041-SLLR-1984-V1-SARAVANAPAVAN-v.-KANDASAMYDURAI.pdf
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Sri Lanka Law Reports
[1984} 1 Sri L.R.
SARAVANAPAVAN
v.KANDASAMYDURAI
COURT OF APPEAL,
SENEVIRATNE, J., ABEYWARDANE, J. AND MOONEMALLE. J.
C.A. APPLICATION No. L.A. 72/81 – D. C. JAFFNA No. 2181/MISC’.; S.C. No.2/78 – D.C. JAFFNA No. L/673.
FEBRUARY 7,1984.
Civil Procedure Code, sections 764 (2), 756 (2) and (4) – Leave to appeal -Validity ofproxy filed in Court of Appeal by Attorney-at-law who was not the registeredAttorney-at-law in the District Court proceedings – Cursus curiae.
Where the questions were whether in an application for leave to appeal filed undersection 754 (2) read with section 756 (2) in the Court of Appeal, the proxy of theAttorney-at-law who was not the registered Attomey-at-law who appeared for the partyin the District Court is valid and whether such new Attorney-at-law will fall within thedescription of 'registered attorney' referred to in section 756 (4) of the Civil ProcedureCode and accordingly whether the leave to appeal applications were properly beforeCourt.
Held—
A leave to appeal application is a step in the proceedings of the original court butaccording to section 756 (4) it originates in the Court of Appeal. Hence the proxy in anapplication for leave to appeal can be filed either by the registered attorney who filedproxy in the lower court or by any other attorney. Further, there is a long standingpractice for an attorney not necessarily the registered attorney in the lower court to fileproxy in the Court of Appeal.
This is a long standing and reasonable practice which has grown up since 1974 whenthe Administration of Justice Law. No. 44 of 1973, came into force, in the interests ofthe diligent and expeditious conduct of proceedings. The practice causes no prejudiceand involves no breach of the provisions of the Civil Procedure Code and it has nowbecome a cursus curiae.
Cases referred to
Gunasekera v. de Zoysa (1951} 52 N.L.R. 357.
Bank of Ceylon v. RamasamyC. A. L.A. 79/80 (D.C. Chavakachcheri 5447); C.A.Minutes of 24.3.1981
Silva v. Kavanihamy, (1948) 50 N.L.R. 52. 56, 57.
CA
Saravanapavan v. Kondasamydurai (Seneviratne, J.)
269
APPLICATION for leave to appeal referred to Bench of three Judges by the President ofthe Court of Appeal.
K. Kanaga Iswaran for plaintiff-petitioner-appellant in C.A. Application L.A. 72/81.
N. Sinnathamby for defendant-respondent in C.A. Application L.A. 72/81.
P Naguleswaran for 2nd. 3rd and 4th plaintiff-petitioner-appellants in C.A. L.A. 2/78.No appearances for intervenrent-respondent in C.A.L.A 2/78
Cur. adv. vuff.
March 28. 1884.
SENEVIRATNE, J.
The President, Court of Appeal, has referred to this Bench theconsideration of the following matter: Whether in a Leave to AppealApplication filed in this Court under section 754 (2), read with section756 (2) of the Civil Procedure Code, a proxy filed by anAttorney-at-law, who is not the petitioner-appellant's Attorney in theoriginal Court can be a valid proxy and as such constitute a valid Leaveto Appeal Application. The consideration of this issue has arisen asfollows In D C. Jaffna M/2181 the Attorney for the plaintiff wasMr. S. Kanagasabapathy, In L.A.72/81 Leavejo Appeal Applicationthe Attorney for the plaintiff-appellant is D. M. Swaminathan, In D.C.Jaffna Case No. L/673 the Attorney for the plaintiff was T.Sangarapillai. In the Leave to Appeal Application.filed in this Court theAttorneys-at-law for the plaintiff-petitioner-appellant are C. M.Chinnaiya and Tavalaxmy Chinniah. fn both these applications,objections have been taken that the Leave to Appeal Applications arenot properly constituted. The Attorneys, who had filed theseapplications are not the Attorneys for the respective parties in theOriginal Court.
Section 756 (2) is as follows
"Every application for Leave to Appeal against an order of Courtmade in the course of any civil action, proceeding or matter, shall bemade by petition duly stamped addressed to the Supreme Courtand signed by the party aggrieved or his registered attorney. …"The answer to the question posed to this Court depends on theinterpretation this Court will place on the words "his registeredattorney".
As regards section 756 (2), Mr. Kanaga Iswaran submitted that theterm "registered attorney* can be the registered attorney in theoriginal Court or an attorney who filed proxy for a party in this Court, inwhich the Leave to Appeal proceedings originate. Mr. Kanaga Iswaranbased this latter submission on the decision in the case of Gunasekera
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v. de. Zoysa (1) which laid down the principle that an application inrevision to the Supreme Court in a civil case can be initiated by aproctor other than the proctor whose proxy was filed in the lowercourt. Mr. Kanaga Iswaran also relied on the decision pertaining to thismatter made by the Court of Appeal in Bank of Ceylon v. Ramasamy
In that Leave to Appeal Application the same objection as in theseapplications have been taken up to the proxy filed by the registeredattorney in this Court, and the Court had to decide whether it was avalid proxy. The decision in this case was based on the interpretationof the phrases “In or to any Court. … by a party to an action or appealin such Courtin section 24 of the Civil Procedure Code, readwith section 27 of the Civil Procedure Code. Having considered themanner of operation of these two sections, it was decided in thisjudgment that the words “registered attorney" in section 756 (4) inthe Civil Procedure Code do not mean the registered attorneyappearing in the District Court for a party seeking Leave to Appeal.They refer to the Attorney who is duly appointed by a party to appearin this Court for the purpose of making an application for Leave toAppeal to this Court". Mr. Kanaga Iswaran did not strictly rely on thisjudgment and also on the several dicta in this judgment. Mr. KanagaIswaran based his submission firmly on the ground that unlike in a finalappeal, in a Leave to Appeal Application the proceedings originate inthis Court. As such a party can appoint a registered attorney otherthan the registered attorney in the original Court for the purpose of aLeave to Appeal Application made in this Court. Mr. Naguleswaranappearing in the connected Application C.A.L.A. 2/78 entirely agreedwith the submissions made by Mr. Kanaga Iswaran.
Mr. Sinnathamby for the respondents submitted that a Leave toAppeal Application was really a continuation of the proceedings in theoriginal Court, and when the Leave to Appeal Application is allowedthe proceedings in the original Court will continue. As such the proxyin a Leave to Appeal Application under section 756 (2) has to besigned and filed by the registered attorney in the original Court as therecannot be. two registered attorneys in the same case. The registeredattorney of a party in the original Court is his authorised agent for theproceedings, and if another attorney filed a proxy for that party in thisCourt then the proxy in the original Court has to be cancelled. Therewas no parallel between a Leave to Appeal Application and a RevisionApplication. They are two different species and cannot be consideredas of one kind.
CA
Saravanapavan v. Kandasamydurai {Seneviratns. J.)
271
I shall first deal with the last submission of Mr. Sinnathamby asregards the difference in kind in a Leave to Appeal Application and anapplication in revision. No doubt both, an application in revision and anapplication for Leave to Appeal originate in this Court, but there % adistinction as pointed out by Gratiaen, J. In Gunasekera's case reliedon by Mr. Kanaga Iswaran. Gratiaen, J. states as follows :-'Thereasons for my decision are as follows .-
The present application inviting the Court to exercise itsrevisionary powers under Section 753 of the Civil ProcedureCode is in no sense a step in the proceedings in the Court ofRequests of Balapitiya. in which Mr. H. S. de Silva was the dulyauthorised proctor representing the petitioner; on the contrary,the present application 'Jby way of revision' – if I may employthat phrase-constitutes an entirely independent proceeding in adifferent Court of competent jurisdiction in which the petitionercould not be represented by a pleader other than an advocateduly instructed by a proctor whose proxy or letter ofappointment had to be filed in this Court",
The other grounds (2) and (3) set out by Gratiaen, J. for the decisionin that case with which Dias, S.P.J. – 'entirely' agreed depends onthe reason No. (1| above. I agree with Mr. Sinnathamby that<anapplication in revision cannot be considered in the same light as anApplication for Leave to Appeal. But still the fine distinction drawn byMr. Kanaga Iswaran is valid, i.e. that a Leave to Appeal Application is astep in the proceedings of the original Court, but unlike a final appeal,is a proceeding which originates in this court. I must add that if aLeave to Appeal Application is refused the proceedings end in thisCourt. Only if the Leave to Appeal Application is granted does section756 (7) operate and the proceedings in the original Court will bestayed and the record in the original Court will be forwarded to thisCourt. If only ultimately the Leave to Appeal Application is allowed,and the relief sought is granted, will the Leave to Appeal Applicationbecome related to the proceedings of the original Court.
Thus, a Leave to Appeal Application has to be considered
unlike in an ‘application in revision* a step in the proceedings'ofthe original court ;
a step which according to section 756 (4) originate in thisCourt ;
This is the distinction between an application in revision and a Leaveto Appeal Application. I hold that an Application for Leave to Appeal is
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a step which originates in this Court as in an 'application in revision'and that the proxy in such an application can be filed either by theregistered attorney in the original Court or by any other attorney. Itcartnot be said that this will result in there being two registeredattorneys and two proxies in the case.
Another ground urged by Mr. Kanaga Iswaran who has a wide andJong experience in this Court to support his contention, is that therewas a long standing practice in this Court for another attorney to fileproxy in this Court in a Leave to Appeal Application ; and that this longstanding practice should be approved of as a cursus curiae. Mr.Sinnathamby submitted that there was no such long standing practiceas the provisions of the Civil Procedure Code providing for Leave toAppeal were of recent origin. To meet this argument the Court has toconsider the history of the provisions for Leave to Appeal. The old CivilProcedure Code, Ceylon Legislative Enactments, Volume IV. Cap :101, section 754 (1) provided for an appeal "from any order of anyoriginal Court'. This provision resulted in the interlocutory appealswhich were filed under that Code. Such appeals were filed in theDistrict Court and then forwarded to the Supreme Court. For the firsttime in our Civil Procedure, the Administration of Justice Law. No. 44of 1973 (Chap : IV)-Appeals Procedure, section 347 (2) provided forthe procedure of "Leave to Appeal'. This law came into force from1.1.1974. It can be assumed that the practice of another attorney atlaw filing a proxy in this Court must have originated from that time. Inany case experience in this Court now shows that it has become theusual and inveterate practice for a different attorney-at-law, practisingin Colombo to file a proxy in this Court, in a Leave to AppealApplication from an outstation Court, and objection to this procedurehas often been taken. The judgment cited by me above Bank of Ceylonv. Ramasamy is a 1980 appeal. The two applications now beingconsidered are, one a 1978 application and the other a 1981application. In Application C.A./L.A./18/79 and 19/79 District Court,Kandy 7/2708 filed in this Court on 15.3.1979. objection to theproxy was taken up before a Bench of which I was a member by Mr. H.W. Jayewardene, Q.C., on the ground that an attorney-at-law inColombo has filed the proxy. The late Mr. C. Ranganathan, G.C.,supported this procedure.
One of the grounds on which Leave to Appeal was granted waswhether the proxies filed were valid proxies. I think that in the interests
CA
Saravanapavan v. Kandasamydurai (Seneviratne, J.).
273
of justice l should record this fact. Leave to Appeal Applications aresubmitted to me in terms of section 756 (5) of the Civil ProcedureCode. i.e. in the case of applications for Leave to Appeal(a) to fix a date for hearing of the application ; or{b) to require the application to be supported in open Court.
I have been examining records of the applications submitted to mefor orders since a long time, and discovered that the inveterate andusual practice is for an attorney-at-law practising in Colombo to fileproxy in Leave to Appeal Applications from outstation Courts. Thispractice seems to have grown up due to practical reasons and for sakeof expedition. A registered attorney in a case in the District Court ofBatticaloa, who files a Leave to Appeal Application in this Court- willfind it extremely difficult to pursue the application and take necessarysteps. I hold for the above reasons that the filing of the proxy byanother attorney in a Leave to Appeal Application has now become acjursus curiae of this Court.
In the case of Silva v. Kavanihamy – Canekeratne, J. with whomDias, J. agreed held as follows :
"The view taken in these two casesthat a Court ought
not to interfere where the party had shown no prejudice appearsvery reasonable. This view had stood unchallenged for a period oflittle over fifty years. It is especially important for the proper andexpeditious conduct of judicial business that the rules of procedureshould be stable”.
There seems to be no prejudice caused to any person by aregistered attorney other than the registered attorney in the originalCourt filing a proxy in this Court in a Leave to Appeal Application.Further, it is a very reasonable practice as the application can bediligently and expeditiously attended to. This practice does not involveany breach of the law-that is a breach of any provisions of the CivilProcedure Code.
In my view the objections to the proxies filed in the two applicationsbefore me are mere'technical objections, and this Court should not befettered by such technical objections. I hold that the proxies filed in theabove two applications before this Court are valid proxies and dismissthe objections. Objections dismissed with costs fixed at Rs. 250 foreach.
ABEVWARDENE, J.-l agree.
MOONEMALLE, J.-l agree.
Objections in both applications dismissed.