Sri Lanka Law Reports
12003) 3 Sri L.R
WIMALASIRI AND ANOTHERv
PREMASIRICOURT OF APPEALDISSANAYAKE, J.SOMAWANSA, J.
C. KANDY 11187/PMAY 19,2003JUNE 12, 2003
Civil Procedure Code – Sections 93, 755(1)d, 2(b) 758(1)(c), and 759(2) -Respondent died pending trial – Party Substituted – Appellant namesdeceased defendent as respondent – Validity – Is it fatal?
(1) Default of citing a person not living as the respondent in the Notice ofAppeal and the Petition of Appeal which resulted from the negligenceof the defendant-appellant and the registered Attorney-at-Law wouldrender notice and the Petition of Appeal void ab initio. The defect beingincurable the defendant-appellants cannot seek relief under section759/(2).
‘There is a distinction between mistakes or inadvertence of anAttorney-at-Law or party and negligence, a mere mistake cangenerally be excused but not negligence".
APPEAL from the Judgment of the District Court of Kandy.
Cases referred to:
Keerthiratne v Udena Jayasekera -1990 2 Sri LR 346
Don Alwis v Village Committee of Hiripitiya – 54 NLR 225
Packiyanathan v Singarajah – 1991 2 Sri LR 205
Sri Lanka General Workers Union v Samaranayake -1992 2 Sri LR 268
Martin v Suduhamy – 1991 2 Sri LR 279
De Silva v Seenathaumma – 41 LR 241
Wimalasiri and another v Premasiri
S.C.B. Walgampaya with Eranga Perera for defendant-appellant.
Hemasiri Withanachchi for plaintiff-respondent.
September 12, 2003SOMAWANSA, J.
When this appeal was taken up for hearing counsel for the 01substituted-plaintiff raised a preliminary objection in relation tothe validity of both the notice of appeal and the petition of appealon the basis that the party cited as the ‘respondent’ therein is thedeceased plaintiff who died pending the trial in the District Courtand not the substituted plaintiff.
It was submitted by counsel for the substituted-plaintiff thatthe original plaintiff Medagedara Premasiri died during the pen-dency of the trial and on 18.10.1990 his daughter ChamariPremasiri was substituted in the room of the plaintiff. This is 10borne out by the journal entry No.49 dated 18.10.1990. The cap-tion in the amended plaint was also amended with the insertionof the name of the said Chamari Premasiri as the substitutedplaintiff as shown on page 37 of the brief. That the substituted-plaintiff. was present in Court thereafter as the proceedings of17.01.1992 and 19.05.1992 would indicate. He submits that inthe circumstances it is inconceivable that the death of the origi-nal plaintiff and the substitution of the daughter were not withinthe full knowledge of the defendants-appellants and their regis-tered Attorney-at-Law. However he submits that in the instant 20appeal the caption of both the notice and the petition of appealcarry the name of a person who was not among the living andwho was non existent, as the respondent. Therefore he submitsthat in terms of section 755(1 )(d) 2(b) and section (1) (c) both thenotice and the petition of appeal are defective for non compli-ance with the provisions of the said sections and that this defectis not a curable defect and as the irregularity was fatal both thenotice and the petition are void ab initio.
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It is contended by counsel for the 1 st to 4th defendants-appellants that the original caption has not been amended in the 30journal nor an amended caption filed and that after the order wasmade for substitution it was the duty of the substituted-plaintiff totake steps to amend the caption. The counsel also refers to sec-tion 93(4) of the Civil Procedure Code wherein mandates that theadditions or alterations be clearly made on the face of the plead-ings affected by the order or if this cannot conveniently be done,a fair copy of the pleadings as altered be appended in the record.
It is common ground that the original plaintiff died duringthe pendency of the trial and on 18.10.1990 his daughterChamari Premasiri was substituted in the room of the plaintiff. On 4Can examination of the record it is to be seen that though the cap-tion in the original plaint has not been amended the caption in theamended plaint has been amended with the insertion of thename of the said Chamari Premasiri with a reference to journalentry 49. Therefore it appears to me that there was no other dutyor burden cast on the substituted-plaintiff to take any furthersteps in this regard. The fact that the original plaint was notamended is irrelevant for once an amended plaint is filed ofrecord with permission of Court proceedings are based on theamended plaint and not on the original plaint. Hence it is to be 50seen that the argument of counsel that the original captionshould have been amended in the record has no merit and Iwould agree with counsel for the substituted plaintiff that thedefendants-appellants in order to cover up their negligence areattempting to take refuge in some imaginative lapse on the partof the substituted-plaintiff when the basic requirements had beencomplied with.
In any event, the provisions of section 93 have no applica-tion to the amendment of the caption inasmuch as the pleadingswere not amended and the amendment to the caption has been 60duly recorded. In the circumstances the defendants-appellantscannot be heard to say that they were misled by an omission onthe part of the substituted-plaintiff.
It is also submitted by the counsel for the defendants-appellants that the motion dispensing security for costs tenderedto Court along with the notice of appeal and the appearance of
Wimalasiri and another v Premasiri
counsel on behalf of the substituted-plaintiff would establish thatthe substituted-plaintiff has had notice of the appeal and thus thedefendants-appellants have duly complied with the provisions ofsection 755 (2)(b). However notice of appeal is not the issue thatis being canvassed but the validity of the petition of appeal.
The relevant section pertaining to the issue at hand is asfollows:
755.(1) “Every notice of appeal shall be .distinctly written ongood and suitable paper and shall be signed by the appellant orhis registered Attorney and shall be duly stamped. Such noticeshall also contain the following particulars:
the. names of the appellant and respondent;”
758 (1) “The petition of appeal shall be distinctly written ongood and suitable paper, and shall contain the following particu-lars:
(c) the names of the appellant and of the respondent;”
In the instant appeal, it is to be seen that both in the noticeas well as the petition of appeal the name given in the caption asthe plaintiff-respondent is a person who was no longer living.Therefore it is clear that the defendants-appellants will not beable to proceed with the appeal in view of the failure to complywith the provisions in the said sections. In any event, they can-not proceed against a dead person.
Counsel for the defendants-appellants knowing the precar-ious position the defendants-appellants are placed with submit-ted that the mistake, omission or defect of the defendants-appel-lants in not naming the substituted-plaintiff as respondent hasnot materially prejudiced the substituted-plaintiff at all and there-fore he contended that the defendants-appellants are entitled torelief in terms of section 759(2) of the Civil Procedure Code. Thesaid section reads as follows:
759(2) “In the case of any mistake, omission or defect onthe part of any appellant in complying with the provisions of theforegoing sections, the Court of Appeal may, if it should be ofopinion that the respondent has not been materially prejudiced,
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grant relief on such terms as it may deem just”.
In the case Keerthiratne v Udena Jayasekera<1) the headnote reads:
“Notice of appeal was given in time in terms of S.755(1) ofthe Civil Procedure Code. The Attorney-at-Law on record failedto file the petition of appeal as required by S.755(3) of the CivilProcedure Code. The excuse given was that the appellant waskept in detention and as a result his mental and physical condi-tion deteriorated and after his release he had to obtain treatment 110for his condition and therefore could not give instructions.
The filing of a notice of appeal must be followed by pre-sentation of the petition of appeal within 60 days. Both steps areimperative and mandatory. The responsibility is on the Attorney-at-Law on record and not on the petitioner.
The provisions of S. 759(2) of the Civil Procedure Codecannot be invoked to condone the negligence and carelessnessof the Attorney-at-Law on record”.
The relief that the defendants-appellants are seeking is toamend the caption in the notice and petition of appeal to include 120the name of the substituted-plaintiff as the respondent. It is wellsettled that where a plaintiff has instituted action against a wrongparty as the defendant the plaintiff cannot subsequently amendthe caption so as to have the proper person added as a defen-dant.
Don Alwis v Village Committee of HiripitiyaW the head note
“Where a plaintiff has instituted action against a wrongparty as the defendant the plaint cannot be subsequently amend-ed so as to have the proper person added as a defendant. In 130such a case, the proper course is for the plaintiff to drop theaction which has been wrongly instituted and commence a newaction against the proper person who should have been madethe defendant.”
In Packiyanathan v Singarajah(3> it was held:
Wtmalasiri and another v Premasiri
“Relief will not be granted for default in prosecuting anappeal where-
the default has resulted from the negligence of theclient or both the client and his Attorney-at-Law.
the default has resulted from the negligence of the
Attorney-at-Law in which event the principle is that the negli-gence of the Attorney-at-Law is the negligence of the client andthe client must suffer for it.
As the applicant’s default appeared to be the result of hisown negligence as well as the negligence of his Attorney-at-Lawthe conduct of the appellant and his Attorney-at-Law cannot beexcused. The appellant had failed to adduce sufficient cause fora re-hearing of the appeal.
It is necessary to make a distinction between mistake orinadvertence of an Attorney-at-Law or party and negligence. Amere mistake can generally be excused; but not negligence,especially continuing negligence. The decision will depend onthe facts and circumstances of each case. The Court will ingranting relief ensure that it’s order will not condone or in anymanner encourage the neglect of professional duties expected ofAttorneys-at-Law”.
As stated above, the fact that the original plaintiff was nolonger living and on his death his daughter Chamari Premasirihad been substituted in the room of the plaintiff was well withinthe knowledge of the defendants-appellants and the registeredAttorney-at-Law. The fact that substitution had been effected inthe room of the dead plaintiff is manifest in the caption to theamended plaint. In the circumstances citing the original plaintiffwho was no longer living as the respondent to the notice ofappeal as well as to the petition of appeal could only be con-strued as negligence and not as a mistake or inadvertence onthe part of the defendants-appellants and their Attorney-at-Law.Such negligence in my opinion should not be condoned or in anymanner encouraged. If not, it would be opening the flood gatesfor parties and the registered Attorney-at-Law to seek relief fortheir negligence in the guise of mistake or inadvertence.
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Counsel for the defendants-appellants have cited the deci-sion in Sri Lanka General Workers Union v Samaranayake <4) tostrengthen his claim for relief in terms of section 759(2) of theCivil Procedure Code. However the said decision has no appli-cation to the issue at hand for that decision deals with themandatory nature of the time limit laid down in section 31 (D) ofthe Industrial Disputes Act. He also cites the decision in Martin vSuduhamyi5) and De Silva v Seenathaumma<6) where it wasobserved:180
“It does not follow that relief should be given even if therespondents have not been materially prejudiced but reliefshould not be lightly withheld, for the effect of refusing relief maybe to deprive a litigant of access to the Supreme Court and if theoriginal judgment is wrong amount to denial of justice.”
In the instant appeal, I would hold that the default of citinga person not living as the respondent in the notice of appeal andthe petition of appeal which resulted from the negligence of thedefendants-appellants and the registered Attorney-at-Law wouldrender the notice of petition and the petition of appeal void ab ini- 190tio and liable to be rejected in limine. This defect being incurablethe defendants-appellants cannot seek any relief in terms of sec-tion 759(2) of the Civil Procedure Code to amend the caption tobring in the person who should have been made respondent tothe notice of appeal and the petition of appeal.
For the above reasons, I would uphold the preliminary objec-tion raised by the plaintiff-respondent and reject the appeal. Thedefendants-appellants will each pay Rs.1250/- to the plaintiff-respondent as costs of this appeal. Registrar is directed to returnthe case record to the appropriate District Court forthwith.200
DISSANAYAKA, J.I agree.