* (1935) 36 If. L. R. 413.
KEUNEMAN J.—Muttucarpen Chettiar v. Mohamed Salim.
The WQrds of the Ordinance are clear and effect must be given to themas held in In re Prince Blucher, ex parte The Debtor v. Official Receiver *.See also Hyde v. Another.Acts which could be done by an agent arestated in Article 6 of Boustead on Agency (8th ed.), p. 9.
Under rule 5a of the Appellate Procedure (Privy Council) Order, 1921,notice cannot be served on the attorney, then it follows that it cannot beserved on the Proctor appointed by the attorney. Tarrant & Co. v.Ibrahim Lebbe Marikkar3 and Weerakoon Appuhamy v. Wijesinghe ‘were cited.
M. S. A. Marikar, for second to seventh respondents, adopted thearguments of the'Counsel for first respondent.
Hr V. Perera, K.C., in reply.—A party can appear in person, but anattorney cannot. Further, when all the necessary steps have been taken,then, if the rules of Court require only a solicitor to appear, a personhaving authority can do everything to appoint a solicitor in order toexercise the power given to him. It is not a limitation by the generallaw, but it is a rule of Court showing how a thing could be done. See26 Halsbury (1st ed.) Art. 1203, p. 730 and Boustead on Agency, Art. 6,Ittus. 7.
Cur. adv. vult.
December 14, 1938. Keuneman J.—
This matter came before us as a Divisional Court upon a reference byPoyser S.P.J. and Wijeyewardene J. The facts are as follows: —
The judgment of the Supreme Court was delivered on June 28, 1938.Under rule 5 of the Appellate Procedure (Privy Council) Order, 1921,application was made for a notice to be served on the respondents of thepetitioner’s intended application to appeal to the Privy Council. Thiswas accompanied by a proxy dated June 29, 1938, in favour of ProctorSomasunderam by the person holding the petitioner’s power of attorneyfor the purpose. This was filed under rule 6.
Both the application and the proxy were received in the Supreme CourtRegistry on July 1, 1938.
On July 4, 1938, the application was allowed, but on notice issuing, theFiscal reported that the respondents were evading service. A furtherapplication was then made to the Supreme Court for substituted serviceon the respondents under rule 5 (a). This was allowed and substitutedservice was effected on July 9, 1938.
In addition notices were posted to the respondents on July 2, 1938.These notices were signed by Proctor Somasunderam.
It is not contended that these steps are out of time, but Counsel for therespondents argued that the proxy filed was bad under the rules, as itwas signed by the plaintiff’s attorney, and not by the plaintiff himself.
In the case of A.nnamalay Chetty v. Thornhill * a Bench of two Judgesheld that where an application for conditional leave to appeal to thePrivy Council was .made by a duly authorized attorney of the -applicantthrough a Proctor to whom the attorney had granted a proxy for thepurpose, that the application was not regularly made.
» (2930) 14* L. T. 152.3 (2934) 24 Ceylon Law Rec. At.
* (2836) 2 Bing. N. S. 776.« (2929) 30 N. L. R. 256.
* 36 N. L. R. 413.
KEUNEMAN J.—Muttucarpen Chettiar v. Mohamad Salim.
Poyser S.P.J. and Wijeyewardene J. had doubts'as to the correctnessof this decision and have referred the matter to us for determination.
Counsel on both sides agreed before us that the matter is not governedby the sections of the Civil Procedure Code, notably sections 24, 25, 26,and 27. There is also a finding to this effect in the case of Fradd v.Fernando *, where the effect of these sections was restricted to actions inthe District Court and appeals to the Supreme Court. Our decision onthis matter must depend upon our interpretation of the rules containedin the Appellate Procedure (Privy Council) Order, 1921, only.
The rule that is relevant in this case is rule 6, the material portion ofwhich is as follows: —
“ A party to an application under the Ordinance, ’ whether applicantor respondent, shall unless he appears in person, file in the Registry adocument in writing appointing a Proctor of the Supreme Court to actfor him in connection therewith ”.
Under rules 5 and 5 (a) it has been held that notice of an application forconditional leave to appeal to the Privy Council must be served on theparty personally or on his Proctor empowered to accept service, and thatservice on a person holding a power of attorney from a party is insufficient,,see Fradd v. Fernando (supra). The correctness of this decision has notbeen disputed before us. It was argued that the present case is theconverse of that decision, and that was the view taken by the Judges inAnnamalay Chetty v. Thornhill (supra). I think however that the langu-age of these rules is not similar to that of rule 6. Rule 5 states that thenotice may be served on the party or his Proctor, and rule 5 (a) states thatwhere service of the notice cannot be duly effected upon a party personallyor upon his Proctor empowered to accept service thereof, it shall becompetent to the Court to prescribe any other mode of service. In Fraddv. Fernando (supra) emphasis was laid on the word “ personally ”, and itwas held that the most natural meaning to be given to that word wasthat “ it refers to the party himself and not to any representative of hishowever fully equipped with a power of attorney ”.
If we examine the language of rule 6 it certainly does appear that in theabsence of the “ document in writing appointing a proctor ” filed in theRegistry, the party.must appear “in person”. If we apply.the decisionin Fradd v. Fernando (supra), the appearance in Court will be recognized,only of the party himself or of his Proctor authorized thereto, and not of aperson holding the party’s power of attorney. Does rule 6 go furtherand require that the proxy to the Proctor should be given by the party'himself and not by his attorney? I am of opinion that the language ofrule 6 does not warrant such an interpretation. The party to the appli-cation, unless he appears in person, must file “ a document in writingappointing a Proctor ”. Counsel, for the respondent argued that thismeans “ a document in writing in which he appoints a Proctor ” and thaton this construction the party alone and not his attorney can give theproxy. I do not think that these words can be read into the rule. Ithink the words in the rule imply nothing more than “ a document which.
136 N. L. B. 132.
KEUNEMAN J.—Muttucarpen Chettiar v. Mohamed Salim.
appoints a Proctor ”—a loose but sufficiently precise phrase. It is ofsignificance that the rule nowhere states that the document must be1signed by the party himself, and in the absence of such words to thateffect I do not feel compelled to place any restriction on the right whicha party would have under the common law to do any act through hislawfully appointed attorney.
It has been argued that it is anomalous that the party’s attorneyshould not be allowed to enter appearance in these proceedings, butshould be permitted to appoint a proctor to^ enter appearance. I do nothowever think such a position is unreasonable, and in any event I am ofopinion that the interpretation of rule 6 leads to that result.
In the case of Annamalay Chetty v. Thornhill (supra), stress was laid onthe wording of rules 5 and 5 (a). With deference, I do not agree that thelanguage of those rules is of assistance in the interpretation of rule 6which deals, with a different situation. I may add in passing that thewords in rule 6 “ unless he appears in person ” as far' as I can discover,were not inserted as an amendment, but appeared in the Original' Order.
Counsel for the respondent referred us to the case of In re Prince Blucher,ex parte The Debtor v. Official Receiver '. Here the interpretation of thewords “ signed by him ” appearing in section 16 of the Bankruptcy Act,1914, was in question. In this connection Lord Hanworth M. R. said,“ We have to consider the explicit and very simple terms of the Statute.The words in the statute are ‘ signed by him ’. Where a statute intendsthat the authorization may be by a person on behalf of a debtor theLegislature knows how to provide it ”. It. was held that only a proposalin -writing signed by the party was in contemplation, and not a writingsigned by a lawfully authorized agent. Reference was also made toHyde v. Johnson I do not think that these decisions are of assistance inthis case. I may however refer to the comment made in this connectionby Boustead (Agency, 8th ed., p. 12). “ As a general rule where thesignature of a person is required by statute, it is sufficient if the name ofthat person is signed by a duly authorized agent, unless a contraryintention plainly appears ”.
In this case I have already pointed out that no such words as “ signedby him ” are to be found in rule 6 in connection with “ the document inwriting” appointing the proctor, and I do not think we are entitled toread in such words.i
I am of opinion that conditional leave to appeal should be allowedsubject -to the usual terms and conditions. The petitioner is entitled tothe costs of the argument of this matter.
Moseley J.—I agree.de Kretser J.—I agree. i
Application allowed.
= 2 Bing. N. G. 776.
i 144 L. T. 152.