Syadu Varusai V. Weerasekeram

1956 Present: Sansoni, J., and H. N, G. Fernando, J.

SYADU VARUSAI et al., Appellants, and
T. WEERASEKERAM et al., Respondents

S. C. 399-D. C. Colombo, 2,874

Postponement-Refusal by Court-Withdrawal of Counsel from proceedings- Propriety-Civil Procedure Code, s. 82.

When an application for a postponement is refused it is the duty of the Counsel, who made the application, to continue to appear for his client and to conduct the case which has been entrusted to him. The only instance where a, withdrawal by him from the proceedings is permissible, and then too only with the leave of Court, is where he has been retained only for the limited purpose of making the application for postponement and such application is. refused by tke Court.

APPEAL from a judgment of the District Court, Colombo.

S. J. V. Chelvanayakam, Q.C., with C. Chellappah, for the defendants-appellants.

Cyril E. S. Perera, Q.C., with S. W. Jayasuriya, for the plaintiffs-respondents.

Cur. adv. vult.

February 9, 1956. SANSONI, J.-

This is a partition action which was instituted in May, 1943. The first trial took place in February and March, 1947 upon certain points of contest which were raised between the plaintiffs and the 8th and 9th

defendants, and a decree for the sale of the premises in dispute was entered in May, 1947. The 8th and 9th defendants appealed against -that decree and on September 5th, 1950, this Court set aside the judgment of the District Judge and sent the case back in order that a certified copy of a last will upon which the plaintiffs relied, and a certified copy of an -account filed in a testamentary case which the 8th and 9th defendants moved to read in evidence, might be admitted. It was also ordered that the parties would be entitled to lead any further evidence if they wished to do so.

When the case went back to the District Court it came up for trial on October 2nd, 1951. The plaintiffs' Counsel moved for a postponement on the ground that the witness who had given evidence on the title at the previous trial had not been summoned, as it was thought that the evidence already recorded would be acted upon. He asked for an opportunity to cite that witness, and stated that he was ready with the other witnesses. The points in dispute were recorded afresh by the trial judge and the evidence of one witness was led. In view of the reasons given by the plaintiffs' Counsel, the defendants' Counsel did not object to a postponement and the Judge allowed it for those reasons. The points of contest framed were substantially the same as those which had been framed at the previous trial.

Eventually the case came up for trial again on June 6th, 1952. Counsel for the 8th and 9th defendants then produced a medical certificate and asked for a postponement on the gound that the 8th defendant, who was said to be a material witness, was ill in India. The plaintiffs' counsel objected to the application and led the evidence of a witness who stated that the 8th defendant had been seen in Colombo on 2nd June, after the medical certificate was said to have been issued. If this evidence was believed there was everyreason to suspect that the 8th defendant was not in fact ill. The trial judge refused the application for a postponement and directed that the trial should proceed. According to the record of the proceedings, Counsel for the 8th and 9th defendants then said that he was unable to take part in the further proceedings as he had no instructions with regard to the conduct of the case, and he would not be leading any evidence on behalf of the 8th or 9th defendants. The plaintiffs' Counsel then led afresh the evidence of the witness who had given evidence on the question of title at the first trial. This witness was not cross-examined. Documents were read in evidence by the plaintiffs' Counsel, including a certified copy of the last will which this Court had by its order di

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