IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an application for Restitutio in Integrum under Article 138(1) of the Constitution of the Democratic Socialist Republic of Sri Lanka.

CA/RII/09/2023 D. C. Colombo Case No. 02/2021 Abdul Raheem Thameem Safrun Nisa, No. 145. Kandy road, Mallawapitiya, Kurunegala, Correct Address No. 18, 02nd Lane, Mawilmada, Kandy Now at P. O. Box 4435, MDC Hoppers, Crossing VIC 3029 Appearing by his duly appointed Power of Attorney Holder Mohamadu Juneideen Mohamadu Nazeer of No. 185/6, Hettiyawatta, Mallawapitiya, Kurunegala Defendant Petitioner Vs.

Mohamed Hanifa Hawwa Bibi, No. 18, 02nd Lane, Mawilmada Kandy.

Plaintiff Respondent Before: Hon. D.N. Samarakoon, Judge of the Court of Appeal Hon. Neil Iddawala, Judge of the Court of Appeal Counsel: Erusha Kalidasa, appears for the Defendant – Petitioner N. M. Shaheid instructed by M. A. Zaid for the plaintiff respondent.

Supported on: 09.08.2023 Date: 29.08.2023

ORDER

D.N. Samarakoon, J.

In Silva vs. Cumaratunga (1938) 40 NLR 139, Maartensz J., said, “"The ratio decidendi in old cases, with which I respectfully agree, was that this Court cannot recognise two proctors appearing for the same party in the same cause".

A similar situation has arisen in this case.

Mr. Erusha Kalidasa instructed by Ms. Ranjanie Keragala Jayaweera supported this matter on 24.05.2023 for notices on the respondents and for a stay order under paragraph (f) of the petition, which the court granted on a prima facia basis.

On the notice returnable date, which is 06.06.2023, it is recorded that Mr. N. M. Shaheid appears with M. A. Zaid for the plaintiff respondent. What was so recorded was the information provided in the “appearance list” for the day, transcribed by the court stenographer.

The plaintiff respondent is Mohamad Hanifa Hawwa Bibi of No. 18, 2nd Lane, Mawilmada, Kandy.

There is a proxy dated 25.06.2023 which is filed of record which is given by Mohamed Haniffa Hawwa Beebee bearing National Identity Card No. 486001160V, by which she has appointed Mr. M. A. Zaid, Attorney at Law as her registered attorney.

It bears both the signatures of Mr. M. A. Zaid and M. H. Hawwa Beebee. She has signed in English as “I. H. Beebi”.

Mr. M. A. Zaid has tendered statement of objections dated 28.06.2023 by a motion dated 05.07.2023.

This was accepted by court on 14.07.2023 and a date has been given for counter objections for 25.07.2023.

On 25.07.2023, Mr. Shaheid brough to the notice of the court that his registered Attorney has received a copy of a motion purporting to revoke the proxy and he moved to notice the plaintiff respondent Mohamed Hanifa Hawwa Beebi to appear in court, which was granted and notice was issued on her by court through registered post. The next date was 09.08.2023.

On 09.08.2023 Mr. Malin Danansooriya purportedly appeared for the plaintiff respondent, instructed by Ms. Lakshani Himashi, Attorney at Law.

As Mr. Shaheid who was present in court took up the position, that, proxy given to his registered Attorney was not properly revoked, the court fixed this matter for order, on the very basis of the above statement or Maartensz J., according to his lordship based on the ratio decidendi of old cases.

There is a motion filed of record dated 14.07.2023 purporting to be a revocation of the earlier proxy which motion is filed by Ms. U. G. Laksahani Himashi, Attorney at Law.

It contains a document dated 13.07.2023 which narrates that Mohamed Hanifa Hawwa Bibi revokes the proxy dated 06.06.2023 given to Mr. M. A. Zaid.

This document bears a thumb impression, purported to be the left thumb impression of the said M. H. Hawwa Bibi and the signature of Ms. Himashi.

The documents says, “having received the leave of the above named court in that behalf”.

No such leave, for the revocation of the earlier proxy, has been granted by this court.

Neither the motion of Ms. Himashi dated 14.07.2023 prays for such leave.

It was said in FERNANDO et al. v. MATHEW et al.,