined several decisions and said:
“In this connexion due regard must be had to the nature ofduties of counsel towards his other clients and the other courts.At the same time the court cannot be expected to give unlimitedor unreasonable latitude to counsel in this respect. Counsel isordinarily expected to be ready in court when the case is calledand it is no good excuse to say he was busy elsewhere. Thematter, therefore, is one of the exercises of judicious discretionin each case. Too rigid an adherence to either view is likely tolead to inconvenience and injustice, on the one hand, anddislocation of court’s work, on the other."
In the case before me, the matter was listed almost a year after thedeath of counsel, because the President of the Court of Appeal hadordered that the case of the late Mr. Senanayake's should not belisted "for a long period." When it came on for hearing, the court,finding that the petitioners were absent and unrepresented, suomotu, noting the fact that the late Mr. Senanayake had been thecounsel in the case, ordered that the matter be listed "in due course."The fact that it was listed again for hearing “only thirteen days" afterthat, is not a legitimate cause for complaint. The court had beenindulgent. Had it gone beyond that point, it might, I think, have beenguilty of laxity and unreasonableness. The interests of justice, I think,required that the matter be disposed of, without further delay. TheCourt of Appeal, taking the requirements of the due. administration ofjustice into account, was justified in ordering the dismissal of theapplication on 16th May, 1989. However, in making its order ofreinstatement on 28th September, 1990, it seems to have overlookedthis matter. Indeed, it seemed to have come round to the position ofregarding the long delay in listing, not as a factor operating againstreinstatement, but rather as a matter in favour of it. The delay, itseems to have been supposed, had made it difficult for the
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petitioners to keep track of the date of hearing. The court overlookedthe fact that the delay was meant to assist the petitioners. In my view,the application, having due regard for considerations relating to thedue administration of justice, was properly dismissed, and thereinstatement was not warranted.
The next question is this: Since there is no legislation governingthe matter, under what authority could the court have ordered the re-listing of the application? I think the court had the power to restorethe application to the list in the exercise of its inherent jurisdiction.{Cf. Issarsing v. Udhavdas and Others |13)).
If it had the power to order re-listing, under what circumstancesshould the matter have been reinstated?
Some decisions seem to suggest that it is essentially a matterconcerning the parties, and, therefore, an award of costs shouldconclude the matter. With great respect, I am unable to accept theview that has been expressed in some cases that the award of costsis, what Schwabe, CJ. in A Arunachata Iyer v. C. Subbramiah (l4’described as an “universal panacea for healing all wounds“: theparty in default compensating the other for his absence, while payinga sufficiently deterrent penalty for his absence. (E.g. see thecomments of Niamatullah, J. in Rama Shankar v. Iqbal Husain(,SI Seealso Irappa Aduriappa Kapparad v. Ningappa Rudrappa Kapparadand Others (,* Thakur Anrudh Singh v. Rupa Kunwar and Others ,w>.See also Gargial et al v. Somasunderam Chetty1181 where the courttook an “indulgent" view). The court may have reinstated the matterupon such terms as to costs or otherwise as it thought fit, yet it couldonly do so if sufficient cause for reinstatement had been established.(Cf. the proviso to section 769(2) and section 87(3) of the CivilProcedure Code). The fact that the court was acting in the exerciseof its inherent powers, rather than in the exercise of a powerexpressly conferred by the legislature, makes no difference. (SeeKanshi Ram and Another v. Diwan Chand and Another <19 In thematter before us, there was no attempt by the Court of Appeal toappease the other party by an award of costs. In any event, even ifthe other party agreed to reinstatement, the court should have beenconstrained to refuse it if sufficient cause for absence had not beenshown. This was the position in Gianchand (supra).
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Mr. Wettasinghe then advanced a somewhat strange propositionwith regard to the way reinstatement should be considered: Heargued that, in the case of civil appeals, a matter should bedismissed only after "consideration." This, he said, “would ensurethat the ends of justice are met, particularly when the non-appearance is involuntary, and is a tacit recognition that a party,having gone through the procedures of filing an appeal, will not, inthe generality of cases, wantonly and deliberately stay away from thehearing. Although the requirement of “consideration" “shouldnormally serve the ends of justice", yet, he argued, “if parties persistin seeking reinstatement, then a high standard, namely that ofsufficient cause, is imposed. In other words, the requirement ofsufficient cause goes hand in hand with consideration.” if there isno ‘consideration’, then, ‘sufficient cause cannot be insisted upon,and a standard less than 'sufficient cause', such as 'reasonablegrounds' as laid down in section 87 of the Civil Procedure Code,should conclude the matter."
Mr. Wettasinghe’s argument partly rested on his averment that itought to be assumed that an applicant or appellant would not beabsent without sufficient cause. The law makes no ‘tacit recognition"of any assumption that an appellant or petitioner would not be absentwithout good cause. The Court (Bennett and Agarwal, JJ.) observedin Baijnath v. Iqtidar Fatima and Another™ as follows:
‘Learned counsel has argued that the appellant had noreason to absent himself, but we cannot infer from this that therewas sufficient cause for his absence.”
Whether there is sufficient cause, is an open question. A court hasno preference for believing that a party's absence was eitherunpardonable or excusable. It has no predisposition or bias in favourof or against an absent party. And so, a court will neither proceed onthe hypothesis that a person's absence was excusable, nor act onthe assumption that a person’s absence was unpardonable. AsBobde, J. observed in Premshankar Dave v. Ramppartal s/o Cheditaland Others B", it may be so found ultimately or it may not be, but indeciding whether there was good cause for default in appearance …the lower Court had to judicially consider that question alone, puttingaside all predilections."
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I have pointed out later on in my judgment that a court ought not tobe too severe and rigorous in exercising its powers relating toreinstatement, but rather, that it should be generous. Yet. it is anentirely different matter to hold that a court must be prepossessedwith a favourable opinion with regard to an absent party. The burdenof alleging and proving the existence of facts, on the basis of which acourt may decide that there is good cause for absence, rests on theabsent party who seeks reinstatement. The burden of adducingevidence of sufficient cause is not displaced by any presumption inhis favour. I have no hesitation in rejecting Mr. Wettasinghe’ssubmission that sufficient cause should be inferred in favour of anabsent party.
Mr. Wettasinghe submitted that, where a court is legally obliged to,but fails to consider the matter before dismissal, then restorationshould be granted as if the matter had been dismissed for defaultunder section 87 of the Civil Procedure Code. Section 87{3) of theCivil Procedure Code enables a court to set aside its order ofdismissal for want of appearance of a plaintiff where it is 'satisfiedthat there were reasonable grounds for the non-appearance of theplaintiff." According to Mr. Wettasinghe, the phrase “reasonablegrounds”, in section 87 of the Civil Procedure Code, imposes lessexacting standards than “sufficient cause" required by the proviso tosection 769(2) of the Civil Procedure Code. A court will hold thatthere was sufficient cause if the facts and circumstances establishedas forming the grounds for absence are not absurd, ridiculous, triflingor irrational, but sensible, sane, and, without expecting too much,agreeable to reason. It cannot hold that, in its judgment, there issufficient cause to reinstate the matter unless the grounds for comingto that conclusion were reasonable. In that connection it might bepointed out that, although in Somayya v. Subama (J9’and in LaltaPrasad v. Ram Karam'2*1 an attempt had been made to distinguishbetween “sufficient cause" and “valid reason", in Chary ChandraGhose v. Chandi Charan Roy Chowhury<2i) the court held that it wasnot “impressed" by the attempt. Nor am I impressed by Mr.Wettasinghe’s submission.
Learned counsel for the appellant. Mr. Witanachchi, advancedsomewhat different views on the question of what the absent party
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had to establish and the way in which the burden of proof shouldhave been discharged. He submitted that section 18 of the AgrarianServices Act No. 58 of 1979 permitted no “appeals". Although thecorrectness of a decision under the Agrarian Services Act might becalled in question by way of a writ application, such a challenge, hesaid, was not an “appear and, therefore, the provisions of section769 of the Civil Procedure Code, which relate to default inappearance on a date appointed for the hearing of an appeal, wereinapplicable to this case. The reinstatement of a writ applicationdismissed for want of appearance, he submitted, could only be madeby the court in the exercise of its inherent powers, which a courtwould exercise only if the defaulting party furnished the court with “acomprehensive and satisfactory disclosure of all the attendantcircumstances." Since the power to reinstate was “discretionary”, theapplicant for relief, Mr. Witanachchi submitted, had to “come out witha full explanation so as to establish maximum good faith.” Whileconceding that, whether in the exercise of its inherent powers or itspowers under section 769 of the Civil Procedure Code, reinstatementcould be considered only if the defaulting party showed “sufficientcause” for his absence, Mr. Witanachchi submitted that a “morestringent” standard should be applied to a defaulting party applyingfor a discretionary, prerogative order than to a defaulting appellantwho had come to court in the exercise of a right of appeal undersection 754 of the Civil Procedure Code. An applicant for a remedyby way of a writ, learned counsel said, was ‘under a heavy obligationto prosecute his application with due diligence." Learned counsel forthe appellant referred us to rule 57 of the Rules of the Supreme Courtof 1978 in support of this view.
Rule 57 of the Supreme Court Rules, 1978 (Gazette ExtraordinaryNo. 9/10 of 8th November, 1978) states that “It shall be the duty of thepetitioner, to take such steps as may be necessary to ensure theprompt service of notice, and to prosecute his application with duediligence.” However, I can find nothing in that rule indicating that,when a party seeking relief, calls upon the Court of Appeal toexercise its writ jurisdiction under Article 140 of the Constitution, amore onerous duty is cast on him than when that court, in theexercise of its appellate jurisdiction under Article 138 of theConstitution, is asked to correct errors alleged to have been
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committed by a court, tribunal or institution. It seems to me that inboth instances, a party seeking relief must prosecute his applicationwith due diligence. And in attempting to show sufficient cause forabsence, I do not think that a defaulting appellant is under any lighterduty in providing the court with information relating to his absencethan a defaulting applicant for a writ. They must, I think, both make,what Mr. Withanachchi called, "comprehensive and satisfactory"‘disclosures of all the attendant circumstances"; they must bothmake ‘full explanations” to enable the court to decide whether therewas sufficient cause for the absence.
Where a party has established that he had acted bona fide anddone his best, but was prevented by some emergency, which couldnot have been anticipated or avoided with reasonable diligence, frombeing present at the hearing, his absence may be excused and thematter restored. (Cf. Jane Nona v. Podisingho,2S’)- For instance, seeSarfaraz Khan v. Parbatia and Others m (where the journey to courttook longer than expected); Behari Lai v. Maqsood Alim (where theparty, being too timid or too foolish, did not enter the court when thecase was called, but instead, went off to fetch his lawyer); Rai SahabKrishna Dali v. Ram Ugrah Singh and Others (a> (where the partymistakenly believed the day was a Muhammadan holiday because ofthe different visibility of the moon in various districts); Lachman Das v.Ranji Das (illness); Kirpi and Another v. Chuni Lai,3W (where one ofthe two parties who was blind did not go into court but remainedoutside while the other went to fetch the lawyer when the case wascalled); Man Singh and Another v. Sanghi Dal Chand (illness -medical certificate unreasonably rejected); Bimbadhar Patra andAnother v. Bhobani Behara <”* (operation); cf. Aktar Hussain andOthers v. Hosseni Begum and Others (33> the case of a “wrongheaded, muddle headed” but bona fide party endeavoring to bringhis witnesses).
The petitioners, in paragraph 11 of their petition to the Court ofAppeal dated 19th September, 1989, state that they are "poor paddycultivators and irreparable loss will be caused to” them if theirapplication were to be dismissed without hearing their counsel.
Inasmuch as it is a serious thing to deny a party his right ofhearing, a court may, in evaluating the established facts, be more
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inclined to generosity rather than being severe, rigorous andunsparing. Indeed, some decisions go so far as to suggest that onlygross misconduct, or wilful default, and not mere negligence orcarelessness, should prevent reinstatement, (E.g. see Gopala Row v.Maria Susaya PillaiVenkobar Royar and Another v. KhadriappaGounder and Others™, Sarfaraz Khan v. Parbatia and Others <Ml,Arunachala Iyer v. Subbaramiah <14>, Thakur Anurudh Singh v. RupaKunwar and Others ,,7 Mrigendra Nath Bir and Others v. DibakarBir and Others m, Namperumal Naidu v. Alwar Naidu and Othersm,Ram Shankar v. Iqbal Hussain|1S>, Lachman v, Murarilal and Others|M>,Shamdasani and Others v. Central Bank of lndia(1 Motichana v. AntRam m, Juggi Lai Pat v. Ram Janki Gupta and Another®,
Although a court should be generous in matters of this kind, itshould not "in mercy" adopt a course which the law does notcountenance”. (See the observations of Mitter, J. in Biswanath Dey v.Kisohori M. Pal®, on the decision of Chief Justice Rankin in AktarHossain v. Husseni Begam™, but see Gargial et al v. SomasunderamChetty (supra). The court cannot prevent miscarriages of justiceexcept within the framework of the law: it cannot order thereinstatement of an application it had dismissed, unless sufficientcause for absence is alleged and established. (E.g., see Jayasuriyav. Kotelawela et allt0) (where the absent party was deceived andtherefore did not appear, the court held that there was insufficientcause for reinstatement): Daropadi v. Atma Ram and Others™ wherereinstatement was refused although the party was an old woman whowas compelled to act through others and although a large amountwas at stake. See also Kunashi Muhammad and Others v. BarkatBibi“ai, Maung Than v. Zainat Bibi<43), Kanshi Ram and Another v.Diwan Chand and Another t,9), U Aung Gyl v. Government of Burmaand Another™, Sohambal and Another v. Devchand™. I cannotorder the reinstatement of the matter on compassionate grounds. Thelaw does not permit it. Indeed, if in fact what was at stake was soimportant to them because they were poor, the petitioners ought tohave been more diligent than if they had been affluent persons towhom the loss might have been less significant.
The right to be heard has little or no value unless the party hasbeen given a reasonable opportunity of being heard. He must have
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due notice. In paragraph 9 of the petition to the Court of Appealrequesting a reinstatement of the matter, the petitioners stated thatthey had 'no notice". In paragraph 7 of his affidavit of 19thSeptember, 1989, the second petitioner states that “no notice or anyinformation was received by us regarding the said application".Obviously, where the party has no due notice from the court of whenthe matter was to be heard, the matter ought to be reinstated. (E.g.see Jarsman Das and Another v. Bishan Das |4* Mohomed Hussainand Another v. Mohomed Usman and Others (47>, Maung Pway v.Saya Pe <48 Wazir Chand v. Bharadwaza (<9 Muhammad Sharif andAnother v. Din Muhammad <s0 Ram Lai Gopi and Others v. KaliPrasad Sahu and Others (5' Gul Mohammed v. Mul Chand andOthers |M1, Kanhaiya Lai v. Gobind Prasad {S3), Gul Mohammed v. MulChand and OthersAmna v. Ratan Lai <M Seshaingar Rajagopalanv. Unique Assurance Co. Ltd.,m. The mere fact that the registeredattorney had failed to give the party information of the date is noexcuse: Scharenguivel v. Orr (S*>. Similarly, when the party hadinsufficient information as to where, in the sense of in which courtand/or in which town it was to be heard, then his absence at thehearing must be excused, and the matter should be reinstated, so asto give him an opportunity of being heard. (E.g. see Ram SukutPathak and Others v. Kesho Prasad Singh and Others Isabli andAnother v. Bhagaban Chandra Shaham, Amna v. RatanRadhey Shiam v. Bhattiya(See also Premshanker Dave v.Rampparelal s/o Chedilal and Others W) where the case wasunexpectedly taken up in chambers, rather than in the courtroomand, therefore, the party was absent, the case was restored to the list).
In the case before us, although there is no clear statement withregard to why it was alleged that there was "no notice", there seemsto have been no uncertainty with regard to where the matter was tobe heard. The complaint was that there was no information withregard to when the matter was due to be heard. The learned judge ofthe Court of Appeal in his order of 28th September, 1990 referred toabsence of notice to the parties in this way:
‘The petitioners reside in a remote village in Southern SriLanka. There were disturbances in that area. In that districtthere were no proper communication channels and the
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petitioners have not received any notice from this Court aboutthe listing of this application…"
If, upon the unrebutted oath of the absent party, the lack of duenotice of time or place, had been alleged, I might have been inclinedto agree that the decision of the Court of Appeal ordering areinstatement of the hearing was justified. (Cf. Maung Shwe Hla v.Soolay Naidu),6U. The appellant in the case before us, however,insists that the petitioners did have due notice. What is "due notice"?“Due notice”, for the purpose of the sort of matter underconsideration, is making information available in the usual way, that isto say, in accordance with the prevailing law, rules, practices andusages of the court. Where information of the appointed date forhearing is usually set out in a list prepared and published by thecourt's registry, and information of the hearing has been given in thatway, that is due notice to the parties and their counsel.
In Dakshinamoorthy Pillai v. Municipal Council of Trichinapoly m,the appeal list was posted on a notice board. When the matter wasadjourned, the party's legal agent advised him that it was not likely tocome up again for quite some time. However, it came on earlier thanexpected, and the party did not see the new date on a subsequentlyposted list. The matter was taken up and dismissed in the absence ofthe party. The absent party’s application for reinstatement wasrefused, his ignorance of the date of hearing, in those circumstances,not being regarded as a sufficient excuse for his absence.
In Qadar Baksh v. Hakam<M) a case had been set down in thecourt's weekly cause list as coming up before the second Bench.Due to the indisposition of a judge on that Bench, the matter waslisted before the first Bench in the daily list which was published onthe day before the hearing. Counsel's clerk failed to check the dailylist, and so he failed to inform counsel of the change. Counsel was,therefore, absent. The case was dismissed and reinstatement wasrefused on the ground that counsel should have ascertained whatcase he had in court that day and that his negligence wasinexcusable.
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The case before me had been listed in the usual way, and therewas, in the circumstances, due notice, although the parties may ormay not have been actually aware of the date of hearing. Mr.Wettasinghe, quite properly, did not press this matter. I do not thinkthe absent parties were in law entitled to complain about the lack ofdue notice; and if, as Mr. Wettasinghe stated at page 3 of his writtensubmissions dated 11th December, 1991, lack of notice was one ofthe matters that “entered into the mind of the learned Judge” inordering the re-listing of the application, then, with great respect, thelearned Judge was in error in failing to distinguish between “notice”,in the sense of actual knowledge, and imputed knowledge of thedate of the hearing which “due notice",' in the relevant sense, implies.The remoteness of the village in which the parties resided, the“disturbances in that area", the lack of “proper communicationchannels", due either to the remoteness of where the parties lived orthe “disturbances", therefore, have no relevance to the question of“due notice". Even if the court was inclined to be somewhat indulgenttowards the petitioners in this matter, on the basis that they wereunfamiliar with the procedures of the court, there was no justificationin this case for doing so, because they had a duly appointedregistered attorney-at-law, Mr. Saliya Matthew, who should have beenaware of these things. As Drake-Brockman, J.C., observed inGangabai v. GhansarmbaIM). “…it is of course only reasonable thatless leniency should be shown to pleaders than to parties, seeingthat it is a pleader’s business to attend the courts regularly and toprovide suitably for meeting his daily engagements.” Mr. Wettasinghepointed out that Mr. Matthew was only an instructing attorney and,therefore, he was under no obligation to inform himself of the dates. Ishall deal with that question later. For the present, on the question ofless leniency to those who are expected to know the court'sprocedures, let me say this: Mr. Matthew was empowered by theproxy he had been given by the petitioners to do all that wasnecessary for them in the Court of Appeal, Presumably, havingundertaken such an assignment, he ought at least to have beenaware of the way in which cases were fixed for hearing in that court.Had it been required that notice should have been personallyserved on the parties, it would have been necessary to go into thequestion of disturbances and so on. In any event, the lack ofcommunications, either, or both, on account of (a) the remoteness of
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the area in which the absent parties resided and (b) the interruptionof communications due to “disturbances in that area”, as we shall seelater on, has not been established.
I have accepted Mr. Wettasinghe's proposition that it is, bothdesirable and necessary, that a litigant be heard. I have accepted thefact that the right to be heard has little meaning, unless the party whohad that right had due notice of where and when he will be heard. Ihave decided that there was, in this case, due notice of where andwhen the matter was to be heard and that the Court of Appeal erredwith regard to that question. I must now consider the questionwhether the right to be heard was so impeded by othercircumstances that the Court of Appeal was right in ordering that thematter should be reinstated.
While it has been suggested that legal representation is notessential to a fair disposition of justice (see Pett v. Greyhound RacingAssociation Ltd. (No. per Lyall, J.), yet, if there is an oral hearingin a court, then a party is entitled to be legally represented [Ex parteEvans)m, unless the legislature expressly provides otherwise. Andso, unless the legislature provides otherwise, a party can, decidewhether he will himself go into court or be legally represented in theexercise of his right to be heard. (See section 24 of the CivilProcedure Code).
In this case, the parties on both sides had elected to be legallyrepresented. In paragraph 3 of his affidavit dated 19th September,1989, the second petitioner stated that he and the first petitioner"retained the late Mr. Nimal Senanayake and paid his fees in full".However, the petitioners were unable to effectively exercise their rightto be heard through the counsel of their choice. The secondpetitioner, in paragraph 5 of his affidavit of 19th September, 1989,explained that their "counsel", Mr. Senanayake, died on 14th May,1988. Mr. Wettasinghe submitted that the petitioners were not awareof the death of Mr. Senanayake and were, therefore, left in the lurch,without their expected legal representation when the matter came upfor hearing, because, he said, there was a lack of “communicationchannels, since newspapers carrying English obituary notices werebanned by insurgents and in any event the client is a Sinhala-
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speaking villager.” The petitioners, in their application for re-listing,did not complain that they were unaware of the death of theircounsel, and therefore, could not have known that they would beunrepresented when the matter came on for hearing. And so, it wasnot a matter considered by the Court of Appeal. It is, therefore, not amatter I should consider. In any event, at page 4 of his writtensubmissions, dated 11th December, 1991, Mr. Wettasinghe acceptsthe fact that information with regard to Mr. Senanayake's death wascommunicated to his clients by their registered Attorney, Mr. SaliyaMatthew.
The petitioner said that they did not have the time and theopportunity to retain another counsel when Mr. Senanayake died. Thedeath of a party’s counsel is, I think, a good and sufficient cause forthe reinstatement of a matter, if it occurs during the hearing, or sonear the date of hearing, that it is not feasible to retain a substituteattorney through whom the right to be heard could be exercised. Inthis case, counsel, Mr. Senanayake, died on 14th May, 1988. In thecircumstances, I have explained, the matter was listed for hearing on3rd May, 1989 but postponed and listed again on 16th May, 1989.The death of Mr. Senanayake was neither during nor near the date ofhearing. In the circumstances of this case, the death of counsel wasnot a sufficient cause for reinstatement.
In his affidavit, dated 22nd January, 1990, the third respondentstated that the petitioners had 'ample time" to retain counsel. I agree.Indeed, as we have seen, the petitioners found fault with the court forbeing considerate and generous in allowing so much time to elapsebetween the dates of hearing before and after the death of theircounsel. In terms of acting in competition with the passage of timebetween the death of their counsel, Mr. Senanayake, and the date ofhearing, the petitioners could, I think, have retained a substitute, innormal circumstances.
However, it was suggested by the petitioners that the condition ofthings, during the available time, were unfavourable to theaccomplishment of their object of retaining the services of anothercounsel. The petitioners alleged, in paragraph 5 of their petition tothe Court of Appeal, that they were unable to retain another counsel
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because of the “prevailing situation” in the country. This is also statedin paragraph 6 of the affidavit of the second petitioner dated 19thSeptember, 1989. Mr. Wettasinghe, in paragraph 16 (c) of his writtensubmissions of 24th July, 1991, stated that “the disturbed conditionsin the country affecting free movement, loss of means of livelihood,fear of terrorist reprisals against litigating etc." were "relevant". At p. 3of his additional written submissions of 11th December, 1991, Mr.Wettasinghe stated that "the petitioners reside in a remote village inthe South, and that there were disturbances in the area” and thatthese were among the "factors that have a bearing on the question ofrehearing"; that these were among the matters “itemized” in thejudgment of the Court of Appeal dated 28th September, 1990, when itordered reinstatement. They were, Mr. Wettasinghe, submitted,matters which had “entered into the mind of the learned judge”, inmaking his order. In the judgment of the Court of Appeal dated 28thSeptember, 1990, ordering reinstatement, the Court of Appeal notesthat learned counsel had urged that the "petitioners resided in aremote village of southern Sri Lanka. There were disturbances in thatarea." However, the suggestion that the petitioners may have beenunable to retain counsel because (A) their movements wererestricted; (b) they lacked financial means to retain counsel becausethey had been deprived of their livelihood; and (c) that “terrorists”might have punished them if they took steps to continue theirlitigation, were not mentioned at all by the Court of Appeal; for theywere embellishments learned counsel added after the matter hadcome up to the Supreme Court. If, as Mr. Wettasinghe says, theywere "relevant", they should have been alleged and proved in theCourt of Appeal at the stage when the re-listing application wasbefore that court. Belated reflections on irrelevant side issues andmatters which are not of decisive importance should be discouragedin the interests of the expeditious disposal of the work of theappellate courts. (See the observations of Lord Pearce in Rondel v.WorsleyiV)). As far as the question of “disturbances in that area” wereconcerned, Mr. Witanachchi submitted that this was a vagueexplanation which sought “protection from the blanket cover ofalleged subversive activities." He submitted that “the infirmity of thatexplanation becomes clear, when one thinks of the fact that thepetitioner-respondent had made the application for relisting inSeptember 1989 at the height of subversive activities."
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If there were certain difficulties caused by the so-called “prevailingsituation” and “disturbed conditions” which prevented the petitionersfrom retaining another attorney, these difficulties should have beenspecified and proved by sufficient evidence. As Niamatuallah, J.observed in Amna v. Ratan Lai(54). It is not permissible to haverecourse to speculation in matters of this kind.” A court cannot act onconjecture. In M. S. Mahomed v. Collector of Toungoo m Heald, J.observed that, ordinarily, the reasons for absence must be allegedand proved by oral testimony or by affidavit, unless the materialstatement of facts made in the applicant’s application is not traversedby the opposite party, or where, as in that case, judicial notice mightbe taken of the alleged facts. In the same case, Cunliffe, J. at p. 154,expressed the view that, even if a court had an inherent power to setaside an ex parte decree which had been entered upon theabsence of a party, which he doubted, he was ’perfectly sure that nocourt is justified in exercising an inherent right without propergrounds or proper evidence.”
The averment of the petitioners, and the submissions of learnedcounsel on their behalf, that substitute counsel could not be retainedbecause of “the prevailing situation in the country” and“disturbances" in the area in which they lived, and, with greatrespect, the assumptions by the Court of Appeal in that regard, arevague and unsubstantiated surmises. How the “prevailing situation”and ‘disturbances’ prevented the petitioners retaining counsel isobscure. The relevant circumstances had not been distinctly statedand proved. It would seem that all the Court of Appeal had before itwere mere suppositions based on insufficiently established grounds.A party seeking reinstatement must do better than that. He mustclearly, with sufficient particularity allege, and prove the facts allegedby him which might have inclined the court to take the view that therewas sufficient cause for his absence.
With great respect, I am of the view that the Court of Appeal erredin failing to take account of the fact that the petitioners had notdischarged the burden that lay upon them of clearly stating withsufficient particularity, and establishing by evidence, the facts uponwhich they based their allegation that they had no opportunity ofretaining a substitute counsel in the time given to them by the court.
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It is for the party seeking reinstatement to allege and prove thefacts upon the basis of which the court is invited to decide whetherthe absence in question was excusable. He must fail if he does notestablish the facts he alleges and depends upon. If the explanationfor absence is false, as I think it is in this case, then the allegedreasons for absence have not been established, and the partyseeking reinstatement must, therefore, fail. (See Kanshi Ram andAnother v. Divan Chand and Another <<®>, Baijnath v. Iqtidar Fatima(X).I am inclined to agree with learned counsel for the appellant that thealleged inability to retain another counsel on account of the"prevailing situation" and ‘disturbed conditions", threats to litigants,and so on. was. as he said "only a lame excuse" for the petitioners'lack of due diligence. It was„l think, a good example of what Walsh,
J.in Thakur Anrudh Singh v. Rupa Kunvar and Others1,71 described,perhaps with some asperity, as a ‘cock and bull" story which issometimes put forward by parties asking for restoration of theirdismissed suits. Mr. Wettasinghe submitted that the "ends of justicemust be served". Yet, as it was observed in Krishnappa Chettiyar v.Jhanda and Another(80>, a party “cannot expect to obtain justice onperjury."
The appellant endeavoured to explain why this “cock and bull"story was related to us. The appellant in paragraph 4(d) of hisaffidavit dated 22nd January, 1990, filed in the Court of Appeal,alleged that the petitioner had failed to pursue the matter"expeditiously” during the whole of the time it was pending before theCourt of Appeal, and suggested, in paragraph 5 of his affidavit dated22nd January, 1990, and in paragraph 1.9 (d) of the writtensubmissions of his counsel dated 2nd July, 1991, that this wasbecause, on the strength of a Stay Order obtained from the Court ofAppeal in 1982, the petitioners had secured the possession of certainfields from which, in terms of the order of the Assistant Commissionerof Agrarian Services, they might have been evicted, had they failedto pay the prescribed rent. The petitioners did not send a substitutecounsel into court because they did not want the dispute to bequickly resolved. They were quite happy as they were. I
I agree with Mr. Wettasinghe that such an insinuation wasunwarranted. The petitioners' absence cannot be attributed to a
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deliberate plan on their part to delay the hearing and determination ofthe application before the court. The application for the writ had beenfiled on 16th September, 1982. Whenever the matter came up at thepre-hearing stage, viz., on 22nd September, 1982, 6th October, 1982,and on 28th June, 1983, the petitioners were represented by Mr.Senanayake. The matter first came on for hearing, after thepreparatory steps had been taken, only on 15th July, 1983. Thepetitioners had nothing at all to do with that delay. On 15th July, 1983,however, as well as on 3rd October, 1983, 2nd December. 1983. 5thFebruary, 1984 and 13th February, 1986. when the matter came onfor hearing, Mr. Senanayake appeared for the petitioners, as he haddone on every occasion when the matter came up in court at the pre-hearing stage. The hearing was postponed on these dates becausethe court found it necessary or convenient to do so. There were twodates on which the hearing was postponed at the request of counsel:The matter was postponed on 22nd November, 1985 because Mr.Senanayake had requested that his absence be excused to enablehim to appear as a witness in another case. The only other occasionon which the matter had been postponed at the request of counselfor the petitioners was on 25th May, 1987, when Mr. Senanayake wasout of the country. Neither the way in which the pre-hearing dateswere fixed, nor the two postponements at the request of Mr.Senanayake had anything to do with the petitioners personally.Admittedly, there were several postponements since the matter firstcame on for hearing on 15th July, 1983. However, as we have seen,these were for the convenience of both court and counsel. In suchcircumstances, I cannot say with justification that lack of diligence, ifat all, was so distinguished and characteristic a quality of thebehaviour of the petitioners, that it might be inferred that the default inquestion was on account of the absence of due diligence, and thatreinstatement must, therefore, be refused. Hare Krishna Mahanti v.Bishnu Chand Mahanti<70>, is an instructive example. In that case anappeal preferred on 29th April, 1905 was not heard till 8th March,1906, and, in that time, the case had been postponed on sixteenoccasions, twelve of which were to suit the convenience of court, twofor the convenience of the appellant, and two for the benefit of therespondent. Reinstatement was granted upon proof that the partyand his legal advisers had, bona fide, made every effort to berepresented before the court.
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Equally, the fact that the petitioners had on previous occasionsacted diligently will not serve to excuse the default in appearancewhich was in question before the court. The mere fact that Mr.Senanayake had, before his death, appeared for them on each andevery occasion, except two, will not help the petitioners. Thus inKanshi Ram and Another v. Diwan Chand and Another m, the factthat the party had been represented by counsel when it had come upearlier, was of no avail, when the averment of illness, adduced as anexcuse for his absence, was proved to be false.
According to Mr. Wettasinghe, "the decision in this case hinges ontwo matters: {1) whether it can be said that there was a lapse on thepart of the instructing attorney; and (2) whether the clients' inactionbetween 14.05.1988 and 16.05.1989 is inexcusable.” Mr.Witanachchi pointed out that there was also the question of juniorcounsel. I have explained why the petitioners’ failure to take steps tobe represented by other counsel when the matter came on forhearing on 16th May, 1989, after the death of Mr. Senanayake on 14thMay, 1988, was inexcusable. I might be expected now to turn to thequestions of the "instructing attorney” and junior counsel.
Section 24 of the Civil Procedure Code provides, inter alia, that anyappearance, (except such appearances only attorneys-at-law areauthorized to make and except when the law provides otherwise),may be made by the party in person or by his recognized agent, orby an attorney-at-law “duly appointed" by the party or such agent toact on behalf of such party.
The due appointment of an attorney enabling him to make anyappearance – the question of counsel’s appearance will beconsidered later – must be in writing, signed by the client and filed incourt. This is provided for in Section 27(1) of the Civil ProcedureCode. The instrument of appointment is usually in terms of Form 7 ofthe First Schedule of the Civil Procedure Code. Basnayake, CJ. saidin Mohideen Ali v. Hassim{T' that this document is "commonly knownas a proxy". If a party has acted in contravention of the provisionsregarding the need for the proper appointment of a registeredattorney, this irregularity may be subsequently rectified (seeKadirgamadas v. Suppiah in but the fact remains that such an
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appointment is generally necessary. See Attorney-General v. M. W.Silva m. There are it seems some exceptions. Thus where the litigantis an attorney, he may himself instruct counsel without appointing aregistered attorney: The Estate of Malachais<74>. Another exceptionseems to be this: Where in a testamentary case incidentalproceedings are taken to inquire into the conduct of a registeredattorney for the administrator, that attorney has the right to berepresented by counsel without making a proxy in favour of anotherattorney-at-law to instruct counsel: In re the Appeal of J.P.A. v.Proctor™ following Silva v. Soopetamby™ and Perera v. Perera{U Inthis case, a proxy was executed on 16th September, 1982, by thepetitioners in favour of Mr. Saliya Matthew, authorizing him to act ontheir behalf in the matter of the application for the writ in the Court ofAppeal. It was duly filed in court. Mr. Matthew, thereby became thepetitioners' “registered attorney." Section 5 of the Civil ProcedureCod.e defines “registered attorney", to mean an attorney-at-lawappointed under Chapter V by a party or his recognized agent to acton his behalf. In terms of section 27(2) of the Civil Procedure Code,the proxy remained in full force during all of the proceedings in theCourt of Appeal and so, at all material times, Mr. Matthew was theregistered attorney in this case.
Since the petitioners had duly appointed a registered attorney,they were obliged, to act through their registered attorney and notpersonally (e.g. cf. Silva v. Andiris<7W, Kandiah v. Vairamuttu (791,Wijesinghe v. Council of Legal Educationm, Perera v. Perera andAnother'*", Seelawathie and Another v. Jayasingheand, ingeneral, they were bound by the acts and omissions of theirregistered attorney. As far as the registered attorney in this case wasconcerned, the binding effect of his actions was based on thepowers conferred by the terms of a standard, printed proxy in termsof Form 7 of the First Schedule to the Civil Procedure Code. It wasneither extended expressly or impliedly, as it might have been (Cf.per Basnayake, CJ in Mohideen Ali v. Hassimm, nor was it restricted,if it was restricted, that fact should have been communicated to theother side. (See Kasinathan Chetty v. Sathasivam et alm). There is noevidence of that. And so, in this case, I shall determine the severalissues based on the authority given to Mr. Matthew by the petitioners,in terms of the proxy given to him in the standard form.
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If parties are required by law or by court to be present, then theymust be present: (See the proviso to S. 24 of the Civil ProcedureCode; see also Kanagasabai v. Kirpamoorthy(MI). Indeed, since therewas no requirement in law calling for their presence, and since thecourt had not required the petitioners to be personally in attendance,they need not have been present once the registered attorney hadbeen duly appointed (Cf. Rahiman Lewai v. Negamany m, PorolisSilva v. Porolis Silva m, Canon v. Telesinghe m, Andiappa Chettiyar v.SanmugamMotha v. Fernando 1®° Chelliah PiHai v. Mutuvelu (9,).Cf. also Sohambal and Another v. Devchandl4S)). Even if thepetitioners had been present when their duly appointed attorney wasabsent, the default of the attorney may have been held against them.(Cf. Esmail Ebrahim v. Haji Jan Mohamed<">, Namperumal Naidu v.Alwar Naidu and Othersm). In the circumstances, the petitionerswere under no obligation to explain their absence. (Cf. MowarRaghubar Singh v. Gauri Charan Singh ,93 Ajai Verma v. BaldeoPrasad™, Sohanlal v. Devachand (supra) at p.15 para 25. It was thedefault of the attorney who was entitled to appear that had to beconsidered.
In general, if a party has an attorney (whether as a registeredattorney or as counsel) who is entitled to represent him at a hearing,and that attorney, without sufficient excuse, was absent on the dateappointed for hearing, the court, if it had dismissed the application, isentitled to refuse to reinstate the matter/7', This is clear from theprinciples emerging from Dhakshinamoorthy and Qadar Baksh,which I have already cited, and as well from the decisions innumerous other cases, (E.g., cf. Rang Behari Lai and Others v.Racheya Lai™, Baji Lai and Others v. Nawal Singh<w, Gangabbai v.Ghansarmla ,97), Saif Ali v. Chirag AH Shah and Others m, NanakChand and Others v. Sajad Hussain & Others™ Bishau NarianBhargavua v. Abdul Manan and Others (M1, Hari Das Faquir v.Praduman Nath and Another<W), Maung Than v. Zainat Bibi <43»,Kunashi Muhammad and Others v. Barkat Bibiw>, Biru Ram v. RodaMai and Others ,,00 Ma Seln v. Finn,m, Daropadi v. Atma Ram andOthers™).
Once a party has a duly appointed attorney-at-law who wasentitled to appear for him at a hearing, whether that attorney was theregistered attorney or counsel, then, in general, it is of no avail for
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that party to complain that he had no hearing because the attorneywho ought to have appeared for him was absent and frustrated hisexpectations. The mere absence of the attorney who was entitled andobliged to appear, however disappointing it might have been to theclient, does not constitute a sufficient cause to warrant thereinstatement of a matter. (See per Drake-Brockman, J.C. InGangabai v. Ghansaramba{tv) in Gangabai, the party, who wasparalysed and unable to attend the court, retained the services of apleader. On the date of hearing, the pleader's train arrived late. Hewent to the home of another lawyer for some food, and arrived incourt half an hour after it had been taken up and dismissed. Theappellate court refused to set aside the order of the lower courtdismissing the action, although it was observed that the "usual andproper practice", except in the case of an habitual offender who hadbeen previously warned, would have been to have kept the matterdown and taken up some other work). The view taken in some casesthat a party who has engaged the services of a lawyer is within hislegal rights in being personally absent and hence if that lawyer ‘failsand betrays him", he had sufficient cause to have the matterreinstated, was rejected by Drake-Brockman, JC in that case (p. 4).
Admittedly, it is the party who suffers when the attorney who wasunder a duty to have appeared for him fails to appear withoutsufficient cause. Yet, that is not a factor that would be relevant indeciding whether a matter should be reinstated. (See PakrMoohideen v. Mohammadu CassirrtScharenguivel v. On<w>)Unless there is sufficient cause for the absence of the attorney whowas entitled to appear, the matter should stand dismissed. The partymay have a remedy against his negligent registered attorney (unless,perhaps the registered attorney was also acting as counsel, in whichevent, for reasons of public policy, no remedy would be available;see Rondel v, Worsley (supra). Mulligan v. M'Donagh,Cf.
however, section 34(3) of the Administration of Justice Law No. 44 of1973); but relief by way of reinstatement will not be granted becauseof the culpable failure of his attorney to appear, (Baji Lai and Othersv. Nawai Singh m), unless, perhaps, the breach of his duty to appearamounted crassa negligentia, cf. Rang Behari Lai and Others v.Racheya Lalm or it was based on fraud (Kalawane DhammadassiThero v. Mawella Dhammavisuddhi Thero (,0“)-
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I have already said that reinstatement on account of the absenceof the parties cannot be considered on compassionate grounds. Imust now say that where no sufficient cause is shown for theabsence of the attorney who was under a duty to appear, there areno grounds for an application ex debito justitia of any inherent powerto reinstate the matter. The petitioners were under no legal obligationto be heard through lawyers. Yet, no doubt after due considerationand deliberation, as a matter of conscious willing and resolution, theydecided to place the matter in the hands of lawyers. The successthat might have come from their lawyers’ endeavours would havebeen enjoyed by them. They must, now, with evenness of mind, takethe consequences of the defaults and failures of their lawyers. (Cf.Biswanath Dey v. Kisohori M. Pal, (supra)-, Daropadi v. Atma andOthers (supra)) Kunshi Muhammad and Others v. Barkat Bibi(supra)-, Maung Than v. Zainat Bibi (supra); Kanshi Ram and Anotherv. Diwan Chand and Another (supra); Sohambal and Another v. DevChand (supra)). The decision of the Full bench in U Aung Gyi v.Government of Burma and Another m is instructive. In that case, thelawyer had gone to another court and was five minutes late. Inrefusing reinstatement, the court at p. 164 observed as follows:
“He made no arrangement whatever to have the interests ofhis client safeguarded during his absence, and there was noevidence upon which the learned Subdivisional Judge couldhave found that sufficient cause for his non-attendance hadbeen shown. Advocates who are engaged in cases which arefixed for hearing at a given time and place cannot be allowed totreat the Court before which the hearing is to take place withcontumely or indifference, and then apply casually forreinstatement of a suit dismissed in their absence merelybecause they hoped or believed that they might attend thehearing. They must take reasonable precautions and theprovisions of 0.9 R 9 become meaningless if it afterwards beurged that although none were taken and there was no sufficientcause for their non-attendance the suit can still be restored tothe file because the litigant would suffer if it were not."
On the other hand if the attorney entitled to appear for the partyhad reasonable grounds for his absence, the court would reinstate
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the matter on the basis that there was sufficient cause to do so. (E g.cf. Godhni v. Shamial and Others, Mrigendra Nath Bir and Othersv. Dibakar Bir and Others t3* Lachiram and Others v. Almi andOthers"m, Malhar Rao v. Jaganmathi,0' Abdul Aziz v. PunjabNational Bank Ltd.® Ajai Verma v. Batdeo Prasadl94), Sardar Begumv. Muhammad Said'm, Lachman v. Murarilal and Others'3*', BhagwanDas and Another v. Darkhan and Another "09), Arjan Singh andAnother v. Bachan Singh and Another (,,0I1 Motichand v. Ant Ramm
The registered attorney has made no explanation for his absencein this case. Mr. Wettasinghe seemed to suggest that there was nodefault on the part of the registered attorney in this case which hewas obliged to explain. Mr. Wettasinghe, at page 5 of his writtensubmissions dated 11th December. 1991, stated as follows:
"In the case of Gianchand v. Hyder AH™, senior counsel wasalive, and although he offered an explanation for the default thatwas acceptable to court, the appeal was not reinstated, sincecourt held that there was an additional default which had notbeen purged. Court held that junior counsel had a duty to bepresent in court in the absence of the senior, and no duty wascast on the instructing attorney. The recent fusion of the twobranches of the profession does not alter this situation, sincethe fusion while effecting a single nomenclature, “attorney-at-law", left the dichotomy of functions intact".
Admittedly, although all lawyers in Sri Lanka are now known asattorneys-at-law, the old distinction between advocates and proctorshaving been abolished (see sections 33, 34 and 36 of theAdministration of Justice Law No. 44 of 1973), yet some of themchoose to practise exclusively as counsel, while others choose topractise exclusively as instructing attorneys. And a third groupengages in a mixed practice. However, that does not mean that aregistered attorney can adduce, as a sufficient cause for his absenceon the day appointed for the hearing of the matter in respect of whichhe has been appointed, the fact that he is an “instructing attorney"who does not usually appear in court. There are circumstances inwhich he might adduce the explanation that, although he was the
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registered attorney in the case, yet, because he had appointedcounsel, he, the registered attorney, should not be called upon toexplain his absence. That is another matter which I shall deal with indue course. But for the present I must say this: Even where a formal,legal distinction between the two branches of the profession exists, ifthe lawyer concerned belonging to what is regarded as the"instructing” branch (solicitors/proctors), nevertheless has a right ofaudience before the court or tribunal concerned, he must appear. Ifhe does not do so, without sufficient cause, he is guilty of negligence.(See Swannel v. EllisCf. Courtney v. Stock ("®). All attorneys-at-law in Sri Lanka, whether they choose to appear as counsel or not,have a right of audience in every court of law in the Republic. (Cf.section 34(1) of the Administration of Justice Law No. 44 of 1973). Mr.Matthew not only had the right to appear in terms of the law, he wasexpressly empowered by the proxy given to him by the petitioners toappear in the Court of Appeal on their behalf. He was also obliged bythe Supreme Court (Conduct and Eliquette of Attorney-at-Law) Rules.1988 (Gazette Extraordinary of 7th December 1988) to appear in thecase; Rule 16 provides as follows:
"Where the services of an Attorney-at-Law have beenretained in any proceedings in any Court, Tribunal or otherinstitution established for the Administration Justice, it shall bethe duty of such Attorney-at-Law to appear at such proceeding,unless prevented by circumstances beyond his control".
Where, an attorney-at-law holding a proxy to appear for a client isof the view that he is unable for any reason to appear for his client atthe hearing, he is empowered by the proxy to “appoint" one or moreattorney or attorneys-at-law or counsel to represent him in court.(Although the prescribed form of the proxy (Form 7 of the FirstSchedule of the Civil Procedure Code) empowers him to appoint “oneor more attorney or attorneys or counsel”, this means that he mayappoint one or more attorneys as counsel. He cannot appointanother registered attorney. Although the client may appoint severalattorneys (dfg. partners or assistants) through the same proxy (e.g.see The Times of Ceylon v. Low<113), there can only be one proxy onrecord at a time. See Silva v. Cumaratunga "u>. Another registeredattorney, however, may be appointed in appeal. (See Gunasekera v.
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de ZoysaA registered attorney may want to exercise his powerto appoint counsel for one or more reasons. It may be that otherengagements prevent him from appearing. It may be that, being acase of some difficulty, he feels obliged, as a duty to court, to retain aleader at the Bar to assist the court. (See the observations of Sargant,J. in In re Hawkins, White v, White(”61). Or he may feel that the matteris beyond his capacity and his experience, and, therefore, acting ashe is expected to do in the best interests of his client, it is necessaryto retain another attorney. (Indeed, even in the case of counsel, if hereceives instructions which he believes to be beyond his experienceor capacity, he should so inform the registered attorney, indicatingthat in the client’s interest the registered attorney might think it right toinstruct another counsel. See Halsbury, Vol. Ill para, 1138). Whateverthe reason may be that makes it impossible or undesirable for theregistered attorney to appear personally, if he decides not to appearpersonally, then he is obliged to “appoint" another attorney to appearas counsel, for otherwise he would be failing in the duty undertakenby him when he accepted the proxy “to do and perform all such acts,matters and things as may be necessary". If he was not going topersonally appear, it was “necessary" for him to appoint anotherattorney to do so, for otherwise, as it happened in this case, therewould be no appearance for the clients whose right to be heardcould not, therefore be exercised. If he was not going to appearpersonally, and neglected, without reasonable excuse, to appointanother attorney to appear, the registered attorney would be guilty ofnegligence. (Cf. De Roufigny v. Peale <-'n, Hawkings v. Harwoodcf. also Townley v. Jones*"9*. Mainz v. Charles and James Dodd"10'(1978) Sol. Jo. 645 – cases of failure to instruct counsel). I
I am unable to accept Mr. Wettasinghe’s submission that once Mr.Matthew, the registered attorney, had informed his clients thatcounsel had died, then his duties were at an end and that it was forthe clients to regain another counsel. The clients may themselveshave chosen counsel. Mr. Matthew may, of course, have consultedthe petitioners as to who should be appointed. Being an attorneyhimself, and, therefore, acquainted with the available exaertise in theprofession, he might have advised his lay clients as to who mightbest serve their interests. (However, perhaps, counsel should notrecommend another attorney as his leader or junior unless his
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opinion has been sought. See Halsbury, Vol. Ill para 1129 at p. 613;But counsel may, I think, hand over a matter to a “devil", although itshould, perhaps, be with the express or implied approval orratification of the registered attorney. Cf. Halsbury, Vol. Ill para. 1138note 12 at p. 621). However, it was Mr. Matthew's right to appointcounsel. I have already explained why it was his right: Once he wasappointed, the clients must act through him in all matters exceptthose they were required by the court or by law to do personally. Theretention of counsel is not a matter required by law or by the court. Itis, like all other matters not required by law or by the court to be doneby the parties personally or by their agent, a matter for the registeredattorney. The ultimate choice of who should be retained as counsel iswith the client (In Re Harrison |,2,)). However, the formal right ofretention belongs to the registered attorney, he may exercise thatright by engaging the services of counsel himself or by acquiescingin a selection made by the client. If he disagrees with his client’sselection, he must move to have the proxy revoked and drop out ofthe case if the difference of opinion leads to a loss of confidence. (Cf.Rule 20 of the Rules of the Supreme Court (Conduct of and Etiquettefor Attorneys-at-Law). But the right of retaining counsel remains thatof the registered attorney.
Rule 29 of the Supreme Court (Conduct of and Etiquette forAttorneys-at-Law) states as follows:
A 'Retainer' is an engagement of an Attorney-at-Law by aclient to appear for him in any litigation in which he may at thattime be involved subject to the payment of his fees and subjectto such conditions as the Attorney-at-Law may lay down.
The word “client" here does not necessarily mean litigant. A “layclient", as Basnayake, CJ in Mohideen Ali (supra) at 469 describedthe litigant, may retain a registered attorney. However when counselis retained, he is engaged by counsel’s professional client – theregistered attorney. The word “client" in Rule 29, therefore, causes nodifficulties in holding that counsel must be retained by a registeredattorney
Indeed, no counsel, even if one had been engaged by the parties,could have appeared for the petitioners, unless he had been
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instructed by the registered attorney. A party who has a dulyappointed registered attorney on record may only appear throughthat attorney or by an attorney appointed by the registered to act ascounsel. Where there is a registered attorney on record, the accessof any other attorney to court to appear as counsel, in respect of thematter with regard to which the registered attorney has beenappointed, can only be through the agency of the registered attorney.Section 24 of the Civil Procedure Code empowers the party or hisagent or his duly appointed attorney to appear. In terms of his proxythe duly appointed attorney, viz., the registered attorney, may appointcounsel to appear. When counsel appears, in terms of the proviso tosection 24, he “represents the registered attorney in court." This, inmy view, is the effect, of section 24 read with section 27, section 5(s.v. "counsel”, “registered attorney"), and Form 7 of the FirstSchedule, of the Civil Procedure Code.
In Mohideen AH v. Hassim {supra) Sansoni, J. (as he then was) atp. 460 stated as follows;
*1 cannot accept the interpretation which Mr. H. V. Pereraseeks to give to section 24 of the Code, which says that anadvocate instructed by a proctor “for this purpose” representsthe proctor in court. I find it impossible to say what the words"for this purpose" mean in the context. I think this sentence inthe section was only intended to say that the advocate and notthe proctor should conduct the case of his client in Court. I donot accept the proposition that the advocate, by reason of thissection is merely the agent of the proctor who has retained him.The limitation which Mr. Perera seeks to impose on anadvocate's authority is something quite revolutionary, and it isopposed to a long line of decisions in which the powers ofcounsel have been considered and laid down". I
I would respectfully agree that counsel would gain full control if heis retained and instructed. The “long line of decisions", some of whichhis Lordship cited, related to the powers of counsel who had beenretained and instructed. Sansoni, J. at p. 461, accepted the positionthat the powers of counsel are derived from the fact that counsel hasbeen “retained and briefed by a proctor". (Cf. also Ratwatte v.
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Nugawela(122), Punchibanda v. E M. Punchi Banda and Others l'z”. Iagree with his Lordship that counsel is not the “mouthpiece either ofhis client or of his proctor', but with great respect, counsel in acontentious civil matter may in court open his mouth at all only if theregistered attorney has enabled him to do so by instructing him. Thatis what appointment in terms of the proxy entails.
As far as counsel, is concerned, his appointment, unlike that of theregistered attorney, does not depend on a formal, document ofappointment. Although in Sohambal v. Devachand(li| Modi, J saidthat
… a party when he has engaged counsel by a proper writingand has briefed him for the case, the latter is perfectlycompetent in law to represent the party in court and act andplead on his behalf and the personal appearance of the party isnot necessary and cannot be insisted upon unless by virtue of aspecific provision of law the court calls upon the party to appearpersonally…
yet, according to our law, there is no document which counsel -senor or junior – is required to produce empowering him to act (seesection 27(3) of the Civil Procedure Code). In reading the Indiandecisions, therefore, the dicta in some cases referring to the need forcounsel to withdraw from the proceedings in order to create asituation of default, must be understood in the light of the formalappointment of the counsel in those cases in writing.
Important consequences flow from the prescribed, and traditionalway in which the services of counsel come to be engaged throughthe intervention of a registered attorney. To accept Mr. Wettasinghe'sviews on the question of who should retain and instruct counselwould disturb foundations upon which other principles rest. Thereare, for instance, questions relating to counsel's freedom from liabilityfor negligence or breach of contract, as well as questions relating tothe recovery of his fees that depend upon the way in which counsel'sservices are engaged. The relation of counsel and client, broughtabout by the interposition of the registered attorney, renders themmutually incapable of making any contract of hiring and serviceconcerning advocacy in litigation. (See Halsbury Vol III paras. 1199,-
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1138). There being no contractual obligation between counsel andeither the registered attorney or lay client established by theappointment of counsel by the registered attorney, counsel cannotrecover his fees from either the registered attorney or from the layclient by any legal process. (See Halsbury Vol. Ill paras. 1201, 1138and 1198. In the case of Thornhill v. Evans (lM it was said thatcounsel's remuneration was an honorarium rather than merces. Thatis an additional reason. (See also Moonesinghe v. Pereira et a!. 1,2511but cf. section 34(3) of the Administration of Justice Law No. 44 of1973). The registered attorney, however, subject to his bringing theaction in time, may sue the party for the fees contracted to be paid tohim (See Weerasuriya v. de Silva 11281, Karunaratne v. Velaiden (l2n).Nor can the lay client proceed to recover damages for breach ofcontract if counsel failed to attend court or if he was negligent in theconduct of the case. (See Halsbury Vol. Ill paras 1194 and 1198;Robertson v. Macdonough 1,28 Mulligan v. M'Donagft'm. But cf.section 34(3) of the Administration of Justice Law No. 44 of 1973).
Indeed, it would be in violation of Rule 4 of the Supreme Court(Conduct of and Etiquette for Attorneys-at-Law) Rules 1988 (GazetteExtraordinary 535/7 of 7.12.1988) for any attorney who was notinstructed by the registered attorney to appear in court. That Rulestates as follows:
“Where in any legal matter or proceeding the appearance ofan Attorney-at-Law has been registered, no other Attorney-at-Law may appear in the said matter or proceedings unless he isso instructed by the said registered Attorney-at-Law. Provided,however, any Attorney-at-Law may be assigned to or appointedby court to appear in such legal matter or proceeding".
I take it that the phrase “where in any legal matter or proceedingthe appearance of an Attorney-at-Law has been registered” means“where in any legal matter or proceeding the proxy of a registeredattorney has been filed of record”. What else can it possibly mean?
There are also ethical considerations: In England, although there isno rule preventing a litigant from instructing counsel directly, orpreventing counsel so instructed from appearing on behalf of a
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litigant, yet, as Lord Campbell CJ pointed out in Doe d' Bennett v.Haleit is "the almost uniform usage" that has prevailed for a verylong time in England, that it is clearly against the rules of theprofession for counsel to accept a brief in a civil suit from anyone buta solicitor. To see or advise a client or accept a brief to appear as anadvocate on behalf of a client in any contentious business without theintervention of a solicitor may result in disbarment. (See Halsbury,1973 4 Ed. Vol. 3 para 1120. Even with regard to non-contentiousbusiness, generally, the intervention of a solicitor is considereddesirable – Halsbury, op. cit. para. 1121).
In Sri Lanka, it is more than a matter of ethics: In terms of the CivilProcedure Code and the Rules of the Supreme Court made under thepowers vested in the Court by Article 136(1) (g) of the Constitution, itis a registered attorney alone who can appear unless he hasinstructed counsel.
Whether, oo the one hand, a person is a registered attorneyappointed by the party, or on the other, he is counsel appointed bythe registered attorney, also has a bearing on the determination of thequestion whether there was a default in appearance. When aregistered attorney whose proxy is on record is present in court, buthas no instructions, he nevertheless appears and there is no defaultin appearance, (See Gargial v. Somasunderam Chetty (18>,Scharenguivel v. OnIM) Canon v. Telesinghe(WI, Andiappa Chettiar v.Sanmugam Chettiar(e*>, Chelliah Pillai v. Mutuvelu (St), Motha v.Fernando(90)). There may be circumstances in which the presence ofa registered attorney may not be an appearance: see Senanayake v.Coorayim, Kandappa v. Marimuttu ,,31 Perera v. Gunatilake ,,K Seealso the comments of Lyall Grant and Garvin JJ on these cases inScharenguivel (supra) at p. 305). The practice of withdrawing from acase, alleging lack of instructions, was strongly condemned bySansoni, J. in Syadu Varusai v. Weerasekera,W3’. Sansoni J. said at p.92 that the only instance where a withdrawal by counsel ispermissible “and that too with the leave of the court" is where counselhas been retained only for the limited purpose of making anapplication for a postponement and such application is refused bycourt.
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In the case before Sansoni, J. one of the parties, a materialwitness, was supposed to have been ill in India. There was everyreason to suspect, Sansoni, J. said, at p. 90, that that party, despitethe medical certificate produced, was not in fact ill. When apostponement was refused, counsel said he had no instructions andwithdrew. It was a matter that had been decided after trial and thecase had been sent back by the Supreme Court to enable each partyto put in a specified document and to lead any fresh evidence if theywished to. The party who was absent had already given evidence atthe first trial. No application was made that such evidence beconsidered. The document in question had not been tendered.Counsel did not cross-examine the witness of the other party whowas called to give evidence. Sansoni J., deplored the practice ofcounsel and proctors withdrawing from actions. However, hisLordship, accepting that where there are no instructions, counselcannot go on held that “withdrawal” should be with leave of court. Atp. 92 his Lordship said that if the parties’ proctor failed to instructcounsel adequately on the trial date in question, “he should havebeen prepared to conduct the case himself when the judge orderedthat the trial should proceed. His failure to do so cannot place hisclients in a better position as regards the plaintiffs."
When counsel pleaded he had “no instructions", l do not think that,except as a matter of courtesy, there was, with great respect, a needto obtain the permission of the court to withdraw. When counsel iswithout instructions, his existence as counsel comes to an end.Section 5 of the Civil Procedure Code defines counsel as “anattorney-at-law instructed by a registered attorney.” His physicalpresence is not an appearance.
Section 24 of the Civil Procedure Code contemplates theappearance of counsel ‘instructed by a registered attorney". Unlesscounsel is instructed, he cannot appear as counsel in the case. (SeeSatisch Chandra Mukherjee v. Apara Prasad Mukherjee (l34). EsmailEbrahim v. Haji Jan Jan Mohomed (M Hinga Bibie v. MunanaBibie(,35), Charu Chandra Ghose v. Chandi Charu Roy Chowdhury t2iRambhanjan Singh v. Pashupat Rai<1*', Manickam Pillai v. MahudunBathummal'’37>, Maung Pway v. Saya Pem, Baslingappa Kushappa v.
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Shidramappa lyerim. See also Biswanath Dey v. Kishori M. Paiw,Sohambalv. Devchand<45
If Mrs. Dissanayake had merely come into court to apply for apostponement, without any other instructions, she was not“appearing" for the petitioners. Had the court refused her application,being without instructions in the case, she might have beenconstrained to say that she had no further instructions. There wouldthen have been a default in appearance, despite her physicalpresence. (E.g. see Soonderlal v. Goorprasad,,3W, Esmail Ebrahim v.Haji Jan Mohamedm, Hinga Bibie v. Munna Bibietm, Satish ChandraMukherjee v. Apara Pershad Mukherjee {supra), Maung Pway andAnother v. Saya Pe (supra), Manikampillai v. Mahudum Bathummaland Other (supra). See also Biswanath Dey v. Kishori M. PalHabibu Lebbe v. Punchi Efana(,40). In order to ‘appear" counsel mustbe retained and instructed and not merely be physically present incourt. In Satish Chand Mukherjee (supra) at p. 336 Mukherjee, J.said:
The principle applies quite as much to a plaintiff as to adefendant and when either party to litigation is represented by apleader it is upon the assumption that the pleader is dulyinstructed and able to answer all questions relating to the suit.
If therefore mere physical appointment of the pleader wastreated as appointment within the meaning of the Code thepolicy of the law and the ends of justice would both bedefeated.
In Basalingappa v. Shidramappa (supra) Divatia J. at p. 323 saidthat “ … it is difficult to regard the mere presence of a pleader incourt as equivalent to his appearance." His Lordship, at p. 322 fin.323 said:
The question as to whether the defendant’s pleader can besaid to have appeared depends not upon his mere presence incourt but whether he was duly instructed in the matter beforethe court … if the pleader is present in court on.any day of
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hearing but has no instructions as to how to proceed with thecase, there is no appearance of the defendant.
In Sohambal v. Devachand [supra) Modi, J. at p. 15 para 23 saidas follows:
in this state of the law, we are bound to hold that generallyspeaking the presence of counsel for a party is equivalent tothat of the party himself according to the scheme envisaged inour Civil Procedure Code. This, to our mind, is subject to onelimitation, namely, where counsel for a party pleads noinstructions to court, his mere physical presence is of no availand a default in appearance must be deemed to have beencommitted in such a situation.
Chief Justice Layard's dicta in Gargial's Case (supra) on thegeneral inapplicability of the Indian decisions, with great respect,needs reconsideration. Having regard to the provisions of our ownCivil Procedure Code, the decisions of our courts on the need for theinstruction of counsel, the Rules of the Supreme Court on Conductand Etiquette, ethical considerations and the implications for theprinciples regarding fees and contractual liability, one cannot butconclude that unless counsel is instructed, there can be noappearance. Whether a registered attorney appears although he hasno instructions is, as we have seen, another matter.
The Court of Appeal, in the case before us, had, inter alia, it seemsordered reinstatement, because there was no evidence to show thata "particular junior” counsel had been appointed. With great respect,I do not think that it was the correct approach to the question whetherthe junior counsel in this case, were, as Mr. Withanachchi submitted,obliged to explain their absence. There may be a single counsel orseveral counsel in a case. The question in this case was not thenumber of junior counsel, but whether there were any duly appointedjunior counsel at alt. Had the registered attorney, in the exercise ofthe powers given in the proxy, taken steps to “appoint" anyone ascounsel by retaining and instructing him? Had junior counsel beenretained and instructed in this case?
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“Retained" means engaging the services of an attorney to give hisservices to a client. Rule 29 of the Supreme Court (Conduct andEtiquette for Attorneys-at-Law) Rules states as follows:
A ‘Retainer” is an engagement of an Attorney-at-Law by aclient to appear for him in any litigation in which he may at thattime be involved subject to the payment of his fees and subjectto such conditions as the Attorney-at-Law may lay down.
Although retention usually involves the payment of a fee (indeedHalsbury Vol. Ill para. 1147 says that there can be no retainer withoutthe payment of a fee), there may be circumstances when no fee isrequired. For instance Rule 27 of the Supreme Court (Conduct andEtiquette for Attorneys-at-Law) states that,
An Attorney-at-Law may in the best traditions of theprofession, reduce or waive a fee on account of the poverty of,or hardship to the client or prospective client or where otherwisethe client or prospective client would be effectively deprived oflegal advice or representation.
Halsbury Vol. Ill para. 1198 note 5 says this:
Thus a barrister may at his discretion waive his normal feewhere he acts for a personal friend, a fellow barrister, a charity,or for a legally aided person …; but a barrister should notaccept a junior brief without a fee to gain experience or to assistanother barrister who has asked him to appear as juniorcounsel without a fee.
Although the petitioners in this case stated that they paid Mr.Senanayake's fees, there is nothing to indicate that fees were paid toanyone else. If there were juniors, there was a duty on the part of thesenior to ensure that they were remunerated. (See Halsbury, Vol. Illparas. 1203 and 1204). There, is, however, nothing to suggest thatany junior was engaged and remunerated or that the juniors hadwaived their fees.
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Nor is there evidence to show that counsel were instructed.Sansoni, J., as he then was, in Mohideen Ali v. Hassim(S3), referred tocounsel being ‘retained and briefed" in order to pass on to him thecontrol of a case in court. In England, counsel must be given a brief,prepared in a specified way, containing all the information andpapers necessary for him to conduct the case. (See Halsbury Vol. Illpara. 1138 note 1 at p. 621). In England, merely giving a retainer tocounsel confers no authority upon him. He must be given a brief.Ahitbol v. Bendetto <14n, Doe d Crake v. Brown(M2), Halsbury, Vol. Illpara 1179). In addition. Counsel must be instructed. Halsbury (Vol. Illpara 1190 note 1) states as follows:
But merely to hand a brief to counsel is not to instruct him. Thesolicitor himself or some competent clerk must explain the subjectmatter of the brief, be present in court and give any informationthat counsel may require. If a solicitor fails so to instruct counsel,then, though the brief has been delivered and counsel is presentat the trial, the solicitor may be liable: Hawkins v. Harwood0'6'.
As Divatia, J. observed in Basalingappa v. Shidramappa(1M1.whether counsel was instructed in a case is "a question of fact”. Ingeneral, counsel should be given the papers and necessaryinformation to deal adequately with all the material questions: (SeeBasalingappa. (supray, see also Maung Pway v. Saya Pem). If this isdone, I do not think a registered attorney is obliged to prepare a briefin any particular way or that he should ordinarily be in attendance. Inany event, if counsel appears in court and states that he is instructed,the court will not inquire into his authority to appear. (See Murphy v.Richardson <,43 Allen v. Francis (l44), Doe d’ Bennett v. Hale (IM),Halsbury, Vol. Ill para. 1179).
I am of the view that there is nothing in this case to show that juniorcounsel had been retained and instructed.
Mr. Witanachchi submitted that it must, on the basis of Gianchandv. Hyder Ali (supra), be assumed that there were junior counselbecause the leader, Mr. Senanayake, was a silk, and that the mattershould not have been reinstated without junior counsel satisfactorilyexplaining their absence. In Gianchand, when the case was takenup for hearing in the Supreme Court, Counsel appeared forthedefendant-appellant, but, there was no appearence for theplaintiffs-respondents. After hearing the argument of counsel for the
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appellant, the court reserved order, and made order allowing theappeal and dismissing the plaintiffs-respondents action with costs.Subsequently, an application was made to have the order of the courtvacated and to have the matter relisted for argument. In support ofthe application. Queen’s Counsel, who had been retained to appearfor the plaintiffs-respondents, explained that his clerk had failed tonotify the Registrar of the Court that he had been retained. The casehad been, therefore, fixed on a date on which he was not free. Alles,J., (Weeramantry, J. agreeing), said at p. 301
If the matter stood there, we might have been disposed tohave the case listed anew for argument, particularly as Counselfor the appellant, who was the successful party at the appeal,had no objections to the appeal being re-argued. There is,however, no explanation before this Court why Junior Counsel,who must have been retained to assist learned Queen’sCounsel, failed to be present in Court … If we were to permitthis application, in the absence of such an explanation, wewould create an unhealthy precedent… This is not a case inwhich the client's legal advisors had mistaken a date – anexplanation which may amount to "sufficient cause" undersection 771 of the Civil Procedure Code, but a case whereJunior Counsel has not placed any explanation before Court forhis failure to be present in Court on the relevant date … There isno explanation before this Court why Counsel who has beenretained as Junior to Queen’s Counsel failed to appear on thedue date. Consequently we hold that the plaintiffs-respondentshave not satisfactorily explained to the Court why Counsel, whowould have been retained as Junior to Queen's Counsel, wasnot present in Court on 6th June 1970 and we are, therefore,constrained to refuse this application."
It was assumed in Gianchandlhat, because the leader in the casewas a silk, there would have been junior counsel. It was, with greatrespect, a reasonable assumption.
Ever since the first King's Counsel of the Ceylon Bar wereappointed in 1903, silks had always appeared with juniors. The
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English rule {e.g. see Halsbury, (1973 Ed, J., Vol. 3 para. 1129) that asilk ought not to appear as an advocate in any court of law without ajunior had been consistently followed. At the time of the decision inGianchand, it was, therefore, proper to infer that the leader in thatcase, a Queen's Counsel, would have had juniors. The last Queen’sCounsel were appointed in 1968. Ceylon became the Republic of SriLanka in terms of a Constitution adopted and enacted on 22nd May,1972, and so, there could be no Queen’s Counsel after that, but wedo have a division of the Bar into two ranks: those who wear silkgowns and sit "within the bar" at the ceremonial sittings of theSupreme Court wearing full-bottomed wigs, with bands on a wingcollar and who are regarded as leading counsel; and other attorneyswho are not of that rank who sit bare-headed outside the Bar atceremonial sittings, wear stuff gowns, and black ties and areregarded as juniors. On 21st July 1977, the Constitution of theDemocratic Socialist Republic of Sri Lanka was enacted, and interms of the Supreme Court (Senior Attorneys-at-Law) Rules made bythe Supreme Court under Article 136 (g) of the 1977 Constitution,published in Gazette Extraordinary No. 115/9 of November 19, 1980,eleven leaders, including Mr. Nimal Senanayake. were appointedSenior Attorneys-at-Law.
Rule 8 of the Supreme Court (Senior Attorneys-at-Law) Rulesprovided as follows:
A Senior Attorney-at-Law shall not appear in a Court, giveopinions or settle pleadings except with the assistance of anAttorney-at-Law who is not a Senior Attorney and in nocircumstances act without the instructions of another Attorney.
Subsequently, in 1984, in terms of the Eighth Amendment to theConstitution, leaders of the Bar were designated as "President’sCounsel. On 13th January, 1990, at a meeting of the general body ofsilks, it was decided as follows:
‘A President’s Counsel should always appear in Civil caseswith Junior Counsel and an instructing Attorney-at-Law in –
(i) The Supreme Court
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(ii) The Court of Appeal
There are several good reasons why leaders must appear withjuniors; but I would focus attention on one of them that transcendsthe interests of the profession. The legal profession is useful. It ismuch more than that. It is necessary. It is essential for themaintenance of the rule of law, and the maintenance of law and order.It is of paramount importance to the organized functioning of society,The community must, therefore, always have competent lawyers. Thetraditional, and it has always been regarded as the best, way ofensuring that succeeding generations of attorneys-at-law willcontinue to adequately serve the interests of the Republic and thecommunity, is to insist that the leaders at the Bar should appear withjuniors. In this connection, I should like to refer to an old case: Cookev. Turner t,ii which was decided on 23rd May, 1844. It is reported in12 Simons 649 and at p. 1282 of Vol. LIX of the English Reportspublished in 1906. In that case, when the question of costs arose, theTaxing Master thought that the case was not of sufficient importanceto employ two counsel to oppose it. The matter came up before theVice-Chancellor. Mr. Bethell opposed the petition. The case isreported as follows:
THE VICE-CHANCELLOR [Sir L. Shadwell]. With respect tothe fees paid to the junior counsel, my opinion is that there hasbeen a miscarriage; and, though the sums are small, yet theprinciple is very important.
I remember perfectly well, many years ago, observing SirAnthony Hart refuse to take a brief merely because there was nojunior with him.
(Mr. Bethell. That is the rule in causes now; no one of ustakes a brief in any case without a junior.]
And I remember that Lord Eldon said in the House of Lords(when there was some objection made to the fact of twocounsel appearing) that it was of extreme importance to the
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public at large that there should be a successive body ofgentlemen brought up, who would understand their professionby knowing it from the beginning; and, in my opinion, it wouldbe most injurious, not merely to the gentlemen who composethe Bar at the particular time, but to the public at large, if thesupply of able men were to be cut off by preventing the youngerbranches from learning their profession. The consequence ofwhich would be that it would be a matter of chance whether,when the gentlemen who are within the bar drop off, their placeswould be supplied by persons of sufficient learning and ability. Ishall, therefore, refer jt back to the Master to review histaxation…
Although it has always been, and is, understandably, arequirement in Sri Lanka that a silk must be assisted by juniorcounsel, the journal entries in this case show that Mr. Senanayakewas not always so assisted. The journal entries also show that whenjunior counsel were supposed to have appeared, they were not thesame persons who had appeared with Mr. Senanayake on otheroccasions. According to the journal in the case, when Mr.Senanayake appeared for the petitioners, there were no juniors withhim on 22nd September, 1982, 6th October, 1982. 15th July, 1983.3rd October, 1983, 2nd December, 1983, 15th February, 1983, andon 22nd November, 1985. However, L. A. Samarasinghe is supposedto have appeared with him on 28th June, 1983. Kitsiri Gunaratne issupposed to have appeared with him on 18th February, 1986.Although the journal records the appearance of Mr. Senanayake withMrs. A. B. Dissanayake on 25th May, 1989, it seems that, since Mrs.Dissanayake successfully moved that the matter be postponedbecause Mr. Senanayake was out of the country, Mr. Senanayake didnot appear, but that Mrs. Dissanayake appeared for the purpose ofobtaining a postponement. Perhaps Garvin, J., in his great wisdomanticipated difficulties of this sort and, therefore, laid it down thatappearances should be recorded by the judge himself and not by hisclerk. (See Tittekeratne v. Keethiratne(l461).
Gianchand, I think, assumed, not only that there were juniorcounsel, but also that they had been retained and instructed. In thecase before us, such an inference would be highly artificial, for, as we
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have seen, Mr. Senanayake had more often than not appeared in thiscase without juniors, and when juniors were present in court, therewas nothing to show that they had been retained and instructed. Mr.Wettasinghe stated that there were no ’particular” junior counsel. Ithink he meant that there were no juniors who had been retained andinstructed. I am reluctant to infer that there would have been juniorcounsel in the case. If they were not retained and instructed,Samarasinghe, Guneratne and Dissanayake were not junior counselin this case, they could not have ’appeared", and they were,therefore, under no obligation to explain their absence in thereinstatement matter.
Is it sufficient compliance with the rule requiring a silk to appearassisted by a junior, for a silk to appear with a junior who has notbeen retained and instructed? This is a question which the BarAssociation might wish to consider.
I am of the view that it was the duty, in terms of the proxy, and theright, in terms of the law and usage, of the registered attorney toretain and instruct counsel since he was not going to exercise hisright to personally appear. The registered attorney failed to do so. Hehas not explained why he did not appoint counsel. If, as Mr.Wettasinghe suggested in his written submissions dated 11thDecember, 1991, the Court of Appeal shared his view that it was theclients’ duty to appoint counsel, then with great respect, l must saythat the court was mistaken. And although Mr. Senanayake was a silk,I cannot in the circumstances of this case infer that there werejuniors.
According to Mr. Wettasinghe, in his written submissions of 11thDecember, 1991, the Court of Appeal had ordered reinstatement,inter alia, because the court was of the view that in the Court ofAppeal, an instructing attorney cannot, “in accordance withprevailing practice be held responsible for keeping a track of thelisting of cases for hearing."
In supporting that view, Mr. Wettasinghe submitted that, although,in the case of courts of first instance, where “instructing attorneys”attend court, and cases are "fixed by date" which are "noted down”,
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“the responsibility can and must be cast and is exclusively cast oninstructing attorneys", yet, in relation to appeals, where in “themajority", instructing attorneys-at-law are from “the outstations", thesituation is different. There, he said, “cases come on the list at theconvenience of counsel who give their free dates, and whose clerksattend the list meetings."
I am of the view that Mr. Wettasinghe misinterpreted the scene.Attorneys practising in, what he chose to describe as, the“outstations", as indeed, I think all over the Republic generally,choose to engage in a mixed practice, functioning both as advocatesand as instructing attorneys. Since they function as counsel, whetheras the registered attorney in a particular case or as counsel retainedby a registered attorney, they attend court and note down the datesfor appearance. It is a question of what they do, rather than in whichcity, town or village they practise that is relevant. There may be moreattorneys in Colombo who choose to practice exclusively as counselthan at any other Bar. But that is another matter.
In arranging its programme of work it is only reasonable, as far asis consistent with the proper disposal of its work, that matters shouldbe fixed for hearing by the court on dates suitable to counsel. I havealready commented on this matter. However, that does not, in myopinion, discharge a registered attorney from his duty of ensuringthat his client's case is heard, either personally through himself, theregistered attorney, or through another attorney. (Cf. Gangabhai v.Ghansambam, Saif Ali v. Chiragh Ali Shah1'0'). If he has, in theexercise of his powers, appointed another attorney to appear, then, Ithink such other attorney should appear at the hearing and conductthe case as counsel. (Cf. section 24 of the Civil Procedure Code; cf.also per Sansoni, J. in Mohideen Ali v. Hassin (supra) at p. 460). Theresponsibility of “keeping track" of the matter is then on the counselretained, since it is the duty of that attorney to appear, and since thedate of hearing would, ordinarily be fixed to suit his convenience. Ifcounsel retained and instructed by the registered attorney fails toappear on the appointed date, it is for counsel, and not the registeredattorney, to explain his absence in seeking reinstatement. Once theregistered attorney has done his duty of appointing counsel, i.e.,retaining and instructing him, counsel assumes full control of the
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case, and becomes as Esher, MR. observed in Mathews v.Munster(UT), followed with approval by Sansoni, J. (as he then was) inMohideen Ali (supra) at p. 461, the "conductor and regulator of thewhole thing”, (Cf. also Rondel v. Worsley (supra) especially at p. 998per Salmon, LJ., and Punchibanda v. E. M. Punchibanda andOthers1™. However, if there are several counsel, and there is no silk,it is the senior of the counsel briefed together, who is in that position,the juniors not being permitted to pursue a different argument fromthat taken by the leader (Pickering v. Dawson <148). If there is nocounsel, the registered attorney is in full control – cf. Fernando v.Singoris Appu<M8), subject to his instructions of Narayan Chetty v.Azeez ,,50,1 Orr v. Gunatilake<l61>. When the registered attorney hasretained and instructed counsel, then he is. generally, (questions ofprior negligence of the instructing attorney and so on apart – e.g. seeCook v. S not liable to his client for the absence, neglect or wantof attention of counsel whom he has appointed (Lowry v. Guilford "M),Halsbury, Vol III para. 12190). That is why in Gianchand (supra)counsel, but not the instructing lawyer, were required to explain theirabsence. It was not, as Mr. Wettasinghe supposed, because“instructing attorneys" had no responsibilities with regard toappearances in all circumstances.
Having said that, I must add this: Counsel accept their briefs onthe understanding that they may be prevented from attending atcourt. If counsel accepts a brief in a cause and receives payment ofhis fees, but does not attend court, no action can be brought againsthim to recover either the fees or damages for non-attendance:(Robertson v. Macdonough Mulligan v. M'Donagh l1M Halsbury,Vol. Ill para 1194). However, counsel who has been retained andinstructed is under an obligation to show sufficient cause for hisabsence if the reinstatement of a matter is sought. If, counsel isunable to appear, he should return the brief and inform the registeredattorney of that fact, giving sufficient time for the registered attorneyto engage another counsel who could in that time master the brief.(Cf. Halsbury, Vol. Ill para. 1138).
If, as in this case, the registered attorney had not retained andinstructed another attorney as counsel, then it was the duty of the
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registered attorney to keep a track of the dates fixed, for then it washe, and he alone who was entitled in terms of the law, and obliged interms of the proxy, to appear and conduct the case. (Cf. per SansoniJ. in Syadu Varusai's case (supra) at p. 92).
In the light of what I have said, the problem of appeals from whatMr. Wettasinghe referred to as “outstations" should cause no difficultyto registered attorneys who retain counsel but do not themselvespractice in Colombo, for it is counsel's duty to keep a track of datesand appear. However, out of an abundance of caution, perhaps,following the example of solicitors in England, practising in thecountry, who do work in London, should an outstation attorneyemploy a metropolitan attorney as his agent when a matter ispending before the Court of Appeal (which ordinarily holds its sittingsin Colombo – see Article 146(1) of the Constitution); or the SupremeCourt (which ordinarily holds its sittings in Colombo – see Article 132of the Constitution)? In this connection it is of interest to note that Rule6 of the High Court (Admiralty) Jurisdiction Rules 1991, published inGazette Extraordinary No. 672/7 of 24th July 1991, provides asfollows:
The writ of summons shall be indorsed with the name andaddress of the plaintiff, and with an address to be called anaddress for service, not more than five kilometres from theregistry, at which it shall be sufficient to leave all documentsrequired to be served upon him.
The address for service of the registered attorney, Mr. Mathew,given in the proxy dated 16th September, 1982, and filed in the Courtof Appeal was a metropolitan one, viz. 58/2 Ward Place, Colombo 7.Even assuming, as Mr. Wettasinghe suggests, that this was theaddress, not of Mr. Saliya Mathew, but rather of counsel, Mr.Senanayake, Mr. Mathew appears to be an attorney-at-law practisingin Colombo, and therefore, a gentleman who should have had nodifficulty in attending the Court of Appeal. After emerging from thedebris of the “collapsed" chambers of Mr. Senanayake. Mr. Mathew, itseems, continued to function in Colombo. The proxy given to him bythe respondents on 5th June, 1991 for the purposes before us in the
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Supreme Court, long after Mr. Senanayake’s death and the alleged“collapse" of his chambers, gives 116/10, Rosmead Place, Colombo7, as the address for service.
Mr. Wettasinghe in his written submissions to this Court, dated11th December, 1991, offered the following explanation:
[The] Registered Attorney’s conduct in this case should alsobe viewed in the context of Senior Counsel to whose chambershe was attached. The instructing attorney’s address given in theproxy is the address of senior counsel's chambers. This is not acase where the client came to the instructing attorney and theinstructing attorney in turn retained Senior counsel. Althoughthere is no affidavit evidence about the collapse of thechambers immediately following Mr. Senanayake’s death, itwould not be unreasonable for Court to draw an inference as tothe extent of confusion that would have followed the death of aSenior Counsel as busy as Mr. Senanayake."
Although the petition praying for the writ of certiorari dated 16thSeptember, 1982, was filled by the petitioners appearing by their dulyregistered attorney, Mr. Saliya Mathew, and all steps in the Court ofAppeal, and in this Court (under the authority of another proxyexecuted by the petitioners in favour of Mr. Saliya Mathew on 16thJune, 1991 authorizing him to act on their behalf in the SupremeCourt) had been taken by Mr. Mathew, the petitioners made noreference to him in their application for relisting, or in the appeal tothe Supreme Court or in any of their affidavits. In paragraph 2 of theirpetition to the Court of Appeal for reinstatement dated 19thSeptember, 1989, the petitioners stated that they retained theservices of Mr. Nimal Senanayake and “paid his fees in full.”
Is it proper for counsel to have chambers in the office of aninstructing attorney or to share chambers with an instructingattorney? can attorneys who choose to work exclusively as counselpractise in partnership or even in an arrangement resembling apartnership? (See Halsbury Vol. Ill para 1117). It is a long establishedpractice in this country that a private residence may be used by aparticular attorney who has chosen to work exclusively as counsel for
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his professional work, and that juniors may regularly work there as"devils"; but could the private residence of an attorney, or a part of it,constitute chambers, in the sense of an office in which severalattorneys practise? (Cf. Halsbury Vol. Ill para. 1119). Is it proper forcounsel to nominate a registered attorney, so as to enable counsel toappear in terms of section 24 read with section 5 of the CivilProcedure Code? What are the implications, in the light of the wideauthority given to the fegistered attorney in terms of the prescribedform of proxy in the Civil Procedure Code with regard to the right toappoint and change attorneys and counsel? If counsel may nominatehis registered attorney to regularize matters, is it proper for counsel tonominate an attorney from his own chambers as a registeredattorney? These, and others I have referred to elsewhere in myjudgment, are issues of greater consequence than would seemapparent from the facts of this case from which they have emerged.They are matters, in the words of Lord Morris of Borth-Y-Gest inRondel v. Worsley <IT,1 that ought to be "decided without regard to themerits or demerits or the tensions of any particular case". ThePresident of the Bar Association of Sri Lanka, Mr. Ranjith Abeysuriya,PC., happened to be in court in connection with some other matter,when this case was being argued, and I availed myself of theopportunity to draw his attention to the need for the Association toconsider and resolve, as soon as possible, these and other matters ofimportance to practitioners that were being directly or indirectlyraised in the case before us.
Finally, both Mr. Witanachchi and Wettasinghe submitted that thequestion of reinstatement was a mater of discretion. I agree. I alsoagree with Mr. Wettasinghe that, in matters of this sort, the exercise ofdiscretion by a lower court should not be interfered with, unless thedecision was capricious or made in disregard of legal principles.{See Shamdasani and Others v. Central Bank of India <3 Sohambaland Another v. Devchand<4S)). As I have said before, the reasons forthe decision of the Court of Appeal, are far from clear. I
I have assumed, as Mr. Wettasinghe suggested, that all thematters "itemized" by the Court of Appeal “entered into the mind ofthe learned judge" who decided this matter. If they were the mattersthat did enter into his Lordship's mind in ordering reinstatement, then,
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for the reason I have explained, the Court of Appeal, with greatrespect, was in error in ordering reinstatement in its judgment dated28th September, 1990.
Therefore, I allow the appeal and make order setting aside theorder of the Court of Appeal dated 28th September 1990 and affirmthe decision of the Court of Appeal dated 16th May, 1989. I furthermake order that the respondents shall pay costs fixed at Rs. 10,500.
BANDARANAYAKE, J. -1 agree.
DHEERARATNE, J. -1 agree.
Appeal allowed.