075-NLR-NLR-V-10-PERERA-et-al.-v.-PERERA.pdf
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1997. Present: The Hon. Sit Joseph T. Hutchinson/ Chief Justice, andNovember 4.Mr. Justice Wood Benton.
PERERA et al. v. PERERA.
Ex -parte C. VanoerwaXiL, Proctor, Appellant.
D. C., Kandy, 15,487.
Petition ofappeal—Proctor-appellant—Signatureby proctor himself—
Civil Procedure Code, s. 755.
Section 755 ofthe Civil ProcedureCodeenacts .that“ all petitions
of appeal shall be drawn and signed by some advocate or proctor,orelsethesameshallnotbe received. Provided always that any
partydesirous toappeal may, withinthetimelimitedfor presenting
apetitionof appeal,andupon his producing the proper stamp
required for a petition of appeal, be allowed to state vied voce hiswish to appeal, together with the particular grounds of such appeal,>and the same shall (so far as they are material) be concisely takendownin writingfrom the mouth ofthepartyby the Secretary or
Chief Clerk of the Court in the form of a petition of appeal, whenitshallbesignedby suchparty and attested by the Secretary or
ChiefClerk, andbe received' as thepetition ofappealof such party
without the signature of any advocate or proctor.'*
Held,that wheretheappellant himself is an advocate or proctor,
the words of the enactment are satisfied1 if he draws and eigne thepetition of appeal &mseli.
c
Silva v. Goppe Tamby followed.€
A
PPEAL by the proctor from an order of the District Judgeholding that he has no lien over a sum of money in Court,
Hie proceeds of execution of the judgment.
The facts material to the report sufficiently appear in the judg-ment.
H. /. C. Pereira (with him Van Langenberg), for the appellant.
J. de Saramt for the respondent.
Counsel for the respondent objected to the admission of theappeal on the ground that the petition of appeal did not Conformto the provisions of section 755 of the Civil Procedure C^de, inas-% much as it was not signed by some advocate or proctor on behalf%i the appellant*
Cur. adv. vult.
i 8am. (1843-55) 66.-*1
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November 4, 1907. Hutchinson C.J.—1907.
The appellant is a proctor. He was proctor in the action for the Noventber 4original plaintiff, w^o then died, and the present plaintiff was substi-tuted for him and employed another proctor. The appellant claimeda lien for his costs over a sum of money in Court, the proceedsof execution of the judgment. The District Judge disallowed >his claim, and he appeals against the order of the District Judge.
A preliminary objection is taken by the plaintiff that the petitionof appeal does not comply with section 755 of the Civil ProcedureCode, inasmuch as it is signed only by the appellant.
Section 755 enacts that all petitions of appeal 'shall be drawn orsigned by some advocate or proctor, or else they shall not be received,provided that any party desirous to appeal may state vivd voce hiswish to appeal, and the grounds of his appeal, which shall be takendown in writing by the Secretary of the Court in the form of a peti- •tion of appeal, when it shall be signed by the . party and attested bythe Secretary, and be received without the signature of any advocateor proctor. Where the appellant himself is an advocate or proctorthe words of this enactment are satisfied if he draws and signs thepetition himself; but it is not so clear that the real meaning andintention of the enactment are satisfied. It looks as if. the intentionwas that some advocate or proctor other than the appellant shoulddraw and sign on his behalf, with a proviso that he may dictate hispetition to the Secretary and get the Secretary to attest it. Butthe Legislature has not expressed this;, probably i$ did hoi: thinkof .the case where the appellant is an advocate or proctor; it is acase omitted. It is .arguable that the Legislature, if it had intendedthat the petition should be drawn by some proctor *' other than theappellant, ” wod^ have inserted those words, or, on the other hand,that if it had intended that a proctor-appellant might draw hisown petition, it would have inserted the words “ unless the appellanthimself is a proctor. ”
There is, however, a decision which seems to be in point (Silva v. ;
Goppe Tamby) reported in Ram. (1843-55) 66. This is a decisionon the rule of 1846, which is in the same terms as section 755, andthe Court held that a proctor-appellant need not ^employ * another ■proctor to draw and sign his petition of appeal, but that his ownsignature, with the addition “Proctor of the D. C. " is enough.
The case is referred to in Thompson’s Institutes, i. 180, where theauthor in a footnote says:“ The rule was introduced in the hope
that professional men would not give their aid to vexatious andfrivolous ^appeals, ” giving as his authority 4,401, D, C., Colombo, .
August 10, 1846.>3
The reason given by the Judges for their decision does not seem agood one. But the decision does not appear to have been over-ruledor dissented from, wad I think we aught to follow it. I. wouldtherefore over-rule the preliminary objection.
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1907,
November 4.
Wood Renton J.—
I agree that we are bound by the authority of Silva v. GoppeTambytl decided under a rule (rule 2 of the rufes of December 12,1846) identical in tenor and even in terms with section 755 of theCivil Procedure Code, to over-rule the preliminary objection takenon behalf of the respondent to the admission of the present appeal.I desire to add, with the greatest respect for the learned Judges whodecided that ease, that I should not be prepared to follow it asratio scripta. I do not think that the proposition with which thejudgment commences, th$t “ proctors, attorneys, and solicitorsare privileged to sue or be sued in their respective Courts in person, "is strictly accurate in itself, or 'constitutes any foundation for theconclusion deduced from it, that a proctor of .the District Courtneed not employ another proctor to sign his petition of appeal. Itis true that in England a proctor, attorney, or solicitor was .privi-leged to sue or be sued only in the Court to which he belonged, onthe principle that his attendance was constantly required there forthe despatch of business. It is also true that this privilege wassometimes asserted' in person (see Ohatland v. Thomley2), althoughit was latterly held that it could only be pleaded by attorney(see Groom v. Wortham,3 and of. Hunter v. Neck4). But just asthe privilege itself existed for the. convenience of the Courts andtheir officers and of suitors, so the right of the proctor, attorney, or•solicitor, in so far as it was recognized, to assert the privilege inperson, had nothing to do with his professional standing. When•an unsuccessful attempt was made in Hunter v, Neck (ubi sup.) toinduce the Courts to hold that a plea by which the defendant allegedthat he was an attorney of another Co(urt, and privileged to be suedthere, must be pleaded in person, the claim was ba*:ed solely on thecontention that if he appeared by attorney, he must be taken tohave submitted to the jurisdiction which he challenged. I do notthink that the privilege relied on by the Judges in Silva v. GoppeTamby has any real bearing on .the question at issue in .that case•or in the present one.
Moreover, as a mere matter of construction, section 755 of theCivil Procedure Code seems to me to require an appellant, whether•he be a proctor or an advocate or a layman, either to present hisappeal under the signatureofanadvocateor proctor, ortoavail
himself Of the provisotothesamesection, and have itrecordedand
forwarded by the Secretary or- Chief Clerk of the Court below.This r interpretation of the section results clearly, I think, from theusd of words# “ any party desirous to appeal M in the proyiso.,Jt appears to me that the proviso prescribes the mode, and the . solemode, in which an appeal can be received in this Court withoutbeing authenticated by the signature of an advocate or proctor.
i mC) Ram. (1843-55)66.» (1842) 2Dotrl. N. S.657.
■* (1810) 19 East 544.< (1841) 3Man. A Gr.181.
* c
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As a matter of policy there are substantial reasons why thisconstruction of the law should have been maintained. It mayquite well be that the identification of appellants and the exclusionof the undesirable services of the baser sort of petition drawers andof touts were among the objects of section 755 of the Code of CivilProcedure; and, of course, that section affords no absolute safe-guard against the presentation of frivolous petitions, inasmuch as,whatever may be the view of an appeal taken by the advocate orproctor, any party may have it brought before the Appeal Courtby means of the proviso. At the same time the enactmentembodied in section 755 of the Code was designed* to check frivolousappeals (see Thompson's Institutes, i. 180, and 4,401, D.C., Colombo,August 10; 1846); and the fact that his proctor or advocate refusedto sign an appeal would in many cases act ad a wholsome check•on a vexatious litigant. Experience has shown that the legal pro-fession itself may furnish, from both its branches, types of thisclass who stand in great need of such restraint. In saying this Iam, of course, treating the question as an abstract one, and notreferring in any way to the position of Mr. Vanderwall, againstwhose good faith, in the present matter, no imputation whateveris suggested. I agree, however, that Silva v. Coppe Tamby isbinding on us here, and that the preliminary objection must fail.
1907.
November 4.
WoodRenton J.
Preliminary objection over-ruled.