Punchibanda V. Punchibanda Et Al.,

 

1941     Present: Howard C.J. and Soertsz J.

 

PUNCHIBANDA v. PUNCHIBANDA  et al.

89-D. C. Kurunegala, 19,047.

 

Evidence-Admission made by Counsel-Admission not clear-Binding effect on party-Admission to be in writing.

 

An admission made in the course of a trial on behalf of a party should be clear and distinct and should, as a rule, be made in writing and signed by the parties or their proctors.

 

APPEAL from a judgment of the District Judge of Kurunegala.

 

A. Nadarajah, for defendants, appellants.

 

N. E. Weerasooria, K.C. (with him E. B. Wickremanayake), for plaintiff, respondent.

 

Cur. adv. vult.

 

June 5, 1941. SOERTSZ J.-

 

The short point in this case is whether the defendants-appellants are entitled to avail themselves of the opportunity given to them by the District Judge on January 26, 1940, to amend their answer, by amending it to the extent of disregarding an admission made by Counsel who appeared for them and by the plaintiff's proctor to the effect that " The shares are admitted at this state. It is admitted that the parties do not base their claim to particular lots' on their prescriptive rights ".

 

The amendment which has been rejected calls in question the plaintiff's right to any shares of this land at all, and sets up a prescriptive title against him.

 

The learned trial Judge rejected this amended answer because he held that the defendants were not entitled to repudiate the admission on the ground on which they seek to repudiate it, namely, that their Counsel had no right to make it, and that he made it without their consent.

 

It has been held in several cases that a proctor has the right to settle or compromise a matter or case entrusted to him even without consulting his client in regard to it (see Fernando v. Sinnoris Appu [1 20 N. L. E. 460.] ), and I suppose Counsel may make an admission, if he is instructed by his proctor to make it, but the difficulty in the present case is that the admission is recorded in so perfunctory a manner that one cannot be certain as to who made the admission and in what circumstances, it was made.

 

This Court has often pointed out that when settlements, adjustments, admissions, &c., are reached or made, their nature should be explained clearly to the parties, and their signatures of thumb impressions should be obtained. The consequence of this obvious precaution not being taken is that this Court has its work unduly increased by wasteful appeals and by applications being made to it for revision or restitutio in integrum. One almost receives the impression that once a settlement is adumbrated, those concerned, in their eagerness to accomplish it, refrain from probing the matter thoroughly lest the settlement fall through.

 

This is a very unsatisfactory state of things and it is to be hoped that a greater degree of responsibility will be shown on these matters by both judges and lawyers.

 

Reference was made in the course of the argument here to the case of Hewa Radage Phillspu v. Ferdinandis and others[1  1 Madras Cases]in

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