Warnasuriya V. Lucy Nona Et Al.,

1948 Present : Canekeratne, Windham, and Gratiaen JJ.
 
WARNASURIYA, Appellant, and LUCY NONA et al.,
Respondents.
 
S. C. 385-D. C. Matara, 16,577.

Counsel-Application for postponement-Refusal-Withdrawal from action-How far binding on client.
 
Counsel has, by reason of his retainer, complete authority over the suit and the mode of conducting it, and an abandonment of the action by him would be binding on his client.
 
APPEAL from a judgment of the District Judge of Matara.
 
E. B. Wikramanayake, for the plaintiff, appellant.-Postponement should have been granted in view of the circumstances in which it was asked for.
 
The plaintiff was not bound by the act of his Counsel in withdrawing from the case. Counsel cannot enter into any compromise without the consent of his client-Garrison v. Rodrigues 1-and of the trial Judge- Woutersz v. Carpen Chetty 2. The trial Judge was wrong in dismissing the action. He should have given the plaintiff an opportunity of going on with the case. He should have, at least, considered the evidence which had been already led. Proof of the registration of the lis pendent was not necessary as against the first defendant.
 
C. Chellappah, for the first defendant, respondent.-Counsel was. plaintiff's agent, and where an agent makes a submission to Court in the presence of and on behalf of his principal, it binds the principal.
 
The application for postponement was made after the pinch of the case was ascertained. In the circumstances an adjournment could riot have been allowed. See Ponnudurai v. Amerasekere 3. The plaintiff having abandoned his case, it was not incumbent on the trial Judge to consider the evidence already led.
 
The Appeal Court will not interfere with the exercise of the trial Judge's discretion-Simon Elias v. Joraivar Mull 4 ; Maxwell v. Keun 5.
 
H. W. Thambiah, with S. Sharvananda, for the second defendant, respondent.-The act of Counsel is the act of the party-Andiappa Chettiar v. Sanmugam Chattier 6. Section 24 of the Civil Procedure Code states that an advocate represents his proctor. See also de Mel v. Gunasekere 7 and 2 Hailsham, section 713. Where a party is present and does not protest against Counsel's action, he is bound by such action- Matthews v. Munster 8. In Matcher v. de Abrew 9 it was held that the Judge had exercised his discretion correctly in refusing a postponement.
 
Foot Notes:

1 I. L. R. (1886) 13 Calcutta 115.
2 (1907) 3 Bal. R. 197.
3 (1937) 2 C. L. J. 95.
4 (1875) 24 Sutherland W. R. 202.
5 (1928) 1 K. B. 645.
6 (1932) 33 N. L. R. 217.
7 (1939) 41 N. L. R. 33.
8 (1887) 20 Q. B. D. 141 at 144.
9 (1936) 38 N. L. R. 366.  

In Ramapillai v. Zavier 1 it was held that where an application for adjournment was refused, the party affected should have proceeded to call what evidence was available.
 
E. B. Wikramanayake, in reply.-The trial Judge did not exercise his discretion properly. The plaintiff should have been given an opportunity to go on with the case. Woutersz v. Carptn Chetty 2 makes it clear that the act of the plaintiff's Counsel in abandoning the case was wrong.

Cur. adv. vult.

March 24, 1948. Canekeratne J.-
 
This is an appeal by the plaintiff from a judgment dismissing his action, which was instituted on September 29, 1944, for a declaration that the defendant, now the first defendant, holds two allotments of land purchased on April 20, 1943, in trust for him. The first defendant is the wife of the plaintiff, but the parties have been living separate since August 3, 1944. On March 6, 1945, before summons was served on the first defendant the plaintiff applied for and obtained a notice on one G. P. David Silva who had purchased the rights of his wife in the case after the institution of the action and after the registration of lis pendent to show cause why he should not be made a party to the action. He was made the second defendant and filed an answer on April 1

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