King V. Jayetilleke

[Full Bench.]

Present: Lascelles C.J., Wood Renton and Grenier JJ.

THE KING v. JAYETILLEKE.

3-D.C. (Crim.) Kurunegala, 3,435.

Petition-drawer-Drawing petition for filing in Court-No offence under-s. 5 of Ordinance No. 12 of 1848-Contempt of Court.

A petition-drawer who drew a petition for a person called upon to show cause why she should not be appointed guardian ad litem over a minor was held not to have committed an offence under section 5 of Ordinance No. 12 of 1848.

The section applies to the case of a proctor who practises without the prescribed annual certificate; it has no application to the case of a person who is not a proctor.

Lascelles C.J.-" It does not follow that because a prosecution such as the present one has failed the Courts are powerless to prevent unauthorized persons from doing work which should properly be done by proctors. To such persons to act as proctors may amount to a contempt of Court, and in any case it is open to a Court to decline to accept pleadings or other documents drawn by unauthorized persons ".

THE facts are set out in the judgment of Lascelles C.J.

Allan Drieberg (with him J. Joseph), for the appellant.-Drawing a petition is not an offence under section 5 of Ordinance No. 12 of 1848. The section refers only to the case of a proctor who carries on the business of a proctor without a stamped certificate.

The accused did not act as proctor. He professed to act as a-petition-drawer only. The Ordinance does not affect petition-drawers. The observations of Hutchinson C.J. in In re Wijesinghe1 are not correct.

Walter Pereira, K.C., S.-G., for the Crown.-The accused is not a proctor; he professed to act as a proctor. The accused is guilty of. an offence under section 1, though he may not be guilty under section 5. Section 289 of the Penal Code provides a penalty for offences under section 1. (Chief Justice.-The accused did not profess to act as a proctor!) The accused drew up a petition, which is a pleading, for filing in Court. Only parties or their recognized agents can do it. Sections 24 and 25 of the Civil Procedure Code say who recognized agents are.

Cur. adv. vult.

1 (1910) 14 N. L.. R. 43.

March 1, 1912. Lascelles C.J.-

This is an appeal against the conviction of the appellant under section 5 of Ordinance No. 12 of 1848, in that " he, as a proctor, and without having previously obtained a stamped certificate under the Ordinance No. 12 of 1848, did carry on proceedings in a Court, to wit, the Court of Requests of Kurunegala, to wit, by drawing for one Dissanayake Mudianselage Ukku Menika, for reward, a pleading intended to be used in the said Court of Requests of Kurunegala, to wit, a petition dated September 20, 1911," and that he thereby committed an offence under the said section of the said Ordinance. The accused in this case is a petition-drawer, and it appears that when one Ukku Menika was called upon to show cause why she should not be appointed guardian ad litem over a minor relation, she got the accused to draw the petition which is the subject of the present charge. The petition bears the mark of Ukku Menika, and it purports to be drawn by the accused. The substance of the petition is that, as the petitioner had no interest in the first respondent or his property, she declined to be guardian ad litem over him, and she begged that the application to have her so appointed should be dismissed. In my opinion the conviction under section 5 of Ordinance No. 12 of 1848 is clearly wrong. The title of the Ordinance is " for making provision in certain respects touching the admission of advocates and proctors; and for the annual registration of practising proctors," and the preamble to the Ordinance recites that " for the better regulation of proctors practising in this Island, it is expedient that every such proctor should be required to take out annually a certificate that the person named therein is a proctor, and authorize

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