SAMARANAYAKE V. MEDDEGEWATTE

032-SLLR-SLLR-1991-V2-SAMARANAYAKE-V.-MEDDEGEWATTE.pdf


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Samaran»yake v. Meddegewatie
415
SAM ARAN AY AK0V.
MEDDEGEWATTE
SUPREME COURT.
BANDARAN'AYAKE, j„ amerasinghe, j. and kulatunga, j.S. C. APPEAL NO. 5/89.
JULY 21. 1991.
Appeal – Registered attorney-at-law incapacitated from signing – Nameof registered attorney-at-law signed with his consent – Civil ProcedureCode, s. 755 (3).
Where the registered attorney-at-law was incapacitated from signing byillness and his name was signed on the petition of appeal by another with hisconsent there is sufficient compliance with the requirements of s. 755(3) ofthe Civil Procedure Code. The fact that the appellant also signed the petitiondocs not fcvalidafe the petition.
Cases referred to:
Seelawathie v. Jayasinghe [1985] 2 Sri LR 266
Perera v, Perera [1981] 2 Sri LR 41.
Medananda Therunnaose v. Dhammandanda Thero 46 NLR 117
Nelson Silva v. Casinadar 65 NLR 121
APPEAL from a judgment of the Court of Appeal.
H. L. de Silva P.C. with Wt P. Gunatillaka, I. A. C. Udawatte and C. R.Samaranayake for RespondentBimal Rajapaksa for Appellant.
Cur. adv. vult.
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Sri Leaks Lew Reports
[1991] 2 Sri L.R.
August 29, 1991.
BANDARANAYAKE, J,
Special leave to appeal to the Supreme Court was grantedon the following question of law:
Whether the petition of appeal signed by a party to thecase at a time when there is a registered Attorney-at-Law onrecord can be entertained by the Court of Appeal
As the written submissions on behalf of the appellant hadbeen filed out of time, order was made that Counsel for theappellant cannot be heard at the hearing of the appeal. OnlyCounsel for the respondent was heard.
This case arises from a dispute between two sisters over thewidth of a roadway. The case was settled on 30.8.76 and termsof settlement entered. Consequently a Commission was issuedto have the roadway surveyed in terms of the seftlemdht. Sur-vey Plan No. 706 dated 8.9.77 was presented to the DistrictCourt. Objections were filed by the plaintiff-respondent to tnesaid plan No. 706 on the ground that the Surveyor had mate-rially gone outside the terms of settlement. Upon inquiry theDistrict Judge made an order on 20.7.78. The defendantappealed from that order to the Court of Appeal. When theappeal before the Court of Appeal was finally taken up on26.9.88 preliminary objections were raised by Counsel for theplaintiff-respondent that the appeal was not in order in that —
the petition of appeal had not been signed by theAttorney-at-Law on record, and,
that, instead, the party-appellant herself had signed thepetition of appeal although the petition says it is in thename of the Attorney-at-Law on record.
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SCSamaranayake vy Meddegewatte (Bandaranayake, J.)
The Court of Appeal held that th«e objections must failfor the reason that (i) there is no requirement in the CivilProcedure Code that a petition of appeal should be in thename of an Attorney-at-Law for the appellant as the law onlyrequires that the petition should be signed by either the partyor his registered Attorney, and , (ii) in any event, S.759 (ii) ofthe Civil Procedure Code permits the acceptance of a petitionof appeal which carries an omission or defect or mistake if therespondent had not been materially prejudiced.
The Court held that in the absence of any averment ofmaterial prejudice the objections must fail. The Court alsoheld that the appeal not being from the settlement effected on30.8.76 but from the order of 20.7.78 there was no merit in theappellant’s objection that one cannot appeal from a settlement.The Court ordered that the appeal be listed for argument. Theplaintiff-respondent appeals from that order.
Wheh th® Supreme Court granted leave to appeal, theCourt also made order that the petition of appeal be for-warded to the Examiner of Questioned Documents for exami-nation and report as to whether the name “T. Coomarasamy”appearing on the petition at the place where the signature ofthe Attorney-at-Law on record should appear differed fromthe signatures on the other papers filed by Mr. Coomarasamy,the Attorney-at-Law on record, for example, the answer andthe notice of appeal. The Supreme Court also permitted theparties to file submissions or objections after the opinion ofthe Examiner of Questioned Documents was known.
The report of the Examiner of Questioned Documents con-tained the opinion that the signature of T. Coomarasamy onXI which was the petition of appeal differed from the signa-tures of T. Coomarasamy on X3, X4, and X5 which were, theanswer, notice of appeal, etc. and also expressed the opinion
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Sri Lanka Lav Reports
[1991] 2 Sri LR.
that the signatures of f Coomarasamy on X3, X4 and X5 hadbeen written by one and the same person and that the personwho wrote the signatures of “T. Coomarasamy” on X3 X4and X5 did not write the signature “T. Coomarasamy” on XI.Consequent to this report learned Counsel for the appellant inwritten submissions took up the position that this report wasclear evidence of a fraud having been committed and that thesignature on the petition of appeal XI was a forgery and thatin the circumstances, the defendant cannot succeed in thisappeal. Appellant’s Counsel in his written submissions alsocontended that once there is an Attorney-at-Law on recordand his proxy has not been cancelled or revoked but remainsvalid the party cannot sign the petition of appeal in place ofthe Attorney-at-Law on record. When there is a registeredAttorney-at-Law he must sign all papers including the petitionof appeal because his client has no status whilst the proxyremains unrevoked, Learned Counsel cited the cases reportedin Seelawathie v. Jayasinghe (1) and Perera v. Perera (12).
Again, consequent to the report of the Examiner of Questi-oned Documents the plaintiff-respondent filed affidavitsshowing:—
that the Attorney-at-Law T. Coomarasamy had suffereda stroke in 1978 and was paralyzed and could not sign, and,
Attorney-at-Law Nathanielsz who consequently cameinto the case appeared for the defendant at the inquiry beforethe District Judge on the instructions of Mr. T. Coomarasamyand that he also advised Mr. Nathanielsz to appeal against theorder of the District Judge and that Nathanielsz settled thepetition of appeal and visited Mr. Coomarasamy and showedhim the typed petition of appeal. Mr. Coomarasamy suffered astroke and was unable to write or use his hand. Nathanielszshowed the petition of appeal to Mr. Coomarasamy who read
SCSamaranayake v. Meddegewatte (Bandaranavake, J.)419
it and instructed him to write his name |‘T. Coomarasamy” onpage 5 of the petition above the typewritten words “Attorney-at-Law for the defendant”. Mr. Nathanielsz says he did so inthe presence of Mr. Coomarasamy and Mrs. Coomarasamyand Mr. Kandiah and that on the direction of Mr. Coomaras-amy the defendant-appellant also placed her signature on thepetition of appeal. A few months after this Mr. Coomarasamydied. On 18th September, 1978 the petition of appear was filedbefore the Registrar of the District Court by Mr. Nathanielsz.
The matters^ referred to in these affidavits by Mr. Natha-nielsz, Mrs. Coomarasamy, the defendant-appellant and by aneighbour Mr. Kandiah who was also present at the time whenMr. Coomarasamy directed his name to be written on the peti-tion of appeal had not been controverted in any way. Weaccepted the contents of the affidavits as true.
Mr. H. L. de Silva, P.C., for the plaintiff-respondentreferred* this#Court to the provisions of S.24 of the CivilProcedure Code, He submitted that there was no propositionin law that once the party gives a proxy he cannot himself takeany further part in it. Counsel referred us to two casesreported in Medananda Therunnanse v. Dhammandanda
Thero (3) and Nelson Silva v. Casinadar (4).
In this case we accept the affidavit evidence that theAttorney-at-Law on record Mr. T, Coomarasamy was incapa-citated by reason of illness and was unable to sign the petitionof appeal but that he instructed Mr. Nathanielsz to write hisname in place of his signature. This event is confirmed by theparty appellant and by her witness. In these circumstancesthere is no question of a fraud because Mr. Coornarasamy’sname came on the document with his consent and on his direc-tion. We, therefore, do not have to approach this case as one
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where there has beenfii forgery in the document in Tssue. Inpoint of fact there is no mistake of omission or defect in thepetition of appeal that needs to be cured. The name of T,Coomarasamy appearing as it does on the petition of appeal istantamount to his having placed his signature on the docu-ment in the circumstances of this case.
In the view we have taken that the provisions of S.755 (3)of the Code have been thus satisfied, the fact that in addition,’the party to the case has also signed the petition does notmake the petition bad in law. The appeal is dismissed withcosts. The Court of Appeal is directed to take the next step inthis action.
Amerasinghe, J.,— I agree.
Kulatonga, J.,— I agree.
Appeal dismissed.