Muttucarpen Chettiar V. Mohamed Salim Et Al.,

1938 Present: Moseley, Keuneman, and de Kretser JJ.

 
MUTTUCARPEN CHETTIAR v. MOHAMED SALIM et al. .

293-D. C. Colombo, 50,221.

Privy Council-Leave to appeal-Application under rule 5 to serve notices on the respondents through Court-Applicants' proxy signed by attorney- Validity of proxy-Appellate Procedure (Privy Council) Order, 1921, rule 6.

A proxy given to a Proctor by the duly appointed attorney of a party to an application for conditional leave to appeal to the Privy Council complies with the requirements of rule 6 of the Appellate Procedure (Privy Council) Order, 1921.

THIS is an application for conditional leave to appeal to the Privy Council. With the motion to serve notice of the intended application for leave to appeal, under rule 5 of the Appellate Procedure (Privy Council) Order, 1921, was filed a proxy in favour of Proctor Somasunderam by the person holding the petitioner's power of attorney. In pursuance of this motion, which was allowed, notices signed by the Proctor were posted to the respondents, who contended that the proxy was bad under the rules and that the notices were not valid.

H. V. Perera, K. C. (with him S. J. V. Chelvanayagam), for petitioner. - The word ?document? in rule 6 of the Appellate Procedure (Privy Council) Order, 1921, is not denned. The expression ?a party ....shall ....file? means his filing or causing the document to be filed. It does not say that he should sign it. The rules do not say what a valid appointment of a Proctor is and, as the Civil Procedure Code, 1889, is also silent, the general law of agency is applicable. It would be highly inconvenient if the party had to sign it himself, specially if he is outside Ceylon. If the Proctor has been appointed by the attorney, it would be sufficient.

The cases Fradd v. Fernando 1 and Annamalay Chetty v. Thornhill 2 do not apply.

N. Nadarajah (with him E. F. N. Gratiaen and M. M. I. Kariapper), for first respondent. -The question is whether the word ?applicant? in rule 2 of Schedule I. to the Appeals (Privy Council) Ordinance, 1909, is to be interpreted as ?the applicant or his recognized agent". But for section 24 of the Civil Procedure Code, 1889, all appearances in Court has to be by the party himself. Even then there are certain things which could be done by the party only, for example see section 445 of the Civil Procedure Code. If the applicant is outside the Island an extension of time can be obtained under rule 3 (a) of the Appeals (Privy Council) Ordinance. An attorney cannot act without the authority of the applicant.

1 (1934) 36 N. L. R. 132.
2 (1935) 36 N. L. R. 413.

The words of the Ordinance are clear and effect must be given to them as held in In re Prince Blucher, ex parte The Debtor v. Official Receiver 1 See also Hyde v. Another s2. Acts which could be done by an agent are stated in Article 6 of Boustead on Agency (8th ed.), p. 9.

Under rule 5A of the Appellate Procedure (Privy Council) Order, 1921, notice cannot be served on the attorney, then it follows that it cannot be served on the Proctor appointed by the attorney. Tarrant & Co. v. Ibrahim Lebbe Marikkar 3 and Weerakoon Appuhamy v. Wijesinghe4 were cited.

M. S. A. Marikar, for second to seventh respondents, adopted the arguments of the Counsel for first respondent.

H. V. Perera, K. C., in reply. -A party can appear in person, but an attorney cannot. Further, when all the necessary steps have been taken, then, if the rules of Court require only a solicitor to appear, a person having authority can do everything to appoint a solicitor in order to exercise the power given to him. It is not a limitation by the general law, but it is a rule of Court showing how a thing could be done. See 26 Halsbury (1st ed.) Art. 1203, p. 730 and Boustead on Agency, Art. 6, Illus. 7.

Cur. adv. vult.

December 14, 1938. KEUNEMAN J. -

This matter came before us

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