032-SLLR-SLLR-1985-V2-SEELAWATHIE-AND-ANOTHER-v.-JAYASINGHE.pdf
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Sri Lanka Law Reports
[1985] 2 Sri L.R.
SEELAWATHIE AND ANOTHER
v.
JAYASINGHE
COURT OF APPEAL.
SENEVIRATNE. J (PRESIDENT) AND JAMEEL. J.
S C 158/77 (F).
D C. GAMPAHA 17397/P.
APRIL 1 AND 2. 1985.
Party giving notice of appeal and taking steps when he has on record a registeredattorney-at-law – Sections 323 (1) and 378 (3) – Administration of JusticeLaw – Sections 27 (2), 755 (3) and (4) – Civil Procedure Code.
When a party to a case has an attorney-at-law on record, it is the attorney-at-law onrecord alone and not the party who can lodge an appeal and take steps.
Per Seneviratne, J. (President C/A) :
"It is a recognised principle in court proceedings that when there is an attorney-at-lawappointed by a party, such party must take all steps in the case through suchattorney-at-law".
Cases referred to:
Silva v. Cumaratunga (1938) 40 NLR 139.
Perera v. Perera and Another [ 1981) 2 SLR 41.
Anthomsz v. Deroks (1903) 6 NLR 161
Emmanuel v Ratnasingham (1932) 34 NLR 126.
r
APPEAL from the District Court of Gampaha – Preliminary obiectton
N. R M. Daluwatte, P C with Miss. S Nandadasa for 4th and 6thdefendant-appellants.
J.W Subasinghe, P.C. with Miss. E. M. S Edmsmghe and A. A R. Heiyantuduwa torplaintiff-respondent.
Cur. adv. vult.
CA
Seelawathie v. Jayasinghe
267
June 14, 1985.
SENEVIRATNE, J. (President C/A)
The plaintiff-respondent filed this action to partition a land calledGalabodawatta. The 4th and 6th defendants, who are wife andhusband respectively were the contesting defendants. They claimedcompensation for improvements and some plantations as revealed inpoints of contest Nos. 1 and 3. Judgment went against them asregards these points of contest, and the 4th and 6th defendants havefiled this appeal. The appeal proceedings have been taken under, thenow repealed Administration of Justice Law No. 44 of 1978,Chap. 4 : Appeals Procedure.
At the hearing of this appeal learned President's Counsel for therespondent submitted that the notice of appeal dated 10.6.77 hasbeen filed by the 4th and 6th defendant-appellants in person, whereason this date there was on record a registered attorney TissaKarunaratne. who represented these parties. He submitted that assuch the notice of appeal filed on 10.6.77 was bad in law, and theappeal should be rejected. Learned President's Counsel submittedthat section 323 (1) of the Administration of Justice Law did notpermit the notice of appeal to be signed by the appellant himself,when he had a registered attorney on record.
Section 323 (1) is as follows :
"Every notice of appeal shall contain the particulars prescribed by
rules of Court, shall be signed by the appellant or his registered
attorney”,
The submission of the learned President's Counsel was that theprinciples accepted by Court pertaining to a registered attorneyappearing for a party do not permit a party to sign the petition ofappeal when he had a registered attorney on record, as it wouldcreate a situation where both the party and his registered attorney areacting in the same case. There is no direct authority regarding theinterpretation of section 323 (1) or like sections in the now repealedCivil Procedure Code Chap. 101, and the present Civil ProcedureCode Chap. 101 as amended in 1977 and later.
The repealed Civil Procedure Code Chap. 101, section 755 laiddown that "all petitions of appeal shall be drawn and signed by some
advocate or proctor", and the proviso provided the
manner in which a party in person can file a petition of appeal. This
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Code has no like section as section 323 (1) of the Administration ofJustice Law. The present Civil Procedure Code has like sections.Section 755 (4) provides as follows .
"Every notice of appealshall be signed by the
appellant or his registered attorney".
As regards the petition of appeal the present Civil Procedure Codeprovides in section 755 (3) as follows :
"Every appellant shallpresent to the Original
Court a petition of appeal which shall be signed by the
appellant or his registered attorney".
Thus, the present Code has provisions similar to section 323 (1) ofthe Administration of Justice Law.
As stated earlier the submission of the learned President's Counselfor the respondent is that even under a provision like this, an appellantcannot personally sign and file a petition of appeal if he has aregistered attorney on the record, but if a party does not have aregistered attorney, such party can file a petition of appeal signed byhim.
Learned Counsel for the appellant submitted that the plain meaningof these phrases is quite clear, particularly in view of the use of theword "or"; on the plain meaning and understanding of the sectioneither the appellant or his registered attorney can file the petition ofappeal. Learned Counsel for the appellant goes further and submitsthat the appellant can sign and file a petition of appeal even though hehas a registered attorney in view of the provision – section 323 (1) ofthe Administration of Justice Law, and as such the notice of appealwas a valid one and should be accepted.
There is an abundance of authority, I should say from timeimmemorial (1881) up to day, which authorities have been referred toby learned President’s Counsel for the respondent which set out theprinciple that two attorneys (at the time these cases were decided twoproctors) cannot act for a party. This principle has been reiterated inthe case Silva v. Cumaratunga (1). In this case the petition of appealwas not signed by the proctor who was the proctor on the record onthe day the appeal was filed, on November 12th 1937. The facts
CASeelawathie v. Jayasinghe (Seneviratne, J)269
show that the proctor on record earlier had revoked his proxy on 15thNovember, 1937, so that at the time the petition of appeal wasfiled the said proctor was the proctor on record. As the petition ofappeal was not signed by the proctor on record on 12.11.37, thedate on which the appeal was filed, the Supreme Court rejected thepetition of appeal. Maartensz, J. summed up the principle decided inthe previous cases as follows :
"The ratio decidendi in old cases, with which I respectfully agree,was that this Court cannot recognise two proctors appearing for thesame party in the same cause".
The learned President's Counsel for the respondent relying on theprinciple set out above submitted that in the same manner a party andhis attorney-at-law on record cannot appear at the same time. ThePresident's Counsel for the appellant submitted that to introduce afterthe words "shall be signed by the appellant", the words 'who has noattorney-at-law on record' would be contrary to the plainunderstanding of the section,
I am of the view that section 323 (1) and the like sections in thepresent Code should be interpreted firstly in relation to theprinciples set out by the long series of authorities, and secondly in amanner not to cause disorder in Court proceedings. Permitting eitherthe appellant or the attorney-at-law to sign the petition of appealwould mean that two parties are acting at the same time in the courseof the proceedings of a case. Further, permitting such a practicewould lead to disorder and confusion in Court proceedings. The words"shall be signed by the appellant or his registered attorney" should beunderstood and interpreted to mean that the petition of appeal can besigned by the appellant when he has no registered attorney onrecord. Under the Administration of Justice Law such a situationwould have arisen under section 378 (3) of the Administration ofJustice (Amendment) Law No. 25 of 1975, if any one of the instancesset out in section 378 (3) (c) arose between the day of the judgmentand the last day of the lodging of an appeal. In the present Code ofCivil Procedure section 27 (2) is the like section.
I must now advert to another matter, which is shown in the record.In any event section 323 (1) is limited to the appellant signingthe petition of appeal. But in this instance, 4th and 6thdefendant-appellants have not only signed the petitior^nf anneal hut
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they have taken further steps. Judgment was delivered on 6.5.77 andon that day Tissa Karunaratne, their registered Attorney-at-law hasbeen present in Court and taken notice of the judgment. (J. E.44 of 6,5.77). On 10.6.77-J. E. 45-the 4th and 6thdefendant-appellants have filed the notice of appeal signed by themand taken further steps, i.e. deposited security Rs. 150 and made theinitial deposit for the briefs and moved that the record be forwarded tothe Supreme Court. According to the same journal entry the Court hasissued notice on the 4th and 6th appellants under section 324 of theAdministration of Justice Law to appear on 10.8.77. The appellantshave appeared on that notice on 10.8.77, and on journal entry 48they had undertaken to deposit the required security within one week.On 17 10.77 – J. E. 45 – the appellants have deposited the securityand the order ‘is forward record to the Supreme Court. ' Thus, it isseen that after the judgment was delivered and when the registeredattorney-at-law was on record the appellants have in person takenfurther steps. The appellants were not entitled to take these steps andit appears that the Court itself has not realised that the appellants weretaking steps in the case, when there was a registered attorney onrecord
When a party to a case has an attorney-at-law on record, it is theattorney-at-law on record alone, who must take steps, and also whomthe Court permits to take steps. It is a recognised principle in Courtproceedings that when there is an attorney-at-law appointed t/ aparty, such party must take all steps in the case through suchattorney-at-law. Further, the principle established in a court is that if aparty is represented by an attorney-at-law such a party himself is notpermitted to address Court, All the submissions of the party must bemade through the Attorney-at-law who represents such a party.
In course of the argument reference was made by both counselio the case of Perera v. Perera and Another (2), Judgment of Soza, J.In this case one of the objections taken to the petition of appeal wasthat it had been perfected by an attorney who was not the registeredattorney. Soza. J. held that so long as there was a proxy on record itwas only the registered attorney who had the authority to sign thepetition of appeal Soza, J. has stated as follows :
"It is only the registered attorney who has the authority, can sign itso long as his proxy ts there on the record The appellant himself canalso sign it.laut no one else"
CA
Seelawathie v Jayasinghe (Seneviratne. J.)
271
Section 755 (3) states that the petition of appeal "shall be signed bythe appellant or his registered attorney". The facts in this case werethat the appellant had a registered attorney, but the petition of appealwas not signed by that attorney, but was signed by another attorney,who was acting along with the registered attorney Soza. J. held thatthe latter attorney had no authority to sign the petition of appeal It isin that context that Soza, J. has stated as'above – "the appellanthimself can also sign it. but no one else" In this case Soza, J. did notconsider and rule on the point as to whether when there was aregistered attorney on record the appellant himself can sign and filethe petition of appeal. As such, this case ts no authority for theproposition made by learned Counsel for the respondent that thepetition of appeal signed by the 4th and 6th defendant-appellants wasa valid one even though they had a registered attorney on record.
] hold that the objection taken by the learned President's Counsel forthe respondent to the constitution of this appeal is a valid objection.The objection is valid on the plain interpretation of the section and alsoin the light of the principles set out by the Court from time immemorial.
For these reasons the notice of appeal filed on 10.6.77 is rejectedand all other further steps taken by the 4th and 6th defendants mperson io perfect the appeal are held to be invalid. For these reasonsthe appeal is dismissed with costs.
In the cases referred to above, the Supreme Court while dismissing anappeal on the grounds set out above, has considered what reliefshould be given to such a party. In the case of Anthomsz v. Derolis (3}the Court rejected the petition of appeal, but at the same time gavethe party the relief to move the Supreme Court in revision if he sodesired. In the case of Emmanuel v. Ratnasmgham (4) Courf rejectedthe petition of appeal, but at the same time reserved the right to theappellant to move in revision if so advised. In this instance there hasbeen no application for such relief in the event of the Court upholdingthe objection raised by learned President's Counsel for therespondents. Further, I have read the proceedings in this case, and themerits of the case of the 4th and 6th appellants also do not entitlethem to such relief
JAMEEL, J. – I agree.
Preliminary objection upheld.
Appeal rejected.