018-SLLR-SLLR-2005-V-2-SIRIWARDENA-AND-OTHERS-vs-JOHN-KEELS-CO.-LIMITED.pdf
CA
Siriwardena and Others vs. John Keels Co. Limited
(Gamini Amaratunga, J)
89
SIRIWARDENA AND OTHERSvs.
JOHN KEELS CO. LIMITED/
COURT OF APPEALAMARATUNGA J.
CALA APPL. 376/2002D. C. RATNAPURA 15457/MMARCH 5, 2003
Civil Procedure Code – Section 27, 247 – Proxy defective? – is the Plaint bad inlaw? – Could the defect on the proxy be cured? Is the time limit set out inSection 247 a positive legal bar?
When the Plaintiff – Respondent seized the land in question on the decreeentered against the 1st Defendant, the 3rd and 4th Defendants successfullypreferred their claims to the land in question on the basis that they were thelawful owners. Thereafter the Plaintiff instituted action against all 4 Defendantsto obtain a declaration that the transfer deeds are null and void and to obtain adeclaration that the said property is liable to be seized in execution of thedecree issued by Court.
The Plaint was signed by one “S” Attorney at Law. The proxy contained thenames of one "A" “S” one “J” and one “T”. The Defendant in their answerobjected to the validity of the Plaint on two grounds
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Sri Lanka Law Repons
(2005) 1 Sri L. R.
that since the four Attorneys are not practising in partnership and/or thatthe other three Attorneys are not the Assistants of ‘A”, the Plaintiff cannotpresent a plaint in the names of all four of them and
the plaint has been signed by an Attorney at Law other than the Attorneyto whom the proxy has been given.
The trial Judge over ruled the objection.
Held:
It is a fact that the Plaint has been signed by an Attorney at Law one ofthe Attorneys named in the proxy. Thus it has been signed by an Attorneyon record; further the Plaintiff had sought to revoke the proxy given toAttorney at Law 'A' and has filed a fresh proxy in the name of “$" andsome others. This is an indication that “S" had authority of the Plaintiffto act on his behalf.
If the Proctor had infact the authority of his client to do what was doneon his behalf, although in pursuance of a defective appointment and ifin fact his client had his authority to do so, then the defect is one whichin the absence of any positive legal bar could be cured.
As regards the time frame set out in Section 247, as the Plaint hadbeen signed by an Attorney at Law whose name appears in thedefective proxy(s), this defect is curable. It appears that the Attorney atLaw “S” who had signed the plaint had the Plaintiff’s authority to act forhim. Thus the time limit set out in Section 247 is not a positive legal barpreventing the Plaintiff from curing the defect in the proxy.
APPLICATION for leave to appeal from an Order of the Ddistrict Court of
Ratnapura.
Cases referred to :
Treabyvs. Bawa – 7 NLR 22
Tilakaratne vs. Wijesinghe – 11 NLR 270
Kadiragama Das vs. Suppiah – 56 NLR 172
Dias vs. Karavita – 1999 1 Sri LR 98
Udeshivs. Mather – 1988 1 Sri LR 12
Paul Coir (Pvt.) Ltd. vs. ECJ Vaas – 2002 1 Sri LR 13
Navin Marapana for Petitioners
Hugo Anthony for Respondent
Cur. adv. vault.
CASiriwardena and Others us. John Keels Co. Limited9 1
(Gamini Amaratunga, J)
May 22, 2003
GAMINI AMARATUNGA J.This is an application for leave to appeal against the order of the learnedDistrict Judge of Ratnapura rejecting an objection raised on behalf of thedefendant-petitioners that there was no proper plaint before Court for theplaintiff-respondent to proceed with the action it has filed against thedefendants.
The facts relevant to the objection are as follows.. The 1st defendanthas obtained monetary assistance from the plaintiff to run his tea factoryat Karanketiya. On a cause of action which has arisen on the said moneytransactions; the plaintiff has filed case No. 3611/M in the District Court ofColombo against the 1 st defendant. The 1 st defendant by deed No. 2609of 1986 has transferred his property described in the schedule to the plaintfiled in the present action to his two sons, the 2nd and 3rd defendants.Both of them have in turn transferred the said property by deed 3143 of1989 to the 4th defendant and the latter has by deed 4048 of 1994 hasentered into a planting agreement with the 3rd defendant. When the plaintiffseized the land in question on the decree entered against the 1 st defendantby the District Court of Colombo, the 3rd and 4th defendants havesuccessfully preferred their claims to the land in question on the basisthat they were the lawful owners of the said property. The present actionhas been filed against all four defendants to obtain declarations that alltransactions relating to the transfer of the relevant land have been carriedour fraudulently with a view to prevent the plaintiff from seizing the saidland in execution of the decree obtained by him in the District Court actioninstituted in Colombo against the 1st defendant; to obtain a declarationthat the said deeds are null and void and to obtain a declaration that thesaid property is liable to be seized in execution of the decree issued bythe District Court of Colombo.
The plaint in the present action has been filed in the District Court ofRatnapura on 29/07/1999. The plaint has been signed by K.Sivaskandarajah, Attorney-at-Law. The proxy filed contained four namesas registered attorneys for the plaintiff, namely B. L. Abeyratna, K.Sivakandarajah, Ms. C. N. Jaysuriya and Mrs. N. W. Thambiah. It is notstated in the proxy that B. L. Abeyratna and the other Attorneys-at-Laware practicing in partnership or that they are the assistants of Mr. B. L.Abeyratna.
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Sri Lanka Law Reports
(2005) } Sii L. R.
In the answer of the defendants filed on 10.12.1999 objection has beentaken to the validity of the plaint on two grounds. The first ground is thatsince the four Attorneys named in the proxy are not practicing in partnershipand/or that the other three Attorneys are not the assistants of Attorney
L. Abeyratna, the plaintiff cannot present a plaint in the names of all fourof them. The other objection is that since the plaint has been signed by anAttorney-at-law other than the Attorney to whom the proxy has been giventhe action is not maintainable on that proxy. Despite this objection thereplication dated 09/06/2000 has been signed by Attorney B. L. Abeyratna.Thereafter on 25/02/2002 the same objection to the plaint set out abovewas raised before the learned District Judge and thereupon the partieswere directed to file written submissions.
After considering the written submissions the learned District Judgehas made order overruling the objection on the basis that the defect in theproxy can be cured. The submission of the learned Counsel for the petitioneris that the learned District Judge has failed to appreciate that the objectionwas not regarding the defect in the proxy but the objection was that therewas no proper plaint before Court as it has not been signed by the Attorney-at-Law to whom the proxy has been given. But this distinction is only amatter of terminology. The alleged defect in the plaint is directly connectedto the defective proxy. The argument proceeds as follows. The proxy givento four Attorneys-at-law not practicing in partnership or in the capacity ofthe principal Attorney-at-Law and his assistants is bad in law. The plaintsigned by an Attorney-at-law named in the proxy other than the Attorney-at-law named first in the proxy is therefore bad in law.
It is a fact that the plaint has been signed by Attorney-at-law K.Sivaskandarajah one of the Attorneys named in the proxy. Thus it hasbeen signed by an Attorney on record. However, the proxy is defective forthe reason that it is in favour of four Attorneys-at-law. Therefore the realobjection flows from the defect in the proxy and if that defect is cured theobjection cannot be maintained.
There are instances where proxies which did not carry the name of theAttorney-at-law or the signature of the party were allowed to be rectified. InTreabyvs. Bawa(1) it has been held that the omissions to insert the nameof the Attorney in the proxy is curable. This case has been considered bythe learned District Judge. In Thilakaratna vs. Wijesinghe{2) the plaintiffhas failed to sign the proxy and it has been held that this omission wascurable.
CA
Siriwardena and Others i/s. John Keels Co. Limited
(Gamini Amaratunga, J)
93
It appears from paragraph 17 of the written submissions filed on behalfof the defendants in the District Court that the plaintiff has sought to revokethe proxy given to Attorney B. L. Abeyratna and has filed a fresh proxy inthe name of K. Sivaskandraja and some others. This is an indication thatMr. Sivaskandaraja had authority of the plaintiff to act on his behalf. It hasbeen held that the provisions of section 27 of the Civil Procedure Code arenot mandatory but only directory. Thilakaratna vs. Wijesinghe (Supra);Kadirgama Das vs. Suppiah (3) and Dias vs. Karavita(4). In Udeshi vs.Mather<5) Athukorale J has stated that in considering whether a partyshould be allowed to-cure a defect in the proxy,-the question to beconsidered is whether “the proctor had in fact the authority of his client todo what was done on his behalf although in pursuance of a defectiveappointment. If in fact his client had his authority to;do so, then the defectis one which, in the absence of any positive legal bar could be cured.”(page21) See also Paul Coir Pvt. Ltd., vs. E. C. J. Vass(6)
In this case there is no positive legal bar preventing the Court fromallowing the plaintiff to cure the defect in the proxy. In the writtensubmissions filed in the District Court on behalf of the defendants it isstated that since the action has been instituted in terms of section 247 ofthe Civil Procedure Code there is a time frame set out in the section. Thissubmission seems to suggest that if the plaintiff is allowed to rectify thedefect in his proxy, it has the effect of regularizing the defect in the plaintresulting in defeating the time bar.
However in this case, as I have already pointed out the plaint had beensigned by an Attorney- at-Law whose name appears in the defectiveproxy. The defect in the proxy is curable. It appears that the Attorney-at-law who had signed the plaint had the plaintiff’s authority to act for him. Inthese circumstances it is my view that the time limit set out in section 247is not a positive legal bar preventing the plaintiff from curing the defect inthe proxy. The learned District Judge has correctly identified the real basisof the defendant’s objection and has made his order according to law.
The defendants have cited number of cases where it had been held thatwhen there is a registered Attorney on record a party cannot himself performthe acts to be performed by the Attorney. Those cases have no relevanceto the present issue as they deal with a completely different question.There is no merit in this application and accordingly leave to appeal isrefused and the application is dismissed with costs fixed at Rs. 10,000.
Application dismissed
7-CM 6553