A.LLES, J.—Gianchand v. Hyder Ali
Present: Alies, J., and Weeramantry, J.
K.GIANCHA-ND, Appellant, and T. M. N. HYDER ALI and 3 others.
S. G. 200 (F)/67—D. C. Colombo 6167GjM
Appeal—Ex parte 1 earing owing to absence of respondents' Counsrl—Applicationmade then after by respondents for re-listing the appeal—Ctcil Procedure Code,s. Ill—“ Sufficient cause ".
(queen’s Counsol and Junior Counsel had been retained to appear for thoplaintiffs-respondents. When tho appeal was heard on G:h Juno 1970 therewas no appearance for tho respondents and, after tho argument of Counselfor tho defendant-appellant was heard and judgment was reserved, order wasmade on lGth July 1970 allowing the appeal of tho appellant-. Subsequentlytho present application was made by tho plaintiffs-respondents under section771 of tho Civil Procedure Code for ro-listing tho appeal.
Held that the application could not bo granted unless satisfactoryexplanations wore given not only by the Queen's Counsel but also by thoJunior Counsel for tfioir failuro to bo present in Court when tho appeal washeard.
This was an application made by the plaintiffs-respondentsunder Section 771 of the Civil Procedure Code for re-listing the presentappeal from a judgment of the District Court, Colombo.
Izadeen Mohamed, Q-G., with S. C. Crossclte-Thambiah, for thodefendant-appellant.
H. ]V. Jayewardene, Q.C., with It. Manikkavasagar, for tho plaintiffs-respondents.
Cur. adv. vv.lt.
July 1,1971. Aixes, J.—
Thi3 is an application to have the judgment and decree of this Courtdelivered on 16th July 1970 vacated and the appeal re-listed for argument.The appeal was argued before my brother Weeramantry, J. and myselfon Gth June 1970. Counsel appeared for the defendant-appellant butthere was no appearance for the plaintiffs-respondents. After hearingthe argument of Counsel for the appellants, we reserved our order andthe Court, in a considered judgment, made order on lGth July 1970allowing the appeal and dismissing the plaintiffs-respondcr*-* action withcosts.
The plaintiffs-respondents have now partially explained mo circum-stances in which they were not represented at the hearing of the appealand an affidavit from learned Queen’s Counsel—not Queen’s Counsel
ALT.F.S, J.—Giancliand v. Hyder Ali
who appeared in support of the application—lias been submitted forour consideration. According to Counsel’s affidavit, he had been retainedto appear for the plaintiffs-respondents in July 19GS, but his Clerk hadinadvertently failed to notify the Registrar of the Court of this fact.This ease was listed for hearing on 6th June 1970, which was not oneof the free dates of learned Queen’s Counsel and consequently ho wasnot present in Court on that date. It was only on 17th July 1970that learned Queen’s Counsel became aware that the appeal had beenheard and that this Court had delivered judgment dismissing his client’saction. We accept, without reservation, the averments containedin Counsel’s affidavit explaining his inability to be present inCourt on Gth June 1970. If the matter stood there, we might havebeen disposed to have the case listed anew’ for argument, particularlyas Counsel for the appellant, who was the successful part}' at the appealhad no objections to the appeal being re-argued. There is howeverno explanation before this 'Court why Junior Counsel, who must havebeen retained to assist learned Queen’s Counsel, failed to be present inCourt on Gth June 1970. If we were to permit this application, inthe absence of such an explanation, we -would create an unhealthyprecedent. It is also pertinent to take note of the fact that it was.publicly announced at the conclusion of the argument, that judgment ,had been reserved. Had the plaintiffs-respondents’ legal advisersbeen alert, they would have been aware that the appeal had been listed,heard and that judgment had been reserved soon after Gth June 1970.It was only on 17th July 1970 when learned Queen’s Counsel broughtthe lapse to the notice of this Court, that steps were taken to re-list theappeal for argument.
This is not a case in which the client’s legal advisers had mistaken adate—an explanation which may amount to “ sufficient cause ” underSection 771 of the Civil Procedure Code but a case where Junior Counselhas not placed any explanation before Court for his failure to be presentin Court on the relevant date. In Kalaucme Dhamwadassi Thero v.Mawella Dhammavisvddhi Tkeio 1 57 N. L. R. 400, an application for there-listing of an appeal, which had already been disposed of, was allowedb}' the same Pencil that heard the appeal. The Court held that thepetitioner had satisfactorily explained that he was prevented by“ sufficient cause ” from appearing either personally or by Counsel, at thehearing of the appeal. In that case the petitioner had provided thefees for retaining Counsel to his Proctor. His Proctor however mis-appropriated the fees and consequently no Counsel 'was retained andunderstandably, no Counsel appeared for the petitioners on tlie datewhen tiie appeal was argued. In the instant case, the facts are quitedifferent. Thero is no explanation before this Court why Counsel whohad been retained as Junior to Queen’s Counsel failed to appear on thndue date. Consequently we hold that the plaintiffs-respondents have
1 (1955) 57 N. L. R. 4C0. .
Percra v. PremawQthic
not satisfactorily explained to the Court why Counsel, who would havobeen retained as Junior to Queen’s Counsel, was not present in Court onGth June 1970and we are, therefore, constrained to refuse this application.Since Counsel for the appellant was agreeable to the application beingallowed, we make no order as to the costs of tin's application.
Weeramantry, J.—1 agree.
K. GIANCHAND, Appellant, and T. M. N. HYDER ALI and 3 others, Respondents