024-NLR-NLR-V-58-SYADU-VARUSAI-et-al.-Appellants-and-T.-WEERASEKERAM-et-al.-Respondents.pdf
Present : Sansoni, J., and H. N. G. Fernando, J.
SYADU VARUSAI cl ah, Appellants, andT. WEERASEKERAM el ah. Respondents
S. C. 399—D. C. Colombo, 2,S74
Postponement—Refusal by Court—Withdrawal of Counsel from proceedings
Propriety—Civil Procedure Code, s. S3.
When an application for a postponement is refused it is the duty of theCounsel, who made the application, to continue to appear for his client and toconduct tlio case which has been entrusted to him. The only instaneo where awithdrawal by him from the proceedings is permissible, and then too onlywith the leave of Court, is where ho has been retained only for tho limitedpurpose of making the application for postponement and such application isrefused by tko Court.
J^-PPEAL from a judgment of tho District Court, Colombo.
S. J. V. Chclvanayakam, Q.C., with C. Chellappah, for tho defendants-appellants.
Cyril E. S. Perera, Q.C., with S. IV. Jayasuriya, for the plaintiffs-respondents.
Cur. adv. vull.
February 9, 195G. S.vx-soxi, J.—
This is a partition action which was instituted in May, 1943. Tho-first trial took place in February and March, 1947 upon certain points ofcontest which were raised between tho plaintiffs and the Sth and 9th
t)0
defendants, and a decree for the sale of the premises in dispute was•entered in May, 19-17. The Sth and 9t-h defendants appealed againstthat decree and on September Sth, 1950, this Court set aside the judgment-of the District Judge and sent the case back in order that a certified copyof a last •will upon which the plaintiffs relied, and a certified copy of anaccount filed in a testamentary case which the Sth and 9th defendantsmoved to read in evidence, might be admitted. It was also ordered thatthe parties would bo entitled to lead any further evidence if they wishedto do so.
When the case wont back to the District Court it came up for trial onOctober 2nd, 1951. The plaintiffs’ Counsel moved for a postponementon tho ground that the witness who had given evidence on the title atthe previous trial had not been summoned, as it was thought that the-evidence already recorded would be acted upon. He asked for anopportunity to cite that witness, and stated that he was ready with t-he-other witnesses. Tho points in dispute were recorded afresh by the trialjudge and the evidence of one witness was led. In view of tho reasonsgiven by the plaintiffs’ Counsel, the defendants’ Counsel did not objectto a postponement and the Judge allowed it for those reasons. Thepoints of contest framed were substantially the same as those which hadbeen framed at the previous trial.
Eventually the case came up for trial again on Junc 6th, 1952. Counselfor the Sth and 9th defendants then produced a medical certificate andasked for a postponement on the gound that the Sth defendant, who wassaid t-o ho a material witness, was ill in India. The plaintiffs’counselobjected to the application and led the evidence of a witness who stated•that the Sth defendant had been seen in Colombo on 2nd June, after themedical certificate was said to have been issued. If this evidence wasbelieved there was every reason to suspect that the Sth defendant was not-in fact ill. The trial judge refused the. application for a postponementand directed that the trial should proceed. According to the record ofthe proceedings, Counsel for the Sth and 9th defendants then said thatho was unable to take pai-t in the further proceedings as ho had noinstructions with regard to the conduct of the case, and he would not beleading any evidence on behalf of the Sth or 9th defendants. Theplaintiffs’ Counsel then Jed afresh the cvidcnco of the witness who hadgiven evidence on the question of title at tho first trial. This witness wasnot cross-examined. Documents were read in evidence by the plaintiffs’Counsel, including a certified copy of- the last will which this Court hadby its order directed should be admitted. Xo evidence was tendered onbehalf of the Sth and 9tli defendants. The District Judge then gave hisjudgment- which was in ilie same terms as the judgment- given after thefirst trial.
The Sth and 9th defendants have appealed from this order. It wassubmitted pn their behalf (1) that- the learned Judge should have grantedthe application for a postponement, and (2) that he should have takeninto consideration the evidence which had been recorded at the first trial.
It was not suggested that on the fresh evidence led before him the learned-Judge could have come, to any other conclusion; nor was it suggested that
'Jiis findings would have been different oven if he had considered the-evidence led at the first trial. But-, these considerations apart, theattitude adopted by Counsel for both parties in the lower Court was that-evidence should bo led da novo, and the trial Judgo had approved of thisprocedure. It is, therefore, not open to tho Stli and 9th defendants to-argue now that the Court should have considered the evidence led at thefirst trial. I am therefore unable to see that there is any substance intho second point taken in appeal.
With regard to the first point, I do not think that the learnod Judge-on the materials placed before him when the application for a postpone-ment was made, could have made any other order in regard to the appli-cation. It must bo borne in mind that tho ease was sent back by thisCourt for a special purpose, namely, to enable each party to put in a-specified document, and to lead any further evidence if they wished to-do so. Tho 8th defendant had already given evidence at the first trialon the same points of contest. No application was made that suchevidence should be taken into consideration. If further evidence wasavailable, it should have been led at the trial, and the particular documentwhich the 8th and 9th defendants had sought to read in evidence shouldhave been tendered at the trial. None of these things was done or soughtto be done. The only reaction of the 8th and 9th defendants’ Counselto the refusal of the application for a postponement was a withdrawalfrom the proceedings. He did not even cross-examine the only witnesscalled to give evidence for the plaintiffs. It is too late now to complainif the Court decided the dispute on the evidence then placed before it. Itseems to me that the application for a postponement was unnecessary inthe circumstances, and if it had been granted the final decision of this-action would have been postponed for an utterly inadequate reason.
Tho duty lies on the Court to see that a postponement is not allowed-except “ for sufficient cause to bo specified in its written order ”, asdirected by S.S2 of the Civil Procedure Code; and an Appeal Court will bevery slow to interfere with an order refusing or allowing a postponement-,since the question of a postponement is a matter entirely within thediscretion of the trial Judge : see In re Yates’ Settlement Trusts 1. Manyeases have come before us recently where applications for the postpone- .jnent* of trials have been made and where, when such applications havebeen refused, the adv ocate or proctor making the application has, as amatter of course, withdrawn from the proceedings. Such conduct, itseems to me, is disrespectful to the Court and displays a lack of a duesense of responsibility. Another objection to such conduct is that thoclient, whom the advocate or proctor was retained to represent, andwhose interests he was in duty bound to protect, finds that his cause hasbeen abandoned.
This Court has consistently said that “when an application for apostponement is refused the party affected should nevertheless proceedto call what evidence is available to him, one reason being that after thisevidence is recorded it- may emerge in a stronger way to the tribunal thata postponement should be granted ”— per Cannon J. in Ramapitlai iv
(10SJ) 1 JJ L. II. SCI.
Zavier 1. The learned Judge also quoted with approval a passage fromthe judgment of Laj'ard C. J. in Fernando v. Andiris – where the learnedChief Justice said : “After the District Judge had refused to grant apostponement the plaintiff’s proctor should have called such evidence as-was available on behalf of the plaintiff, and should not have declined tocall any evidence. There being no evidence the order of the DistrictJudge dismissing the plaintiff’s claim is light. It would never do for this-Court to encourage parties in the Court below to decline to proceed with acase simply on the ground that the District Judge had refused to grant apostponement ”. Hutchinson C.J. and Wood Benton J. laid down thesame rule in Woulersz v. Car pen Chclty 3. They pointed out that when apostponement has been refused Counsel who made the ajjplication has noright to withdraw from the case without the consent of the Judge, andthat it is his duty as an advocate to proceed as far as he can with thisexamination of the witnesses called on the other side, and to adduce allthe evidence he has on his own side, and if it then transpires that the-evideiicc of a particular witness whose absence was the cause of theapplication being made was material, the trial Judge may at that stageallow a postponement.
As was pointed out by de ICretser J. in de Mel v. Gunasekera 4, when anadvocate or a proctor applies for a postponement on behalf of a party, theproceedings become inter paries because there is no such thing as alimited appearance, whether by Counsel or proctor or party. Counsel,therefore, or a proctor, should not withdraw from the proceedings oncehe has appeared, because the consequences to his client will be far-reachingif it be held ultimately that the application for a postponement wasrightty refused. His clear duty is, as has been laid down by this Court onmany occasions, to continue to appear for his client and to conduct thecase which has been entrused to him. The only instance where such awithdrawal by Counsel is permissible, and then too only with the leave ofCourt, is where Counsel has been retained onty for the limited purpose ofmaking an application for a.postponemcnt and such application is refusedby the Court. But such a position should not have arisen in the actionwith which this appeal is concerned because it had come up for trialpreviously and the same Counsel, had appeared for the Sth and Othdefendants on previous trial dates. If the Sth and 9th defendants’proctor failed to instruct Counsel adequate^' on the trial date inquestion, he should have been prepared to conduct the case himselfwhen the judge ordered that the trial should proceed. His failure to doso cannot place his clients in a better position as regards the plaintiffs.
For these reasons I would dismiss this appeal with costs in both Courts.
Jf. N- G. Ieuxaxdo, J.—I agree.
Appcal dismissed.
a {1907) 3 Bat. 197.
* (1939) 41 X. L. R. 33.
• (194G) 47 X. Tj. R. 2St2 {l90S) 3 A. G. R. 140.