068-NLR-NLR-V-59-THE-GENERAL-INSURANCE-CO.-Petitioner-and-T.A.-DON-ABRAHAM-Respondent.pdf
2S2 BASJTAYAKB, C.J.—The General Insurance Co., Did. v. Don Abraham' •
1957Present : Basnayake, C.J., and Pulle, J.THE GENERAL INSURANCE CO., LTD., Petitioner, and .
.T. A. DON ABRAHAM, Respondent
S. G. 213—In the matter of an Application under Section 769 of. the Civil Procedure Code to relist the Appeal in S. G. 139.D. C. Colombo 27,523 (F)
Appeal—“ Dismissal for non-appearance ”—Application jor reinstatement—CivilJ’rorcdure Code, as. 768, 769.
In tliis application to reinstate an appeal v.-hich had been dismissed undersection 7G9 of tho Civil Procedure Code for non-appearanco—
J-Jfld, (i) that an appeal “ comes on for hearing ” within tho meaning ofsection 70S of the Civil Procedure Code although it has been listed withoutregard to tho order of its position on the roll of causes.
(ii) that appeals “ come on for hoaring ” within tho meaning of section 7G0of the Civil Procedure Code even when they are first called in the order in whichthey are bn the day’s list before Counsel are called upon to make their sub-missions. If, at that time, an appellant or his Counsel is not present when hisappeal is called, tire appeal is liablo to bo dismissed for non-appearnnee.
APPLICATION for the reinstatement of an appeal.
jB. Wikramanayalce, Q.C., with C. Renganathan and D. R. P.Goonclillekc, for Petitioner.
II. V. Perera, Q.C., with M. Hussain, for Respondent.
Cur. adv. vult.
October 16, 1957. Basnayake, C.J.—
This is an application under the proviso to section 709 (2) of the CivilProcedure Code for the reinstatement of the appeal in S. C. 139 (F)—
C. Colombo 27,523/M dismissed under that section as the appellantdid not, when the appeal came on for hearing, appear either by counselor in person. This application is opposed by learned counsel for therespondent who maintains that the appeal has been rightly dismissed.
The action in which this appeal has been preferred was instituted on3rd November 1952. Tho petition of appeal was presented on 6thAugust'1955, was received in the Registry of this Court on 22nd February1956, and was listed for hearing on 16th May 1956 and 1st August1956. On the latter date as neither ths appellant nor his counsel appearedwhen the appeal came on for hearing it wa^ dismissed with costs', counselfor the respondent being present. It was later on the same date re-instated, on the application of counsel for the appellant, without objection
13-ASM-AY A KE, C-J-—The Goner'll Insurance Co.. Ltd. v. Dm Abraham
2-33
from counsel for the respondent. After its reinstatement the appealagain came on for hearing on 2nd October 1956, 14th November 1956,11th December 1956, and 7th February 1957. On the last mentioneddate it was again dismissed with costs as neither the appellant nor hiscounsel appeared, when the appeal was called by the Clerk of Appeal.On this occasion too counsel for the respondent was present. At 2.15in the afternoon of the same day counsel for the appellant appearedand applied again for reinstatement of the appeal.
The following order was made on his application..
“ ]Mr. P. Somatilakam ajDpears at 2.15 and states that he was held upin another Court and was unable to be present at the time the abovecase was called and was dismissed with costs. Ho submits that heappears for the appellant and moves that the case be restored to the list.
“ Mr. H. V. Perera who aj>pears for the respondent states that he isunable to consent to the appeal being relisted as his client who wasin Court is aware of the result of the case and his Proctor has beengiven the receipt for the fees paid to counsel.■
“ Mr. S. J. Kadirgamar’s appearance is noted on the list, but Mr.Somatilakam states that Sir. Kadirgamar was the original counselretained in the case but has since surrendered his brief. We informSir. Somatilakam that wo are prepared to issue notice on the respondenton condition that the appeal will be relisted only if the respondentconsents to it, but, in any event if the application is allowed or refusedthe appellant will have to pay the respondent’s costs. Sir. Soma-tilakam agrees to the issue of notice on the respondent on those condi-tions. We accordingly direct that notice be issued on the respondent.”
The appellant has since filed a statement from his counsel to the effectthat liis engagements in tho other divisions of this Court prevented hisattendance at the time this appeal was called by the Clerk of Appealin this Court. It is not unusual for counsel to be actually engaged inone division of the Appeal Court when a case of his in another divisionis called on for hearing. Recognising this fact the Judges of this Courthave mad;: the following Standing Order :
“When a case is called and counsel-engaged therein is unable toattend and an application in that behalf is made by another counsel,the ease will be allowed to go to tho bottom of tho list. If no applica-tion is so made the appeal will be dismissed with costs. If a case soplaced at tho bottom of the list is again reached and counsel thereinis not present and no sufficient cause for adjournment is shown byanother counsel the appeal will bo dismissed with costs.”
Learned counsel for the appellant does not seem to have taken advantageof this Standing Ordt r for if he did his appeal may not have been dismissedon cither occasion.''.• .
" Learned counsel for tho petitioner also contended that tho appealhad not been listed in the manner prescribed by vection 768 of tbe Civil
284
Baptiste v. Selvarajah
Procedure Code and that -when the order of dismissal was made it had notcome on for hearing as contemplated in section 769 (1) of the Civil Pro-cedure Code. The present procedure for listing of appeals has beenin existence for a number of years and is well established and well knownto counsel who piactise in the Appeal Court though it is not strictlyin accordance with section 768 of the Code. I do not think that it can besaid that the appeal did not come on for hearing on the day. it was dis-missed a second time merely because the appeal had not be’n listedin the order of its position on the roll. He also made a point of the factthat in this division the appeals are first called in the order in whichthey are on the day’s list before counsel are called upon to make theirBubmissions. He submitted that when an appeal is thus called it cannotbe said to come on for hearing as contemplated in section 769 (1). I amunable to accept that submission of counsel for the petitioner. .
For the piupose of section 769 an appeal “ comes on for hearing ”each time it is on the daily list. If the appellant or his counsel is notpresent when the appeal is called in Court whether for the purpose ofhearing the submissions of counsel or for. any other purpose, it is liableto be dismissed.
Tlie application is refused with costs.
Police, J.—I agree.•
Application re]used.