045-SLLR-SLLR-2002-3-NATIONAL-INSURANCE-CORPORATION-LTD.-v.-VIOLET.pdf
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National Insurance Corporation Ltd. v. Violet
337
NATIONAL INSURANCE CORPORATION LTD.
v.
VIOLET
COURT OF APPEALDISSANAYAKE, J. ANDSOMAWANSA, J.
CA NO. 691/97 (F)
DC COLOMBO NO. 96421/MJANUARY 29, ANDMAY 04, 1999 ANDSEPTEMBER 27, 2001
Civil Procedure Code, sections 27 (2), 754 (1) and 754 (2) – Who could lodgean appeal – Locus standi – Petition of appeal not signed by attorney on record- Duty of appellant to support his application and obtain permission torevoke proxy and file new proxy.
The substituted plaintiff-respondent's husband instituted action against twodefendants, who are not parties to the appeal, claiming damages, caused as aresult of a road accident. Ex parte judgment was entered, a writ of executionwas sought against the party noticed – the National Insurance Corporation, theappellant, which was granted by court.
The National Insurance Corporation appealed against this order. The trial courtholding that it was an appealable order directed the case record to be forwardedto the Court of Appeal.
The substituted plaintiff contended that, the appellant has no locus standi, thepetition of appeal has not been signed by the attorney on record and the orderappealed against is not a final order.
Held:
The appellant was never a party to the District Court case and thereforecould not invoke the provisions of section 754 of the Civil Procedure Code.
Further, to invoke the provisions of section 754 (2) one must first obtainleave of the Court of Appeal, which the appellant in the instant case hasfailed to do.
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It is a recognised principle that any application to court must be supportedand that mere filing of papers alone would not be sufficient. The positionthat where necessary papers are submitted to court it is the duty of courtto make relevant formal entries is untenable and unsound.
It is the duty of the party to support his application and obtain permissionto revoke the former proxy and file a new proxy which the appellant hasfailed to do.
When there is an attomey-at-law on record it is such attorney-at-law whocould lodge an appeal.
APPEAL from the judgment of the District Court of Colombo.
Case referred to:
1. Seelawathie and Others v. Jayasinghe – (1985) 2 Sri LR 266.
Murdu Fernando, Senior State Counsel, with M. R. Ameen, State Counsel, for
appellant.
Manohara R. de Silva for respondent.
Cur. adv. vult.
December 03, 2001
SOMAWANSA, J.
The substituted plaintiff-respondent's husband (now deceased) filed 01case No. 96421/M in the District Court of Colombo ' against twodefendants who are not parties to this appeal, claiming damages ina sum of Rs. 150,000 caused as a result of a road accident.
On 01. 06. 1988 an ex parte judgment was entered against thedefendants but of consent was set aside. Thereafter, on 01. 06. 1992after a fresh ex parte trial, judgment was once again entered againstthe defendants. However, the defendants did not take any steps tovacate this ex parte judgment. It appears that thereafter by way of
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National Insurance Corporation Ltd. v. Violet (Somawansa, J.)339
a motion dated 07. 03.1995 a writ of execution was sought not against iothe two defendants but against the party noticed appellant, the NationalInsurance Corporation, hereinafter referred to as the appellant. Theappellant filed objections and after an inquiry the learned AdditionalDistrict Judge by her order dated 06. 01. 1997 rejected the objectionsof the appellant and held in favour of the plaintiff-respondent hereinafterreferred to as the respondent. On 07. 03. 1997 appellant filed papersto appeal against this order of the District Court to which the substituted-palintiff-respondent objected to, on the ground that there was noappealable order. However, the learned District Judge by her orderdated 25. 11. 1997 held that it was an appealable order having the »>effect of a final judgment and directed the case record to be forwardedto the Court of Appeal.
Thereafter, the substituted-plaintiff-respondent by way of a motiondated 06. 03. 1998 raised 3 preliminary objections and moved tohave the appeal dismissed. In this regard oral submissions as wellas written submissions have been tendered by both parties.
The preliminary objections raised by the learned counsel for thesubstituted-plaintiff-respondents are as follows:
the appellant has no locus standi to make his appeal.
In any event the appeal is defective as the petition of appeal 30has not been signed by the attorney on record.
the order appealed against is not a final order and thereforethere is no direct right of appeal against the order challenged.
With regard to the 1st ground of objection it is submitted by thelearned counsel for the appellant that as the appeal filed by theappellant is a final appeal, and that as the appellant, the NationalInsurance Corporation is not a party to the District Court, Colombocase No. 96421/M, the appellant could not prefer an appeal against
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a judgment or any order made in the said District Court case withoutthe leave of the Court of Appeal first had and obtained.40
I find that in the oral submissions as well as in the written submissionstendered on behalf of the appellant, it is admitted that the appellantis not a party to the District Court case No. 96421/M. On page 5paragraph 5 of the appellant's written submissions it is stated "thatthe appellant was not the judgment debtor in this case. He was onlyan insurer. However, the respondent has thought it fit to bring theappellant into the shoes of the judgment debtor".
In the light of the above admission one could safely arrive at theconclusion that the petitioner was never a party to the District Courtcase and therefore the next question that has to be considered is sowhether the appellant who is not a party to the District Court caseNo. 96421/M could invoke the provisions of section 754 of the CivilProcedure Code.
Section 754 of the Civil Procedure Code deals with the mode ofpreferring an appeal:
Section 754 (1) – Any person who shall be dissatisfied with anyjudgment pronounced by any original court in any civil action,proceeding or matter to which he is a party may prefer anappeal to the Court of Appeal against such judgment for any 60error in fact or in law.
Section 754 (2) – Any person who shall be dissatisfied with anyorder made by any. original court in the course of a civilaction, proceeding or matter to which he is or seeks to bea party may prefer an appeal to the Court of Appeal againstsuch order for the correction of any error in fact or in lawwith the leave of the Court of Appeal first had and obtained.
. It is clear from the wording of the section to invoke the provisionsof sectiion 754 (1) of the Civil Procedure Code in preferring an appeal,
National Insurance Corporation Ltd, v. Violet (Somawansa, J.)341
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one has to be a party to the action. The appellant not being a party 70to this action therefore cannot invoke the provisions of section 754(1). It is also clear from the wording of the section that to invokethe provisions of section 754 (2) of the Civil Procedure Code onemust first obtain leave of the Court of Appeal, which the appellantin the instant case has failed to do.
In the light of the above reasoning, I am inclined to accept thecontention of the counsel for the added plaintif-respondent that theappellant has no locus standi to make this appeal under section 754(1) as he is not a party to the District Court case No. 96421/M andeven under section 754 (2) as he has failed to obtain leave of this socourt. It may be stated that in the submissions made on behalf ofthe appellant, merits of the case were discussed at length but failedto meet the legal objections of locus standi raised by the addedplaintiff-respondent. On this objection alone the appeal has to berejected.
As regards the second objection raised by the added plaintiff-respondent that the appeal is defective as the petition of appeal hasnot been signed by the attorney on record it appears from thedocuments filed by the appellant that on 09. 06. 1995 the appellantfiled proxy of Mr. Milinda Pathirana, attorney-at-law. The said proxy »is annexed marked ‘A’. Thereafter, on 19. 07. 1996 the said proxyof Milinda Pathirana was revoked and new proxy of P. Abeysekaraand Shyamalie Rajapakse, attorneys-at-law, was filed of record to-gether with the formal revocation papers. The new proxy of P.Abeysekara and Shyamalie Rajapakse is annexed marked ‘B’ andformal revocation papers as ‘C’. The consent of former proxy holderto revoke his proxy as ‘D’. A letter from the attorney-at-law who waspresent in court to look after the interest of the appellant on19. 07. 1995 as ‘F and journal entries of case No. 96421/M as ‘G
In the journal entries marked ‘G’ journal entry 56 dated 19. 07. 1996 100it is stated that party noticed, the National Insurance Corporation filesrevocation papers together with new proxy of P. Abeysekara and S.Rajapakse. Written submissions for 15. 08. 1996. It is a recognized
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principle that any application to court must be supported and thatfiling of papers alone would not be sufficient. Therefore, the argumentput forward by the attorney-at-law for appellant that where necessarypapers are submitted to court it is the duty of the court to make therelevant formal entries are untenable and unsound. It is the duty ofthe appellant to support his application and obtain permission to revokethe former proxy and file new proxy which the appellant has failed noto do. Therefore, in view of provision contained in section 27 (2) ofthe Civil Procedure Code, in the absence of such leave from court,the proxy of Milinda Pathirana continues to be in force. It is admittedby appellant in his written submissions that the petition of appeal wasfiled by the legal officers of National Insurance Corporation, namelyPreethi Abeysekara, Mangalika Shyamali Rajapakse and Sorays RenukaDullewa and not by Milinda Pathirana. Therefore, it is apparent thatthe petition of appeal is not signed by the attorney on record.
In the case cited by counsel for the added plaintiff-respondentSeelawathie and Others v. Jayasinghd1J it was held that where a 120party to a case has an attorney-at-law on record, it is the attorney-at-law on record alone not the party who can lodge an appeal andtake steps. Seneviratne, J. President of the Court of Appeal (as hewas then) observed ‘it is a recognized principle in court proceedingsthat when there is an attorney-at-law appointed by a party, such partymust take all steps in the case through such attorney-at-law. Applyingthe provision of section 27 (2) and the principle laid down in the casecited above it is apparent that the objections raised-is well-foundedand that the appeal is defective, in that the petition of appeal hasnot been signed by the attorney on record.130
In view of the above reasons I am inclined to accept the objectionsraised by the added plaintiff-respondent and reject the appeal withcosts.
DISSANAYAKE, J. – I agree.
Appeal rejected.