Wijesinghe V. Incorporated Council Of Legal Education

1963 Present : Sansoni, J.

D. WIJESINGHE, Appellant, and THE INCORPORATED
COUNCIL OF LEGAL EDUCATION, Respondent

S. C. 28 of 1961-C. R. Colombo, 73821/R. E.

    (1) Action instituted by a corporation-Plaint signed only by the proctor representing the corporation-Sufficiency of such signature-Civil Procedure Code, ss. 24, 25, 46 (1), 470-Council of Legal Education Ordinance (Cap. 276).

When a Corporation is represented by a proctor, a plaint filed on behalf of the Corporation would be sufficiently signed as required by section 470 of the Civil Procedure Code if it is signed only by the proctor; the plaint need not be subscribed by anyone else on behalf of the Corporation.

(2) Proctor's appearance for a party-Proxy-Presumption of validity and regularity attaching to its execution-Proxy given by Council of Legal Education-Should one of the attesting witnesses be called to prove due execution ?-Burden of proof-Courts Ordinance (Cap. 6), Second Schedule, Rule 4-Evidence Ordinance, s. 68.

Once the Court accepts and acts on a proxy filed in favour of a proctor, presumably because no defect appears on the face of the proxy, any party who desires to question the authority of that proctor has the onus of showing the want of authority. Accordingly, once the Court accepts and acts on a proxy given to a proctor by the Incorporated Council of Legal Education, when it is plaintiff in an action, the Court is entitled to assume, in the absence of evidence led to the contrary by the defendant, that the common seal of the Council was affixed to the proxy after due compliance with the require­ments of Rule 4 of the Second Schedule to the Courts Ordinance. In such a case it cannot be contended that, under section 68 of the Evidence Ordinance, the plaintiff must call at least one of the attesting witnesses to prove the execution of the proxy.

3 ) Landlord and tenant-Premises let by Incorporated Council of Legal Education- Notice to quit sent by Council's proctor-Validity-Acceptance by landlord' of rent from overholding tenant-Effect-Acceptance of late payments of rent from statutory tenant-Effect-Applicability of equitable principle of promissory" estoppel-Rent Restriction Act, No. 29 of 1948, s. 13 (1) (a).

In an action instituted by the Incorporated Council of Legal Education to have a tenant ejected from certain premises let on a monthly rent, the authority of the Council's proctor for having given the tenant notice to quit need not be proved if his authority to represent the Council in the action is, not questioned.

When a landlord accepts money sent to him as rent, from a tenant who overholds after receiving a notice to quit, a new contractual tenancy is not thereby created, unless it can be shown that the parties intended to and in fact created a new tenancy. If, for example, in every receipt issued it was stated that the payment was received " without prejudice to the notice to quit already given and the cause of action already arisen ", it is clear that the payments of rent were not accepted in respect of a new tenancy.

A monthly tenant (the defendant), before he became a statutory tenant, had been paying rent once in two months. After he became a statutory tenant, he could have lawfully relied on the tacit permission given by the landlord (the plaintiff) to continue to pay in that way. He did pay in that way until June 1954. But, from July 1954 the delay in making payments became longer and longer until there was gross and inexcusable delay just before the-present action was filed for ejectment of the tenant in terms of section 13(1) (a) of the Rent Restriction Act. Moreover, throughout the period of the statutory tenancy, the late payments of rent were accepted by the landlord without prejudice, which meant that they were not to affect the notice to quit.

Held, that the tenant had clearly failed to perform his obligatio

Click Here to Read the rest of this document