024-SLLR-SLLR-2006-V-3-SUMANASEKERA-vs.-YAPA.pdf
CA
Sumanasekera vs.
Yapa
183
SUMANASEKERAVSYAPACOURT OF APPEAL.
IMAM, J.
SRISKANDARAJAH. J.
CALA 362/2002 (LG).
DC KANDY 26432/MR.
JULY 13, 2005.
Civil Procedure Code, Sections 754 (4), 755(2), 755(3), 755 (4), 759-Couldthe notice of appeal be sent to the Counsel and not to the RegisteredAttorney? – Respondent materially prejudiced ?
Judgment was given in favour of the plaintiff-respondent. Thedefendant-petitioner filed notice of a'ppeal and petition of appeal withintime. The plaintiff-respondent took up a preliminary objection before theDistrict Court that, the notice of appeal had been given to the Counsel ofthe plaintiff-respondent and not to the Registered Attorney. The DistrictJudge upheld the objection.
On leave being granted –
HELD:
The authorities make it mandatory that the notice of appeal andpetition of appeal have to be signed by the Registered Attorneyand actual notice sent to the Registered Attorney-section 755 (2)(b). These provisions are imperative.
The petitioner has not shown any good and sufficient ground fornot complying with section 755(2)(b) and as the respondent hasbeen materially prejudiced by such non compliance the petitioneris not entitled to relief under section 759.
APPLICATION for leave to appeal from an order of the District Court ofKandy, with leave being granted.
Cases referred to ;-
Martin vs Suduhamy 1991 1 Sri LR 281
Fernando vs Sybil Fernando 1997 3 Sri LR 1
Agiris Appu vs David Appu 6 NLR 223
Silva vs Cumaratunga 40 NLR 139
2 -CM 8432
184
Sri Lanka Law Reports
(2006) 3 Sri L R
Perera vs Perera 1981 2 Sri LR 44
Mahatun Mudalali alias Paranatota vs N. A. Naposingho 1986 3CALR 318
Manamperi Somawathie vs Buwaniswari 1996 1 Sri LR 293
Keerthiratne vs Udenl Jayasekera 1990 2 Sri LR 346
Municipal Council vs Piyasena 1980 2 Sri LR 39
Wasantha Wijewardane for defendant – petitioner.
M. G. Dissanayake for plaintiff – respondent.
Cur. adv. vult.
February 8, 2006IMAM, J.
This is an application by the Defendant – Petitioner (hereinafterreferred to as the 'Petitioner') to set aside the order dated 29.08.2002made by the District Judge of Kandy in Case No. 26432 MR, for costs,and inter-alia for other reliefs as prayed for in the Petition. Leave toAppeal was granted on 13.09.2004 to the Petitioner with regard to thequestion whether the Petitioner was entitled to relief under the provisionsof section 759 of the Civil Procedure Code.
The facts of the case are briefly as follows. The Plaintiff-Respondent(hereinafter referred to as the 'Respondent' filed action in the DistrictCourt of Kandy and sought damages from the Petitioner for maliciousprosecution. After trial the learned District Judge gave Judgment infavour of the Plaintiff-Respondent and awarded damages in a sum ofRupees one hundred thousand (Rs. 100,000) on 22.01.2002. Thepetitioner filed notice of appeal dated 31.01.2002 and petition of Appealon 21.03.2002. Meanwhile the respondent took up a PreliminaryObjection that Notice had been given to the counsel for the Respondentand not to the instructing Attorney as required in accordance with theprovisions of the Civil Procedure Code. On 29.08.2002 the learnedDistrict Judge upheld the objection and made order dismissing theappeal. This application arises from this order (P3).
It is averred by the Petitioner that the learned District Judge hasconfused himself as to the requirements of section 24 of the CivilProcedure Code pertaining to the due appointment of an Attorney-at-Law and the requirement under section 755(2) as to the service ofcopy of the Notice of Appeal on the Respondent or his registered
CA
Sumanasekera vs.
Yapa (Imam, J.)
18S
Attorney-at-law. The Petitioner referred to Martin Vs Suduham/1) whereit was held by His Lordship Kulatunga, J that the rejection of a Noticeof Appeal signed by an Attorney-at-Law other than the RegisteredAttorney at Law is a result of non compliance with section 24 of theCivil Procedure Code. The Petitioner points out that His LordshipKulatunga, J further observed that the power vested with the Court ofAppeal to grant relief under section 759 (2) envisages even thepreparation and signing of the Notice of Appeal. The Petitioner contendsthat on a plain reading of section 754(4) and 755(3).the Court couldrefuse to accept the Notice of Appeal and the Petition of Appealrespectively for failure to comply with the requirements of these twosections. The Petitioner however avers that the cumulative effect isthat the District Court can refuse to receive a Notice of Appeal or aPetition of Appeal only when the Appellant fails to adhere to time limits.The Petitioner further submits that nevertheless if the failure is notdeliberate and no prejudice is caused to the Respondent, even if noplausible explanation is forthcoming relief could be granted. ThePetitioner further contends that in this case although Notice of Appealhad been sent to the counsel and not to the registered Attorney-at-Law of the Respondent, the Respondent had been informed possiblyby the Counsel, and hence no material prejudice had been caused tothe Respondent.
It is the contention of the Plaintiff-Respondent that the matter foradjudication in this application is whether the provisions of section755(2)(b) of the Civil Procedure Code are imperative and whether anAppellant should comply with the same. Section 755(2)(b) states that,"The Notice of Appeal shall be accompanied by proof of service, on theRespondent or on the Registered Attorney, of a copy of the Notice ofAppeal in the form of a written acknowledgement of the receipt of such
Notice"Thus the Appellant is compelled to serve a
copy of the Notice of Appeal on the Respondent or on the RegisteredAttorney of the Respondent. The Respondent avers that although theRegistered Attorney of the Respondent was Mr. Wimalawan, Attorneryat-law, the Notice of was sent to Mr. Dhammika Hettihewagewhowasthe counsel instructed by Mr. Wimalawan at the trial. The Respondentsubmits that this is in absolute disregard to the provisions of section755(2) (b) to which the Appellant has not offered any explanation as towhy he did not comply with the imperative provisions of Law. Hencethe Respondent submits that the order of refusal by the learned District
186
Sri Lanka Law Reports
(2006) 3 Sri LR.
Judge to entertain the Appeal is correct. The Respondent referred toFernando Vs Sybil Fernando™ where the Supreme Court held that"The concept of the Laws of Civil Procedure being a mere vehicle inwhich parties should be safely conveyed on the road to Justice ismisleading, for it leads to the incorrect notion that the Laws of CivilProcedure are of relatively minor importance, and may, therefore bedisobeyed and disregarded with impunity."
On a perusal of the Notice of Appeal Postal receipt and proxy it ismanifestly clear that although the registered Attorney of the Respondentwas Mr. Wimalawan Attorney-at-law, the notice and Petition of Appealwas sent to Mr. Dhammika Hettihewage who was the counsel instructedby Mr. Wimalawan at the trial. Thus the Appellant has not acted inconformity with section 755(2)(b) of the Civil Procedure Code, nor hashe offered any explanation for his lapse. It was held in AgirisAppu VsDavid AppiP* that a Proctor who has filed a proxy for a client cannotdelegate his Authority to another proctor, and a Petition of Appealsigned by another proctor on behalf of the Registered proctor is invalid.
In Silva Vs Cumarathunga(4) it was decided that a petition of Appealmust be signed by the proctor whose proxy is on record at the date onwhich the Petition is filed, and that when the petition is not so signedthe Appeal should be rejected and that the Supreme Court has nopower to give relief.
In Perera vs Perera(5) it was held that under the provisions of section755(3) of the Civil Procedure Code the Petition of Appeal shall be signedby the Appellant or his Registered Attorney and so long as there is aProxy on record it is only the Registered Attorney who has the authorityto sign the Petition of Appeal.
It was decided in Mahatun Mudalali alias Parantota Vs N. A.NaposinghoW that by 'Notice' is meant actual notice and not someconstructive Notice and that mere compliance with section 755(1) mayat the most constitute constructive notice. Actual notice meanscompliance with section 755(1), (2) and section 754(4) regarding thetime within which the Notice of Appeal must be presented. Theserequirements it was held are Mandatory to constitute a proper Notice
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Sumanasekera vs.
Yapa (Imam, J.)
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of Appeal, and if not fulfilled, the Court has the power to refuse toreceive the Notice of Appeal.
In Manamperi Somawathie vs Buwaneswarim it was decided that aparty appellant could present a Notice of Appeal personally and signthe Petition of Appeal only when there is no Registered Attorney of hison record at the relevant time. It was held in Keerthiratne Vs UdenaJayasekeraw that the filing of a Notice of Appeal must be followed bypresentation of the Petition of Appeal within 60 days, both steps beingimperative and mandatory, the responsibility of which is cast on theAttorney-at-Law on record and not on the Petitioner.
In Municipal Council of Colombo Vs Piyasenam it was concludedthat the Defendant-appellant's application to be given relief under section759(2) of the Civil Procedure Code was not entitled to succeed as nogood and sufficient ground had been established for the granting ofsuch relief.
In the present case the copy of the Notice and Petition of Appealhad been served on Mr. Dhammika Hettihewage the counsel, and noton Mr. Wimalawan the registered Attorney of the Respondent. Theauthorities rererred to earlier make it mandatory that the Notice andPetition of Appeal have to be signed by the Registered Attorney, andactual notice sent to the registered Attorney, under section 755(2)(b).However the Appellant has not acted in conformity with section 755(2)(b)as the Actual Notice was sent to the counsel for the respondent Mr.Hettihewage, and not on the Registered Attorney-at-Law Mr.Wimalawan. As it is my view that the provisions of section 755(2)(b) ofthe Civil Procedure Code are imperative, I see no reason to interferewith the aforesaid order of the Learned District Judge dated29.08.2002(P3). The Petitioner has not shown any good and sufficientground in not complying with the provisions of section 755(2)(b) of theCivil Procedure Code, and as the Respondent has been materiallyprejudiced by such non compliance the Petitioner is not entitled torelief under section 759 of the Code. For the aforesaid reasons I dismissthe Appeal of the Petitioner without costs.
SRISKANDARAJAH, J. -1 agree.
Appeal dismissed.