002-SLLR-SLLR-2004-V-3-MANATUNGA-v.-AMARASINGHE.pdf
Manatunga v. Amarasinghe
(Somawansa, J.)
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CA
MANATUNGAv
AMARASINGHECOURT OF APPEALSOMAWANSA, J. ANDEKANAYAKE, J.
CA 83/2004.
DC KURUNEGALA 6709/M.JULY 16, 2004.
Judicature Act, — Section 46 (1) — Transfer of a case — Fair and Impartialtrial cannot be held? — Members of the Bar refusing to appear — Proof? —Civil Procedure Code section 87 (3).
The petitioner is seeking to get the inquiry under section 87 (3) transferredfrom the Kurunegala District Court to the District Court of Colombo.
The petitioner contends that the members of the Kurunegala Bar are refusingto appear for her as her earlier attorney-at-law who had admitted that he hasmade a mistake in informing the petitioner a wrong date as the trial date is amember of the Kurunegala Bar and contends that the members of theKurunegala Bar had refused to appear for her in the case.
Held:
Except for a mere statement that the members of the KurunegalaBar are refusing to appear for her the plaintiff – petitioner has notmentioned the name of a single attorney-at-law who refused toappear on her behalf.
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The plaintiff petitioner is not without remedy for if no attorney-at-lawfrom the particular Bar would appear for her she could still get theservices of an attorney-at-law from an outside Bar even if suchendeavour turns out to be costly for it is she who had instituted theinstant action seeking certain reliefs.
In making an order under section 46 one must also keep in mind thehardships if any the respondent would have to face if the applicationis allowed. If the application is allowed then the defendant -respondent too would have to incur heavy costs for travelling and
. for retaining counsel from Colombo.
APPLICATION under section 46 of the Judicature Act-.
D. K. Dhanapala with K. S. Kulatunga for petitioner.
S. Mahawanniarachchi for respondent.
Cur.adv.vu!t.
July 30, 2004.
ANDREW SOMAWANSA, J.In this application the plaintiff-petitioner is seeking the transfer ofcase No. 6709/M of the District Court of Kurunegala to the District. Court of Colombo in terms of section 46 of the Judicature Act asamended. The basis of this application appears to be that noAttorney-at-Law from the Kurunegala bar is willing to appear for herand that she would not have the benefit of a fair and impartial trial.The defendant-respondent has filed objections to this application.When this matter was taken up for inquiry both parties agreed toresolve the matter by way of written submissions. Accordingly bothparties have tendered their written submissions.
It is common ground that the trial in the instant case was fixedfor 25.03.2002 on which date the Attorney-at-Law for the plaintiff-petitioner moved for a postponement of the trial.. A postponementwas granted subject to the plaintiff-petitioner paying costs fixed atRs. 1000/- and the trial was re-fixed for 11.06.2002.
The position of the plaintiff-petitioner is that on 10.06.2002 shewent to see her Attorney-at-Law Mr. D.M.D. Dissanayake to givehim instructions but was asked by Mr. Dissanayake to come on thefollowing day. When she went to Mr. Dissanayake’s office on the
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Manatunga v. Amarasinghe
(Somawansa, J.)
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following day the office was closed and there was a notice to saythe trial in the instant action would be taken up on 11.07.2002 andwith instructions for her to be present in Court on 11.07.2002.Subsequently she had come to know that her case had beep calledon 11.06.2002 and as she was absent and unrepresented the casehad been dismissed. When she brought this to the notice of. herAttorney-at-Law Mr. Dissanayake he had filed an affidavit dated
and on 25!Q6.2002 the said Attorney-at-Law Mr.Dissanayake had revoked his proxy. Thereafter the plaintiff-petitioner filed a new proxy of Mr. W. F. B. Fernando, Attorney-at-Law on 02.07.2002 and the said Attorney-at-Law filed papers tohave the order made on 11.06.2002 vacated and to have the caserestored to the trial roll. The inquiry into this application was fixedfor 09.12.2002 and Mr. W. F. B. Fernando, Attorney-at-Law alsohanded over to plaintiff-petitioner revocation papers dated
to revoke his proxy which she filed in Courtsubsequently. Thereafter she had made a complaint to HisLordship the Chief Justice and to the President of the BarAssociation, informing them of the incident that had taken placeand her inability to retain an Attorney-at-Law from the Kurunegalabar. Copies of these complaints were also filed of record and alsoa motion was filed in Court on 06.10.2003 seeking a postponementof the inquiry in order to retain an Attorney-at-Law.
Counsel for the plaintiff-petitioner submits that all the Attorneys-at-Law practicing in Kurunegala bar have refused to appear on herbehalf to rectify the error made by Mr. Dissanayake, Attorney-at-Law as he is a fellow member of the said bar. That under thesecircumstances no lawyer from Kurunegala or Kuliyapitiya barswould appear on her behalf and the plaintiff-petitioner’s attempts toretain an Attorney-at-Law from outside also failed due to heavy feesrequired by them. He also submits that she cannot afford suchpayment of fees to a registered Attorney-at-Law and a counselbrought in from another bar to appear on her behalf in the DistrictCourt of Kurunegala and that she feels justice will not be meted outto her if the case is heard in Kurunegala.
On the face of the averments in the petition there does not seemto be any reason for any Attorney-at-Law to refuse or refrain fromappearing on behalf of the plaintiff-petitioner, in an inquiry under
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section 87(3) of the Civil Procedure Code and if as alleged by theplaintiff-petitioner her Attorney-at-Law had taken down the trial dateincorrectly there is no reason for the same Attorney-at-Law or for eoany other Attorney-at-Law to refuse to appear on her behalf and totake steps to have the dismissal set aside. For in terms of section87(3) of the Civil Procedure Code an order dismissing an action forfailure of plaintiff to appear on the trial date may be vacated on anapplication made within a reasonable time and good cause shownfor default of appearance. In the circumstances except for the twocomplaints made to His Lordship the Chief Justice and thePresident of the Bar Association which are her own doing, theredoes not appear to be any other reason as to why an Attorney-at-Law from the Kurunegala bar would refuse or refrain from 70appearing for the plaintiff-petitioner. In fact Mr. D.M.D.B.Dissanayake has admitted that the mistake was on his part ininforming the plaintiff-petitioner a wrong date as the trial date andhas given an affidavit to this effect which had been tendered toCourt, Paragraphs 2, 3 and 4 of his affidavit reads of follows:
might also say that except for a mere statement that the 90members of the Kurunegala bar are refusing to appear for her theplaintiff-petitioner has not mentioned the name of a single attorney-at-law who refused to appear on her behalf after Mr. W. F.B.Fernando revoked his proxy.
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Manatunga v. Amarasinghe
(Somawansa. J.)
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He submits that the very unusual payment of Rs. 1000/- in theabsence of the petitioner amounts to suspicion. As the plaintiff-petitioner was absent on 11.06.2002 who had paid the said sum ofRs. 1000/- to the defendant-respondent is not clear. Be that as itmay, the plaintiff-petitioner admits that she was absent on that dayand there being no application for a postponement the learned 110District Judge has correctly acted in terms of section 87(1) of theCivil Procedure Code in dismissing the plaintiff-petitioner’s action.
The learned District Judge cannot be faulted for dismissing theaction and no. suspicion can be attached to the order of the learnedDistrict Judge.
Section 46 of the Judicature Act in terms of which thisapplication is made reads as follows:
46 (1)' “Whenever it appears to the Court of Appeal –
that a fair and impartial trial cannot be had in any particular
court or place; or120
that some questions of law of unusual difficulties are likely toarise; or
that a view of the place in or near which any offence isalleged to have been committed may be required for the
■. satisfactory inquiry into or trial of the same; or
that it is so expedient on any other ground,
the court may order upon such terms as to the payment of costsor otherwise as the said court thinks fit, for the transfer of any
Counsel for the plaintiff-petitioner also refers, to journal entry(02) dated 11.06.2002 which reads as follows:
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action, prosecution, proceeding or matter pending before anycourt to any other court and accordingly in every such case, the 130court to which any such action, prosecution, proceeding ormatter is so transferred shall, notwithstanding anything to thecontrary in this or any other law, take cognizance of and havethe power and jurisdiction to hear, try and determine suchaction, prosecution, proceeding or matter, as fully and effectuallyto all intents and purposes as if such court had an original powerand jurisdiction.”
The grievance of the plaintiff-petitioner appear to be that in theinstant action filed by her a fair and impartial trial cannot be had inthe District Court of Kurunegala. However reasons given by the 140plaintiff-petitioner in this respect I should say, do not warrant or areinsufficient to arrive at such a conclusion. Hence I am unable to findany justifiable or valid reason as to why this Court should act interms of the said section 46 of the Judicature Act.
In making an order under section 46 of the Judicature Act onemust also keep in mind the hardship if any the respondent wouldhave to face. In the instant application the plaintiff-petitioner isseeking a transfer of an action instituted in the District Court ofKurunegala to the District Court of Colombo. As submitted bycounsel for the defendant-respondent if this application is allowed 150the defendant-respondent too would have to incur heavy costs fortravelling and for retaining counsel from Colombo.
i might also say that even if this application is not granted theplaintiff-petitioner is not without remedy for if no Attorney-at-Lawfrom the Kurunegala bar would appear for her she could still get theservices of an Attorney-at-Law from an outside bar, even if such anendeavour turns out to be costly. For it is she who had instituted theinstant action seeking certain reliefs.
For the above reasons, I see no merit in the plaintiff-petitioner’sapplication and the same has to fail. Accordingly I dismiss the 160plaintiff-petitioner’s application with costs fixed at Rs. 2500/=.
EKANAYAKE, J. – I agree.
Application dismissed.