Wamasuriya v. Lucy Nona
1948 Present: Canekeratne, Windham, and Gratiaen JJ.
WARNASTTRIYA, Appellant, and LUCY NONA et al.,Respondents.
S. C. 385—D. C. Matara, 16,577.
Counsel—Application for postponement—Refusal—Withdrawal from action—Howfar binding on client.
Counsel has, by reason of his retainer, complete authority over the suitand the mode of conducting it, and an abandonment of the action by bimwould be binding on his client.
_A.PPEAL from a judgment of the District Judge of Matara.
E. B. Wikramanayake, for the plaintiff, appellant.—Postponementshould have been granted in view of the circumstances in which it wasasked for.
The plaintiff was not bound by the act of his Counsel in withdrawingfrom the case. Counsel cannot enter into any compromise without theconsent of his client—Garrison v. Rodrigues 1—and of the trial Judge—Woulersz v. Carpen Chetty 2. The trial Judge was wrong in dismissingthe action. He should have given the plaintiff an opportunity of goingon with the case. He should have, at least, considered the evidencewhich had been already led. Proof of the registration of the lis pendenswas not necessary as against the first defendant.
Chellappah, for the first defendant, respondent.—Counsel was. plaintiff’s agent, and where an agent makes a submission to Court in thepresence of and on behalf of his principal, it binds the principal.
The application for postponement was made after the pinch of thecase was ascertained. In the circumstances an adjournment could nothave been allowed. See Ponnudurai v. Amerasekere3. The plaintiffhaving abandoned his case, it was not incumbent on the trial Judge toconsider the evidence already led.
The Appeal Court will not interfere with the exercise of the trial Judge’sdiscretion—Simon Elias v. Jorawar Mull 4 ; Maxwell v. Keun 5.
H. W. Thambiah, with S. Sharvananda, for the second defendant,respondent.—The act of Counsel is the act of the party—AndiappaChettiar v. Sanmugam Chettiar6. Section 24 of the Civil Procedure Codestates that an advocate represents his proctor. See also de Mel v.Gunasekere7 and 2 Hailsham, section 713. Where a party is presentand does not protest against Counsel’s action, he is bound by such action—Matthews v. Munster8. In Matcher v. de Abrew 9 it was held that theJudge had exercised his discretion correctly in refusing a postponement.
11. L. R. (1886) 13 Calcutta 115.5(1928)1 K. B. 645.
(1907) 3 Bal. B. 197.6(1932)33 N. L. B. 217.
(1937) 2 C. L. J. 95.7(1939)41 N. L. B. 33.
(1875) 24 Sutherland W. B.202.•(1887)20 Q. B. D. 141 at 144.
• (1936) 38 N. L. R. 366.
26 – N.L.R. Vol – xlix
CAJSTEKERATNE J.—Wamamiriya v. Isucy Nona
In RamapiUai v. Zavier1 it was held that where an application foradjournment was refused, the party affected should have proceeded tocall what evidence was available.
E. B. Wikramanayake, in reply.—The trial Judge did not exercise hisdiscretion properly. The plaintiff should have been given an opportunityto go on with the case. Woutersz v. Carpen Chetty 2 makes it clear thatthe act of the plaintiff’s Counsel in abandoning the case was wrong.
Cur. adv. vult.
March 24, 1948. Canekebatne J.—
This is an appeal by the plaintiff from a judgment dismissing his action,which was instituted on September 29, 1944, for a declaration that thedefendant, now the first defendant, holds two allotments of landpurchased on April 20, 1943, in trust for him. The first defendant is thewife of the plaintiff, but the parties have been living separate sinceAugust 3, 1944. On March 6, 1945, before summons was served on thefirst defendant the plaintiff applied for and obtained a notice on one
P. David Silva who had purchased the rights of his wife in the caseafter the institution of the action and after the registration of lis pendensto show cause why he should not be made a party to the action. He wasmade the second defendant and filed an answer on April 17, 1945.
The case came to trial on September 7, 1945. The plaintiff wasrepresented by his Proctor and Counsel ; eleven issues were framed.The burden of proving the trust was on the plaintiff. The first witnesscalled on his behalf was the plaintiff himself. While the plaintiff wasbeing examined in chief by his Counsel he attempted to produce a letterwritten by the father of the first defendant to which objection wassuccessfully taken by Counsel for the first defendant. Counsel for theplaintiff then applied for an adjournment of the trial in order to enablehim to produce an extract of the encumbrance sheet to prove thatlispendens has been registered. On the application being refused Counselstated that his client cannot proceed with the case without producing theextract to prove the registration of lis pendens as against the seconddefendant. He also added that “ he is not going on with the case ’ ’.Counsel appears to have thought it inadvisable to press the case anyfurther.
In appeal it is contended that a postponement should have beenallowed. There are no circumstances in this case to show that thediscretion has been improperly exercised by the trial Judge.Mr. Wikramanayake further contended that Counsel had no generalauthority, so as to be able to bind the client by the withdrawal of anaction. No attempt has been made to show that there was any expressdissent at the time on the part of the appellant to the procedure adoptedby his Counsel. Counsel has, by reason of his retainer, complete authorityover the suit, the mode of conducting it, and all that is incident to it,such as withdrawing the record, calling no witnesses and other matterswhich properly belong to the suit and the management and conduct of
1 (1946) 47 N. L. R. 281.2 (1907) 3 Bed. R. 197.
HOWARD C.J.—The King o. Muniandi
the trial. He is not simply the mouthpiece of the client, but is entitledto do everything whioh, in the exercise of his discretion, he may thinkbest for the interests of the client in the conduct of the case. (SeeStrauss v. Francis 1).
I am dearly of opinion that the abandonment of the action in thepresent oase is binding on the client.
The appeal is dismissed with costs.
Windham J.—I agree.
GBATLAEN J.—I agree.
– Appeal dismissed.