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1903.TREA.BY «. BA.WA.
July 16 ctnd
I7-C. B., Batticaloa, 8,700.
Proxy—Imperfection of, for want of entry in it of proctor'e name—Authority ofproctor to file plaint.
The plaintiff having, by an oversight, omitted to insert in the proxywhich he had signed the name of the proctor whom he employed to appearbefore the Court and conduct his case, and the defendant having objectedin his answer to the maintenance of the action against him:
Held, thatthe proper courseto adoptin sucha case was not to order
’ the plaint tobe taken off thefile andcasttheplaintiff in costs, but to
supply the omissions then and there and proceed with the case in' duecourse.
HE following order of the Commissioner (Mr. H. 0. Fox)explains the facts of the case: —
"The plaint filed is signed by Mr. Suppramaniam as -proctor forplaintiff. Thefirst objectionraisedintheanswer is that the
plaintiff’s proxy does not authorizeMr.Suppramaniam to bring
and maintain this action.
"On examining the proxy I find that, though signed by plaintiff,it neither named Mr. Suppramaniam or the Court before which heis to appear to maintain tEs action. It is signed 7th January,1903; and under the same date the initials ‘C.S.’ have been writtenon the atamp affixed to the proxy.
“The signing and filing of the plaint are acts which only aproctor duly appointed by the plaintiff is entitled to do.
“ The proxy certainly does not duly appoint Mr. Suppramaniamto be proctor for plaintiff.
“The defect cannot be considered to have been waived by anyacquiescence Etherto in Mr. Suppramaniam’s appearance asproctor for plaintiff, nor can it be cured by amendment at thisstage.
"I order that the plaint be taken off the file. Plaintiff to paydefendant’s costs as well as his own.”0
The plaintiff appealed. The case was argued on 16th July, 1903.Browne, for appellant.
Bdcuwantudaipe', for respondent.
«.Cur. adv. vult.
17th Julv, 1903. GkENiER, A.J.—
The proceedings before me are very'remarkable, and I canhardly believe that the fact of the proxy on question not contain-ing Mr. Suppramaniam’s name should have formed the subject
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of a solemn discussion in the Court below. The plaintiff, byan oversight and nothing more, appears not to have inserted thename of Mr. Suppramaniam in the body of the proxy, althoughMr. Suppramaniam had admittedly acted for him as his proctor sofar. Instead of the Commissioner then and there asking theplaintiff to rectify the omission by the insertion of Mr. Supprama-niam’s name, he has ordered the plaint to be taken off the file onan objection pressed by defendant’s counsel. He should not havelistened to such an objection, because it was quite within hispower, without any prejudice whatever to the defendants, to>accede to Mr. Suppramaniam’s request, made both on the 5thFebruary and on the day of trial, that the plaintiff may be allowed'to insert his name in the proxy, the plaintiff himself being willing,presumably, to do so on both occasions.
The order appealed from must be set aside, and the case sentback for trial, with liberty to the plaintiff to insert Mr: Suppra-maniam’s name in the proxy. I remark that in the answer filedby the defendants no mention whatever is made of the omission.The Commissioner seems to have thought that the point wasinvolved in the first issue of law raised by the defendants in theiranswer. I do not think so. The defendants will pay the costs ofthis appeal and the costs of the day in the Court below.
July 16 and17.
TREABY v. BAWA