S. P. GUNATILAKE V. S. P. SUNlL EKANAYAKE

S. P. GUNATILAKE V. S. P. SUNlL EKANAYAKE

SUPREME COURT
J. A. N. DE SILVA, C.J.
K. SRIPAVAN, J AND
C. EKANAYAKE, J.
S. C. APPEAL NO. 2612009
S. C. (CALA) 130 A//2008
NCP/HCCA/65/2007
D. C. POLONNARUWA 534 1/L
JUNE 29TH, 2010

Civil Procedure Code - Section 27 - appointment of a registered Attorney- failure to file proxy-subsequent filing of proxy- validity-objection to jurisdiction - failure to take such objections at the first opportunity - consequences?

This is an appeal against the judgment of the Provincial (Civil) Appellate High Court. The original Plaintiff died whilst the District Court action was pending and the Attorney-at-Law for the deceased Plaintiff on record filed a petition and affidavit to substitute the present substituted Plaintiff in place of the Deceased Plaintiff. The District Court allowed the substitution and after trial judgment was delivered in favour of the substituted Plaintiff. The Respondent appealed against the judgment. The substituted plaintiff filled an application for writ pending appeal. The District Court allowed the application and issued a writ in favour of the substituted Plaintiff. The Respondent preferred an appealed against the said order. The Court of Appeal refused leave and dismissed the application. The Respondent thereafter preferred a special leave to appeal application to the Supreme Court which was later refused. The final appeal was fixed before the Civil Appellate High Court of Anuradhapura. In appeal the Respondent tookup a preliminary objection that there was no proxy filed on behalf of the substituted Plaintiff in  the District Court, and there was no proper application before Court to substitute him or even to represent him by an Attorney-at-Law. The substituted Plaintiff submitted that the failure to object in the original Court coupled with the subsequent filing of a proxy cured any defect which may have invalidated the proceedings.

The High Court of Appeal (Civil) Anuradhapura allowed the appeal on the ground that no valid proxy had been before the District Court on behalf of the substituted Plaintiff thereby rendering the judgment dated 02.02.2002 of the District Judge null and void.

This appeal to the Supreme Court is against the aforesaid decision of the Civil Appellate High Court.

Held

(1) Even when an Attorney is incapable of appearing or making applications due to the total failure to file proxy, such default should not in any way affect the validity of the proceedings.

Per J. A. N. de Silva, CJ. -

".............Mr. Iddawela's name continued to be in the record as being the Attorney for the Plaintiff. On 21/ 11/2001 the trial recommenced and the record notice Mr. Iddawela as having appeared for the substituted Plaintiff. No objection to this was taken up by the Defendant. From that point onwards this Court notes no less than seventeen journal entries with Mr. Iddawela's name appearing for the substituted Plaintiff, whilst the substituted Plaintiff's presence in Court is also duly noted. At no time was an objection taken to Mr. Iddawela's appearance."

"The aforementioned facts in my opinion, provides a sufficiently strong indication that the substituted Plaintiff had at the material times granted Mr. Iddawela the authority to appear and make applications on behalf of him, despite the substituted Plaintiff not filing a proxy as an overt manifestation of the granting of such authority."

(2) The substituted Plaintiff by virtue of filing a proxy belatedly has succeeded in ratifying the appearances and applications of the registered Attorney and thereby supplying all such acts with legal validity.

Obiter:

Jurisdictional objections are required to be taken at the first opportunity, the failure of which would constitute acquiescence to jurisdiction of the Court.

Cases referred to;

(1)    Paul Coir v. Waas - 2002 (1) SLR 13
(2)    L. J. Peiris & Co. Ltd. V. Peiris -

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