043-SLLR-SLLR-2003-1-WIJESUNDARA-v.-WIJESUNDARA.pdf
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[2003] 1 Sri L.R
WIJESUNDARA
v
WIJESUNDARA
COURT OF APPEALAMARATUNGA, J.
CALA 26/02.
D.C. MT.LAVINIA 2826/2000MARCH 13, 2003
Civil Procedure Code, sections 24, 25(b), 42, and 93(2) – Action brought byrecognised Agent – Holder of a Power of Attorney – Fact that the action hasbeen filed through an Attorney apparent on the face of the plaint – Applicationto amend answer after first date of trial refused -Validity.
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Wijesundara v Wijesundara (Amaratunga, J.)
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The plaintiff respondent instituted action against the defendant petitioner seek-ing a divorce and custody of the child. The defendant-petitioner filed answerdenying the allegations of malicious desertion and counter claimed a divorce.The trial was fixed for 30.5.2001. The defendant petitioner sought to amendthe answer on 25.2.2002. The trial judge refused the application. On leavebeen sought, it was contended that the plaint in its caption or in the body doesnot state that it is an action of the plaintiff by his attorney, therefore the defen-dant was not aware when she filed her answer that it was filed through anattorney and this fact came to light only when the defen3ant's attorney-at-lawperused the record at a later stage and therefore the defendant is entitled toamend the answer. The failure to state either in the caption, or in the body ofthe plaint that the plaintiff has filed his action by his attorney is a fatal defect.
Held:
The caption clearly shows that at the time of filing action both partieswere resident in the U.K.
In terms of section 24 of the Civil Procedure Code a party can makean appearance through his recognised Agent duly appointed by him.In this case, the proxy filed by the registered attorney is a proxy givento him by ‘J’ the Power of Attorney holder.
In terms of section 25(b) persons holding a general Power of Attorney,from parties not resident within the local limits of the jurisdiction ofcourt, shall file in court a copy of the Power of Attorney or a copythereof certified by a registered attorney.
Section 42 is not applicable, the action has not been brought in a rep-resentative capacity, but by the holder of a Power of Attorney, arecognised Agent.
Per Amaratunge J.,
“In the absence of any specific requirement in the Code to have suchparticulars either in the caption or in the body of the plaint, this court isunable to add a new requirement to actions filed through recognisedAgents.”
The plaintiff has complied with section 25(b) by filing a copy of thePower of Attorney along with plaint.
It appears on the face of the plaint, that at the time the plaint was filed,the plaintiff was resident in the U.K; this was sufficient notice for thedefendant to ascertain whether the action has been filed through anattorney or not.
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APPLICATION for leave to appeal from the order of the District Court ofMt.Lavinia.
Cases referred to:
Kareeza v Jayasinghe – (1986) 1 CALR 109
Liyanagev Seneviratne – (1986) 1 CALR 306
Dharmadasa v Goonewardena – 2 CLW 385
Ranjan Mendis with C.A.SJayaweera Bandara for defendant-petitioner.L.C.Seneviratne, P.C.,with Rohan Sahabandu for plaintiff-respondent.
Cur.adv.vult
June 20,2003
GAMINI AMARATUNGA, J.
This is an application for leave to appeal against an ordermade by the learned District Judge of Mt.Lavinia refusing an appli-cation made on behalf of the defendant- appellant to file an amend-ed answer. The facts relevant to this application are as follows.
The plaintiff-respondent by his plaint filed in the District Courtof Mt.Lavinia on 21/1/2002 claimed a divorce against the defen-dant-appellant, for an order for the custody of the child and theother reliefs prayed for in the plaint. The ground upon which thedivorce was claimed was malicious desertion. The defendant wifefiled answer denying the allegation of malicious desertion andcounter claimed a divorce on the ground of adultery of the plaintiffand malicious desertion. After the pleadings the Court has fixed trialfor 30/5/2001. However as there was an application made onbehalf of the defendant to have the case laid by the trial was nottaken up on that day and after an inquiry relating to the said appli-cation and when the case was to be fixed for trial the defendant hasmoved for permission to file an amended answer. A draft amendedanswer bearing the date 25/2/2002 has also been filed in theDistrict Court. After considering the submissions made by the par-
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ties the learned District Judge has made order dated 20/6/2002refusing permission to file an amended answer. This application forleave to appeal is against that order.
The fact that the plaintiff has filed his action through an attor-ney is not in dispute. So is the fact that the application to amend theanswer has been made after the first day fixed for trial. Accordingto the submissions made by the learned counsej for the appellantbefore me, the necessity to file an amended answer arose conse-quent to the discovery of a serious procedural defect in the plaint,discovered after the defendant filed her answer. This defect point-ed out in paragraph 5 of the amended answer and explained in thesubmissions of the learned counsel for the defendant-appellant isthe failure of the plaintiff to set out in his plaint that his action hasbeen filed through an attorney.
The learned counsel pointed out that the plaintiffs plaint in itscaption or in the body of the plaint does not state that it is an actionof the plaintiff by his attorney. In view of the absence of any indica-tion in the plaint that it is an action filed through ah attorney, thedefendant at the time she filed her answer was not aware that theaction has been filed through an attorney and this fact came to lightonly when the defendant's attorney-at-law perused the record at alater stage. According to the submission of the learned counsel forthe defendant-appellant the failure to state either in the caption or inthe body of the plaint that the plaintiff has filed his action by his attor-ney is a fatal defect and therefore there is no proper plaint; constitut-ed according to law, before Court. The defendant appellant wantedto raise this matter as an issue to be tried at the trial and for this pur-pose wished to raise.it by way of an amended answer. Before I pro-ceed to deal with the learned District Judge's reasons for refusing toallow the proposed amendment I wish to deal with the above legalsubmission of the learned counsel for the defendant-appellant.
The caption of the plaint of the plaintiff is as follows:.
Dr. Rohan Lalith Wijesundara,
111,5th Lane, Colombo 3.
(presently No 11C, Holycroft Avenue,
Hampstead, London NW 37 QC.UnitedKingdom)
-Plaintiff-
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Saumya Dilrukshi Wijesundara (nee) Karunaratna,
No 14A, St. Mary's Road, Mt.Lavinia(presently C/o Palitha Gunatilake,
Renolds Drive, Queensbury Edgeware, UnitedKingdom)
This caption clearly shows that at the time of filing the actionboth parties were*resident in the United Kingdom. It is not disputedthat the power of attorney given by the plaintiff toS.S.B.D.H.Jayawardena has been filed in the District Court alongwith the plaint and that it contains the rubber stamp impression ofthe District Court of Mount Lavinia bearing the date on which theplaint has been filed. In terms of section 24 of the Civil ProcedureCode a party may appear, make an application or act in Court byhis recognized agent or by a registered attorney duly appointed bythe party. In this case the proxy filed by the registered attorney is aproxy given by S.S.B.D.H.Jayawardana, the power of attorneyholder of the plaintiff. According to section 25(b) of the CivilProcedure Code, persons holding general powers of attorney fromparties not resident within the local limits of the jurisdiction of Courtshall file in Court a copy of the power of attorney or a copy thereofcertified by a registered attorney. In this case a copy of the powerof attorney has been filed in Court.
It was the submission of the learned counsel for the defen-dant-appellant that what was served on the defendant-appellantwas only a copy of the plaint attached to the summons and in theabsence of any statement in the caption or in the body of the plaintthat the action has been filed through an attorney, there was no wayfor the defendant to know that position. The learned counsel alsosubmitted that there is no requirement for a defendant to peruse therecord before filing answer and therefore the failure of the plaintiffto state in the plaint that action has been filed through an attorneydeprived an opportunity to the defendant to include an averment inthe answer relating to the legality of the plaint. The learned counselsubmitted that the plaint has not been prepared in accordance withsection 42 of the Civil. Procedure Code. With respect, this submis-sion is not tenable in law. Section 42 which enacts that ‘when theplaintiff sues in a representative character, the plaint should show
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not only that he has an actual interest in the subject-matter, but thathe has taken the steps necessary to enable him to institute anaction concerning it has no application to his case’.
This action has not been brought by the holder of the powerof attorney in a representative character. He is only a recognizedagent within the meaning of section 24 of the Civil Procedure Code.The plaintiff is the grantor of the power of attorneys Dr. Wijesundara.The holder of the power of attorney therefore is not the plaintiff andthe provisions of section 42 has no bearing on the facts of thiscase. It is true that generally, when an action is filed through anattorney, the caption usually states that it is an action by the plain-tiff by his attorney named in the plaint. However in the absence ofany specific requirement in the Civil Procedure Code to have suchparticulars either in the caption or in the body of the plaint this Courtis unable to add a new requirement to actions filed through recog-nized agents. The plaintiff has complied with the requirement setout in section 25(b) by filing a copy of the power of attorney alongwith the plaint.
It was the submission of the learned Counsel for the defen-dant-appellant that in the absence of a specific averment in theanswer that the plaint has been prepared according to law, she will.be precluded from raising an issue to this effect. It is well establish-ed that issues are restricted to pleadings. Kareeza v Jayasinghe<1),Liyanage vs Senviratnefi) An issue of law which goes to the veryroot of the case should be allowed in the interests of justice eventhough it does not arise out of the pleadings. Dharmadasa vGoonawardana.@)
The learned trial judge in considering the defendant's appli-cation to amend the answer has considered the two requirementsset out in section 93(2) of the Civil Procedure Code. The learnedjudge has come to the conclusion that since the defendant too hascounter-claimed for divorce, no grave and irremediable injusticewould be caused to her by refusing an amendment to the answer.The learned counsel for the defendant-appellant submitted that ifthe plaintiff's plaint is rejected the defendant would be in the posi-tion of the plaintiff and this would give her an added bargainingpower with regard to her claim for alimony and the settlement ofproperty. However this Court cannot see how such change of posi-
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tion would ipso facto give a stronger bargaining power to the defen-dant. She certainly has a bargaining power if the other party sug-gests a settlement or a compromise. But as at present there are nosigns of such a possibility. Whether a person stands in the capaci-ty of the plaintiff or defendant, the ultimate relief available willdepend on the findings made at the trial.
The learned trial judge has held that the defendant is alsoguilty of delay. However the learned counsel's submission was thatthe fact that the action has been filed through an attorney was notapparent on the face of the plaint and the application for amend-ment was made as soon as that fact was discovered and hencethere was no delay. However I have already stated that it appearson the face of the plaint that at the time the plaint was filed theplaintiff was resident in the United Kingdom. This was sufficientnotice for the defendant to ascertain whether the action has beenfiled through an attorney or not. However since this Court is satis-fied that no grave and irremediable injustice would be caused to thedefendant by refusing to allow the answer to be amended, there isno necessity to examine whether the trial judge's conclusion thatthe defendant is guilty of delay is correct or not. Since there is nopossibility of any prejudice being caused to the defendant the appli-cation for the amendment of the answer must necessarily fail.
For the foregoing reasons I hold that the learned judge'sorder refusing permission to file the amended answer is correct andaccordingly I refuse leave to appeal and dismiss this applicationwithout costs.
Application dismissed.