SOERTSZ J.—Punchibanda v. Punchibanda
1941Present: Howard C.J. and Soertsz J.
PUNCHIBANDA v. PUNCHIBANDA et ol.
89—D. C. Kurunegala, 19,047.
Evidence—Admission made by Counsel—Admission not clear—Binding effecton party—Admission to be in writing.
An admission made in the course of a trial on behalf of a party shouldbe clear and distinct and should, as a rule, be made in writing andsigned by the parties or their proctors.
PPEAL from a judgment of the District Judge of Kurunegala.
N.Nadarajah, for defendants, appellants.
.V. E. Weerasooria, K.C. (with him E. B. Wickremanayake), for plaintiff,respondent.
Cur. adv. vult.
June 5, 1941. Soertsz J.—
The short point in this case is whether the defendants-appellantsare entitled to avail themselves of the opportunity given to them by theDistrict Judge on January 26, 1940, to amend their answer, by amendingit to the extent of disregarding an admission made by Counsel whoappeared for them and by the plaintiff’s proctor to the effect that “ Theshares are admitted at this state. It is admitted that the parties do notbase their claim to particular lots' on their prescriptive rights ”.
The amendment which has been rejected calls in question the plaintiff’sfight to any shares of this land at all, and sets up a prescriptive titleagainst him.
The learned trial Judge rejected this amended answer because he heldthat the defendants were not entitled to repudiate the admission on theground on which they seek to repudiate it, namely, that their Counsel hadno right to make it, and that he made it without their consent.
It has been held in several cases that a proctor has the right to settleor compromise a matter or case entrusted to him even without consultinghis client in regard to it (see Fernando v. Sinnoris Appu ’), and I supposeCounsel may make an admission if he is instructed by his proctor to makeit, but the difficulty in the present case is that the admission is recordedin so perfunctory a manner that one cannot be certain as to who made theadmission and in what circumstances, it was made.
This Court has often pointed out that when^settlements, adjustments,admissions, &c., are reached or made, their nature should be explainedclearly to the parties, and their signatures of thumb impressions' shouldbe obtained. The consequence of this obvious precaution not being takenis that this Court has its work unduly increased by wasteful appeals andby applications being made to it for revision or restitutio in integrum.One almost receives the impression that once a settlement is adumbrated,those concerned, in their eagerness to accomplish it, refrain fromprobing the matter thoroughly lest the settlement fall through.
1 26 If. L. R. 46.0.
Parsons v. Abdul Coder.
This is a very unsatisfactory state of things and it is to be hoped that agreater degree of responsibility will be shown on these matters by bothjudges and lawyers.
Reference was made in the course of the argument here to the case ofHewa Radage Phillspu v. Ferdinandis and others1 in which Burnside C.J.commenting on an admission which it was alleged had been made byCounsel said “ I should hold that any admission which might be madefor the defendants attempting to bind them to their manifest prejudicein the very essence of their contention on their evidence would not bindthem without showing that they had expressly authorised their Counselto make it and with a full knowledge of its effect ”. In the case before usthere is nothing to show that the parties had so expressly authorisedtheir Counsel. Indeed they say that they were not consulted in the matter.But quite apart from that objection, I am of opinion that theadmission relied on is so vaguely worded that it is difficult to say whatshares were being admitted and what prescription was being waived—prescription in respect of separate blocks or of the whole land or both.The English case of Landers v. Landers2 lays down that “ admissionsought, in general, to be in writing and signed either by the parties or theirsolicitors. They should he clear and distinct”. Section 408 of the CivilProcedure Code read with Section 91 requires a certain formality in regardto agreements and compromises. I would, therefore, set aside the orderof the District Judge and send the case back for trial on the pleadings asamended. The costs of this appeal will abide the result. The partiesand proctors will not be entitled to costs incurred on January 31, 1939,and on June 27, 1940.
Howard C.J.—I agree.
Order set aside.
PUNCHIBANDA v. PUNCHIBANDA et al