056-NLR-NLR-V-28-SCHARENGUIVEL-v.-ORR.pdf
( 902 )
1926.
Present: Garvin and Lyall Grant JJ.SCHARENGUIVEL v. ORR.
170—D. C, (Inty.) Kalutara, I2817.
Default of appearance—Proctor's failure to inform the client of date oftrial—Absence of client—No excuse for default—Civil ProcedureCode, s. 84.
Where a judgment is entered against a party by default, it is nota sufficient exejise for hi3 absence that his proctor had failed to.inform him of the date of trial.
Per Lyaui Grant 0.—It has never been held thatProctor
for a plaintiff who had received a proxy and instructions for t.h<*preparation of a plaint is entitled to avoid a final judgment againsthis client merely by stating on the date fixed for trial that he had’received no instructions.
Senanayake v. Cooray1 considered.
^^PPEAL from an order by the District Judge of Kalutara-..
H. V. Pererat for plaintiff, appellant.
November 19, 1926. Lyall Grant J.—
This is an appeal from an order of the District Judge of Kalutaradisallowing an application by the plaintiff to re-open a case. Theplaintiff-appellant had brought an action for the recovery of a sumof Rs. 1,500. For the purposes of the action he gave a jftroxy 'to acertain Proctor who filed the plaint. The plaint was signed by theProctor. Summons was issued and served and answers were field.On February 2, 1926, the defendant's issues were filed andthe date of trial fixed for June 16. When the date was fixed neither*
(1911) 15 N. L. R. 36.
( 303 )
iihe Proctor nor the plaintiff was present in* Court. On June 16 the■ease came on for trial, when the Proctors for both parties werepresent.
The Proctor on behalf of the plaintiff then stated that he hadno instructions from his client. Thereupon, on the motion of-the' defendants, the case was dismissed, with costs.
On June 22 Messrs, de Abrew & Jayasundere filed a proxyfrom the plaintiff with cancellation of his proxy to his formerProctor, together with an affidavit from the plaintiff, and askedthat the decree be set aside and the case fixed for trial.
1926.
Lyaai.Gbant J.
Seharengni-vel v. Orr
' After inquiry, the learned' District Judge found that the plaintiffwas not ignorant of the date of trial, and disallowed the application.
The proceedings to set aside the decree were brought under section84 of the Civil Procedure Code on the assumption that the decreedismissing the action was entered in default of the plaintiff's■appearance.
The actual decree passed was in form an ordinary final decree,but the learned District Judge in the subsequent proceedingstreated it as a decree nisi and held an inquiry under section 84 ofthe Civil Procedure Code. He found that the failure to appear wasdue to the plaintiff’s own negligence, and refused to re-openthe case.
On appeal there was a good deal of discussion on the point whetherthe plaintiff had or had not failed to appear on the date of trialinasmuch as his Proctor was present, and accordingly whether thedecree could not or could be treated as a decree nisi under section 84■of the Civil Procedure Code.
The District Judge does not appear to have dealt with this aspectof the case. He gives the appellant the benefit of any doubt theremay be on the point and treats the decree as one made in-his absence.He finds, however, that the plaintiff has not shown good cause for hisnon-appearance. On the question of whether the failure to appearwas due to his own personal fault or to that of his Proctor, iie findsthat it was due to the fault of the plaintiff himself.
To my mind the facts indicate that there was negligence on thepart of the Proctor, and not personal negligence on the part of theplaintiff.
That, however, is immaterial. The plaintiff must suffer forhis Proctor's negligence. This i; clearly laid down by Bonser C..J.in Pahir Mohideen v. Mohamadu Cassim.1 There the defendant,after filing answer, took no steps to get ready for trial. The easeproceeded ex parte and a decree nisi was entered against hint.
The Proctor appeared in Court and said he had no instructions.and withdrew from the case. The defendant said that he had.mistaken the date of trial.
28/23
1 (1900) 4 -V. L. R. 299.
( 304 )
1986.
Ltalx.Gbaht J.
ScharengtU-Del v. Orr
It was held that it was the duty of the Proctor to havejnfprmed' ..the defendant of the proper date of the trial and to have asked forinstructions, and that as the Proctor did not appear to have done;his duty he was to blame for the absence of the defendant, and thedefendant must suffer for the fault of his Proctor.—
In that case Bonser C.J. said: —
** The Proctor knew that the trial was coming off on June27, and I cannot find any excuse for a Proctor so forgetful orneglectful of the interests of his client as to fail to inform himof the date of trial which was rapidly approaching or evento ask for instructions in the matter. If the Proctor did notdo his duty he is to blame for the absence of the defendant,.
and the defendant must suffer for the fault of his Proctor.”
$
With the exception that in the present case the party asking tohave the case re-opened is the plaintiff and not the defendant, the „relevant circumstances of that case appear indistinguishable fromthose now before us.
That is sufficient to dispose of the appeal. The District Judgewas entitled to hold that the plaintiff had not showed cause whythe case should be relisted.
I am, however, not at all satisfied that in the circumstances the-decree was not a decree inter partes. It has never been held that aProctor for a plaintiff who has received a proxy and instructionsfor the preparation of a plaint is entitled to avoid a final judgmentagainst his client merely by stating on the date fixed for trial that'he has received no instructions.
Prima facie it is his. business to obtain instructions. Cases havebeen cited where it has been held that the mere fact of a Proctor fora defendant stating to the Court that he had no instructions fromhis client did not necessarily constitute an appearance. The leadingcase is Senanayake v. Gooray (supra). There the Proctor was casuallyin Court and had no instructions to represent his client at the trial.One of the reasons given for the decision—the grounds for which arehot very clear—was that the case dealt with title to immovableproperty.
In Perera v. Gunatileke,l where the circumstances were somewhatsimilar, the decision was followed.
Another case similarly decided was Kandappa v. Mar intuitu.2
On the other hand, where a defendant's Proctor appeared on thedate of trial and moved for a postponement on the ground thatowing to the absence of his client from Ceylon he was unable toget ready for the trial and the postponement was refused, that washeld to be such an appearance as to make the trial one inter parte*and the judgment a final one. (Gargial v. Somasnndaram Ghetty.*)
1 {1917) 4 0. W. R. 6.3 (1911) 14 A L. R. 395.
3 (1905) 9 N. L. R. 2$.
( 305 )
The ratio decidendi of Senanayake v. Cooray (supra)- and Pe’rera wGunatileke (supra) is not easily discernible, but all that they decideis that there may be circumstances in which the presence of a Proctordoes not constitute an appearance for his client.
They do not, to my mind, justify the conclusion- that- a Proctorcan convert what would otherwise be a final decree into a decreenisi merely by stating that he has no instructions from his client.
I should like to see the point authoritatively-decided'in-a suitablecase.
The appeal is dismissed.
Garvin J.—
I agree to the order proposed by my brother, and I share his viewthat when a suitable opportunity presents itself the judgments inSenanayake v. Cooray (supra), Perera v, Gunatileke (supra), andKandappa v. Marimuttu (supra) should be reviewed and the point-
settled by an authoritative decision.
Appeal dismissed.
1926.:
T-vat.t.Grant JV
Scharengui•-vel. v. Orr~-