1960 Present : Basnayake, C.J., and Sansoni, J.

MOHIDEEN ALl, Petitioner, and  HASSIM,
Respondent

S. C. 524 - In the matter of an Application for Restitutio in
Integrum in D. C. Colombo 43561/M

Compromise of action-Counsel-Proxy given to Proctor-Absence therein of authority to consent to judgment-Right of Counsel, nevertheless, to consent to judgment Civil Procedure Code, ss. 24, 27.

On 30th April 1959 Counsel who appeared for the defendant obtained I} postponement on agreeing that if the costs of the day were not pre-paid to the other side before 10 a.m. on the next trial date judgment should be entered for the plaintiff as prayed for. Although the proxy given by the defendant to his Proctor did not give the Proctor authority to consent to judgment in terms of Form No.7 of the Schedule to the Civil Procedure Code, the client, who was in Court, raised no objection when the undertaking and consent to judgment were given by Counsel. Nor did the Proctor take any steps to repudiate the undertaking.

On the next trial date, evidence was led for the plaintiff that costs were not paid as agreed. The evidence was not contradicted by the defendant. Thereupon judgment was entered in favour of the plaintiff.

It was contended in appeal that the authority of the Proctor of a party to a suit ",as limited by the terms of the instrument of appointment and that as section 24 of the Civil Procedure Code provided that an. Advocate instructed by a Proctor represents the Proctor in Court the Advocate's authority could never be greater than that given to the Proctor.

held, that, despite the restricted terms of the proxy, the plaintiff was entitled to judgment in his favour in terms of the consent given by the defendant's Counsel. An extension of the written authority contained in the proxy could be given orally or be inferred from the client's conduct.

APPLICATION for restitutio in integrum in respect of an action instituted in the District Court, Colombo.

H. V. Perera, Petitioner. Q. C., with R. Manikkavasagar, for Defendant

H. W. Jayewardene, Q.C., with M. T. M. Sivardeen, for Plaintiff Respondent.

Cur. adv. vult.

December 19, 1960. BASNAYAKE, C.J.

The only question for decision on this application is whether a party to a civil suit is bound by the action of his counsel in consenting to judgement against him on his failure to pay the agreed costs of the opposing

party which he has undertaken to pay before a stated time on a stated day on condition a postponement is granted to him to enable him to summon a material witness.

Shortly the facts are as follows :-The petitioner (hereinafter referred to as the defendant) is the defendant in an action for damages for injuries suffered by the plaintiff, a minor. When the case was taken up for trial on the 30th April 1959 the defendant's counsel applied for a postponement of the trial. The relative minute in the record reads:

" Mr. Subramaniam begs for a date. He says that a material witness for him could not be summoned for today as his name was ascertained from the Police only today. He consents to pre-pay the costs of the other side, which is agreed on at Rs. 150/-.

It is also agreed that if costs are not paid before 10 a.m. on the trial date (15/1O/59) judgment should be entered for plaintiff as prayed for.

Trial is refixed for 15110/59."

When the case was taken up on 15th October 1959 counsel for the plaintiff stated that the costs had not been paid and moved for judgment in terms of the order of 30th April 1959. The relative minute reads:

"Mr. Hassan says that the pre-payment order made on the last trial date 30.4.59 has not been carried out and that costs had not been paid as agreed. He moves that judgment be entered for plaintiff as agreed on on that date.

Mr. Subramaniam says that he is unable to admit this as his proctor is absent today. He moves for an adjournment.

Mr. Hassan objects and says he is able t