074-NLR-NLR-V-10-RANKIRA-v.-SILINDU-et-al.pdf
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Present : Mr. Justice Middleton.
RANKIRA v. SILINDU et ah
C. R., Kegalla, 7,280.
Application for leave to appeal notwithstanding lapse of time—Delay dueto oversight on the part of the proctor—' ‘ Causes not within appli-cant’s control'*—Civil Procedure. Code, ch. LX.
A mistake or oversight on the part of' the proctor of a party toa suit is not such cause within the meaning of section 765 of theCivil Procedure Code as would entitle such party to the relief ofleave to appeal notwithstanding-.the lapse of time.
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HIS was an application for leave to appeal notwithstandingthe lapse of time made under chapter LX. of the Civil
Procedure Code by the plaintiff against the judgment of the Com-missioner (Mr. H. J. V. Ekanayeke, Esq.) dismissing his action. Inexplanation of the delay the following affidavit of the proctor wassubmitted-: —*
“ 1. That I am a proctor of the District Court of Kegalla, andam practising as such at Kegalla.
“ 2. That the action of the plaintiff- above named, for whom Iappeared, was dismissed on December 3, 1906, by the Commissionerof Requests.
“ 8. That the plaintiff, who was desirous of'appealing against thesaid judgment, supplied me with the funds necessary, for appealing,and I filed his petition of appeal within the time required by law.
“ 4. The plaintiff on December 11, 1906, furnished me with a
report certifying that one Rajapassadewayalage Lapaya of Dunuke-
wala was possessed of property, which report I had to show to the
proctor on the other side, and if it satisfied him I was to obtain his
consent to making the said Lapaya a surety for the payment of
defendant-respondents' costs of appeal.
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“ 5. I, however, omitted to see the proctor on the other 9ideabout the giving of security. The matter had escaped my attention. ,On the morning of December 21, 1906, I took up my file and dis-covered .that I was one day too late for giving security.
“6. The omission to tender security in time was d&e to anovlrsight caused bjfc some press of work, and was also occ{isioned by«rthe accident of jny file in the case having 'got mixed up with anotherbundle of files which were not for immediate attention.
‘‘ 7. To the best of my knowledge my client has a very good
appeal on the merits of his case.&
1907.
September 6.
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“8. I have been a proctor since August, 1899, "and this is the 1#®7.first ocoasion on which, through any fault on my part, an appeal has September 9.been out of time.”
Schneider, for the applicant.
A. St. V. Jayewardene, for the respondent.t
September 6, 1907. Middleton J.—
In this case I am asked to admit a petition of appeal notwith-standing lapse of time, and it is clear that the petition is out of timesolely and entirely by the laches of the proctor engaged by the'applicant, and I take it when a proctor is retained in an action he*becomes the recognized and accredited full agent of the party inthe action, and any act of his in the proceedings must be lookedupon as an act of the party himself. He is also fortified by thepeculiar technical knowledge that his office is clothed with, and ifhe makes an error, it. is to all intents and purposes the error of his-client which that client must be responsible for. In the cases decidedby me a few days ago and quoted by Mr. Jayewardene (Silva v.Goonesekara1 and D. C., Galle, 8,398*) the facts were even morefavourable to the applicant than here, but we held, and I think 'rightly, that the appellant or petitioner was not prevented bycauses not within his control from complying with the provisions-of the Code.
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In the present case also considerable indifferqpce has been mani-fested by the petitioner in bringing this matter before the Court.His counsel lays that he made his affidavit on February 27, 1907.The judgment wak delivered in the case on December 3, ‘ 1906, andthe original application in the case was not made until August 3.1907.
Again, .to notice a technical objection, his affidavit does not Statethat which it is requisite it should state under sections 763 and 766*of the Civil Procedure Code.
I therefore feel I ought not to entertain the application. ,1 there-fore dismiss it with costs.'
Application disallowed..
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(1907) 1 App. Court Reports 100.
2 S. C. Min. Aug. 23, 1907.