125-NLR-NLR-V-61-THE-ATTONEY-GENERAL-Appellant-and-A.-W.-SILVA-Respondent.pdf
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SINNETAMBY, J.—Rrishnapitl ai v. Inspector of Police, Crimea
1959 Present: Weerasooriya, <J., and H. N. G. Fernando, 3.THE ATTORNEY-GENERAL, Appellant, and M. W. SILVA,
Respondent
S. C. 366—Application for an extension of time to print the record fortransmission to the Privy Council in S. C. 785 D. C. Colombo
34746IM
Proctor-—Requirement of proxy—Replacement of Proctor on record by a Proctor
toiikout a proxy—Permissibility—Appellate Procedure {Privy Council) Order,
1921, Paragraphs 6, 11, IS—Civil Procedure Code, ss. 25, 27.r
Even assuming that an unsigned proxy in favour of a Proctor may hesubsequently rectified, a complete omission to file the act of appointment ofa Proctor within the prescribed time cannot be subsequently supplied.
In terms of Paragraph 6 of the .Appellate Procedure (Privy Council) Order,1921, a party appealing to the Privy Council had, on 5th December 1958,appointed Proctor S to act for him in connection with the proceedings in theSupreme Court. On 28th April 1959 the Supreme Court had granted anextension of time until 28th July 1959 for the purpose of printing the record,of the case. The present application for further extension of time was filed on18th July 1959. It was filed and signed, not by Proctor S, but by Proctor L,and was heard by Court on December 21, 1959. Objection was taken on-behalf of the respondent that at the rime of the filing of the present applicationno document had been filed appointing Proctor L to act for the appellant.
El eld, that the failure to file the appointment of the new Proctor precludedthe Supreme Court from entertaining the application filed by him and that thedefect could not be cured by the appointment being filed after the applicationwas made.
H. N. Q. FEBNANDO, J.—The Attorney-General v. Silva601
A
-L. APPLICATION for an extension of time to print the record of a casefor transmission to the Privy Council.
J.W. Sitbasinghe, Crown Counsel, for the defendant-petitioner.
R. S. R. Coomaraswamy, with Neville Wijeratne and M. Amera-singham, for the plaintiff-respondent.
Cur. adv. wit.
December 21, 1959. H. N. G. Pesenastdo, J.—
This is an application under Paragraph 18 of the Appellate Procedure(Privy Council) Order, 1921, for an extension of the time allowed byParagraph 11 of the same Order for the printing of the record of thecase for the purposes of transmission to the Privy Council. On 28thApril 1959, this Court had granted an extension of time for printing until28th July 1959, and, in anticipation of further time being required,the present application for further extension was hied in this Court on18th July 1959.
The party making the present application, who is also the appellantin the proposed appeal to the Privy Council, is the Attorney-General.In terms of Paragraph 6 of the Order mentioned above, there had beenfiled in the Registry of this Court an instrument dated 5th December1958 by which the appellant appointed Proctor A. H. M. Sulaiman to,act for the appellant in connection with the appeal.
The present application has been filed and signed, not by Mr. Sulaimanbut by Proctor S. C. 0. de Livera, and the objection has been takenthat at the time of the filing of the application no document had beenfiled in terms of Paragraph 6 appointing Mr. de Livera to act for theAttorney-General in connection with the appeal. Counsel has argued inaddition, that, in conformity with section 27 of the Civil Procedure Code,leave of Court should first have been obtained for the revocation ofthe proxy previously held by Mr. Sulaiman and that a proxy in favourof Mr. de Livera should have been filed under Paragraph 6 either before,or contemporaneously with, the present application.
It seems clear that, if an appellant desires to be represented by aProctor, other than the one whose act of appointment has previouslybeen filed in terms of Paragraph 6 or the one who by implication isrecognized by that Paragraph as the party’s Proctor for the purposes ofthe appeal, a document appointing the new Proctor must be filed underthat Paragraph. In the absence of such a “ new ” appointment, neitherthe Registrar nor the Court, nor the opposing party, can be expectedto regard any act or application of a “ new ” Proctor as being verilydone or made on behalf of the appellant. Indeed a proxy in his favouris a sine qua non to enable any Proctor to take any step on behalf of alitigant in a civil action. The only question for our decision is whetherthe failure to file the appointment of the new Proctor absolutely pre-cludes this Court from entertaining an application filed by him, or whether
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H. N. G-. 'FERlsASTDO, J.—The Attorney-General v. SHva
on. the other hand the defect can. be cored by the appointment beinghied after the application is made. In the present instance, the revoca-tion of the proxy of Sir. -Sulaim&nr, -and- an. appointment in favour ofMr. de lavera, were filed with the Registrar on 14th August 1959.
Grown Counsel has sought to rely on the decision in Aitken, Spencede Co. v. Fernando1. In that case, there had been a reference to arbitra-tion under section 676 of the Code signed by the Proctors for the plain-tiffs on record; the Proctors purported to act by virtue of a specialauthority referred to in that section. But the special authority had, inrelation to some of the plaintiffs, been signed not- by themselves but bythe holders of their powers of attorney. In an appeal against the award,the objection was taken that these powers of attorney or copies thereofhad not been filed in Court as required by section 25 (6) of the Code,and that the reference to arbitration was bad for that reason. Duringthe course of the argument in appeal, the Court (Bonser, C.J. and Mon-crieff, J.) intervened to express the opinion that the powers of attorneymay be filed at any stage of the case. The Court’s reasons for thisopinion were not stated in the judgment, and I am therefore not in aposition to consider whether their reasons would be applicable in a casewhere there has been a failure to file, not a power of attorney to arecognized agent, but the appointment of a Proctor for a party.
A decision more directly in point is that of TUlekeratne v. Wijesinghea.In that case, the plaintiff’s action had been dismissed in the lower Courton default of his appearance, and on appeal to this Court it was dis-covered that the prosy in favour of the plaintiff’s Proctor, though dulyfiled in the lower Court, had not been signed by him. The Court inrejecting the contention that an unsigned proxy was void made thefollowing observations :—
“ Section 27 enacts that ‘the appointment of a proctor to make anyappearance or application or do any act as aforesaid shall be in writingsigned by the client and shall be filed in Court.’ In my opinion thatis only directory. If a plaintiff appearing throughout the action bya proctor, whom he has instructed to act for him, but whose prosyhe had forgotten to sign, were to recover judgment, and if the omissionto sign were tben discovered and the proxy signed, the Court couldnot, in my opinion, hold that the whole of the proceedings on thepart of the plaintiff up to and including the judgment were voidbecause of the non-signature of the proxy ; or, if the plaintiff failedin the action and it was dismissed with costs, the Court could not holdthat the decree under such circumstances was of no effect against theplaintiff. No doubt the enactment means, though it does not interms say so, that the appointment is to be signed and filed beforethe proctor does anything in the action. But if the omission to signis not because the proctor has not in fact any authority, and if theclient afterwards ratifies what, has been done in his name by signingthe authority, in my opinion that satisfies the requirements of theenactment ”.
1 {1900) 4 N. L. B. 35.
® {1908) 11 N. L. B. 270.
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H* 2T. G. "FEBNA^TDO, J.—The Attorney-General v. Silva
It has to be noted that the construction placed on sections 25 and 27of the Code in these two decisions were in the nature of obiter dicta, forin each instance the party taking the objection was in any event successfulon other grounds. Moreover, in each of them, the default was notnoticed or relied on in the lower Court, but only at the hearing of theappeal. The decisions are therefore not clear authority for the proposi-tion that a defendant on being served with summons cannot successfullyobject to the exercise of the Court’s jurisdiction on the ground that aproxy or power of attorney has not been duly signed or filed.
In Kadirgamadas et dl. v. Suppiah et ol.1 there had been an actionby the plaintiff against two defendants. The original plaintiff and theoriginal first defendant both died after the institution of the action.An order had been made on 4th June 1951 substituting five persons inplace of the deceased plaintiff, but this order was subsequently set asideon 4th April 1952 by another Judge who instead substituted one Suppiah.In place of the deceased first defendant, certain other defendantsincluding the former second defendant had been substituted. It wouldappear however that although the original second defendant had signeda proxy in favour of Proctor Nalliah., the other defendants who weresubstituted in place of the deceased first defendant had not signed aproxy in favour of Mr. Nalliah or any other Proctor, at the proper time.On 25th April 1952 a petition of appeal was filed, on behalf of all thedefendants, against the order for substitution made on 4th April 1952.At the hearing of the appeal a preliminary objection was taken on theground that Mr. Nalliah had no authority to sign the petition of appealon behalf of those defendants who had not by that time executed a proxyin his favour. In fact such a proxy had been filed only on 8th May1952, i.e. after the appealable time had expired.
Nevertheless Gunasekara, J., held that the irregularity in the appoint-ment of Mr. Nalliah had been cured by the subsequent filing of the proxyin his favour. This opinion was to a great extent based on the viewtaken in TiUekeratne v. Wijesinghe 2 that the requirements of section27 of the Code are merely directory. But the learned Judge wascareful to point out that from 16th November 1951 until 21st March1952 Mr. Nalliah had acted on behalf of all the defendants in connectionwith the application for substitution ultimately decided on 4th April1952, the order upon which was the subject of the appeal. He alsoreferred to the case of Silva v. Cumaratunga 3 where it had been heldthat if there is a Proctor on record, the petition of appeal must be signedby him because “ this Court cannot recognize two proctors appearingfor the same party in the same cause”. It seems to me that the decisionin Kadirgamadas et dl. v. Suppiah et al.1 does -not assist the appellantin the present application for two reasons :—firstly the proxy filed in thatcase after the date of the petition of appeal was entertained partly atleast because the Proctor had previously functioned without objectiontaken that he lacked a proxy, and secondly that decision recognized theprinciple that a Proctor on record cannot be replaced by a Proctorwithout a proxy. To entertain the present application which was made1 (1953) 56 N. L. S. 172.* (1908) 11£. B. 270,
3 (1938) d0 N. L. B. 139,
504H. N. G. 'FERN'AITDO, J.—The Attorney-General v. Silva
by Mr. de Idvera at a time when the “ current ” appointment tinderParagraph. 6 of the Appellate Procedure (Privy Council) Order, 1921,was in favour of Mr, Sulaiman, would be to act contrary to that principle.
If a plaintiff in default" can be permitted to rectif^Eis omission evenwhen the default is pointed out at the earliest possible time, and doesnot in such an event have to file a fresh plaint, decisive consequencesnsay follow. For example, although rectification may take place at a timewhen the cause of action sued upon has beeome prescribed, the factthat the plaint was filed within time will render the action neverthelessmaintainable. Similarly, if one were to consider the case of an appealto the Privy Council, which must be filed within 30 days of the date ofthe judgment of the Supreme Court: suppose the application for leaveto appeal is filed within time by a Proctor, but no instrument of hisappointment is filed within the 30 days under Paragraph 6 of the Order,can it be held that the application for leave has been duly made if, afterobjection taken by the respondent, the omission to file the appointmentis rectified at some subsequent date 1 It seems to me that in such anevent the respondent can properly maintain that there has been no dueapplication for leave to appeal. Even if the decision in TUleheratne v.WijesingJte1 has to be followed, that wonld mean only that an unsignedact of appointment can be subsequently rectified, but not that a completeomission to file the act of appointment can be subsequently supplied.
If we were now to decide that applications of the present kind can beentertained although made by Proctors in respect of whom the requisiteacts of appointment have not been filed previously or contemporaneously,we would be providing a dangerous precedent for the excuse of lapseson the part of Proctors and parties in complying with the procedure setout in the various enactments concerning appeals to the Privy Counciland applications connected therewith.
I would refuse the application with costs fixed at Rs. 157/50.Weerasoobtya, J.—I agree.
Application refused.
1 {1908) 11 N. L. BS270.