SECTIONS 92 AND 24 OF THE CPC- 114 OF THE EVIDENCE ORD - POWERS OF THE LAWYER AFTER APPOINTMENT IS MADE-COMPROMISE -
SECTIONS 92 AND 24 OF THE CPC- 114 OF THE EVIDENCE ORD - POWERS OF THE LAWYER AFTER APPOINTMENT IS MADE-COMPROMISE -
A settlement entered in the presence of an attorney-at-law of a party who was absent in court can assail the settlement on the ground that he was not present in court at the time the attorney-at-law adjusted the matter. When an attorney-at-law acts for a party within the authority granted to him by the proxy and enters into a settlement, such settlement cannot be assailed merely on the ground of the party not being present in court at the time the compromise was recorded.
Abdus Salâm, J.
The plaintiff-petitioner-petitioner (hereinafter referred to as the "plaintiff") filed action against the defendant-respondent-respondent (hereinafter referred to as the "defendant") seeking inter alia a declaration that the beneficial interest of several sums of money as borne out by various fixed deposit certificates and saving certificates, details of which are set out in paragraph 10 of the plaint aggregating to Rs. 10,694,983. 87 remain with the plaintiff and that the same is held by the plaintiff in trust for the defendant. On 10-07-98 the action was wholly adjusted by means of a compromise reached between the parties and accordingly the district Judge passed decree. Significantly, one of the relevant terms of compromise related to the absolute entitlement of the plaintiff to withdraw the funds deposited by the defendant which was conceded by the latter. Under term of settlement No 4 it was specifically agreed between the parties that the plaintiff is entitled to recover every sum of money deposited by the defendant in various banking institutions as at the date of the plaint and referred to therein.
On 28-07-98 the defendant filed a motion seeking the correction of the proceedings of 10.07.1998 on which date the compromise was recorded. The application of the defendant came up for inquiry on 14-12-98. At the inquiry it was recorded that the plaintiff will not take steps to recover monies beyond what remained in the banks as credit balance on 10-07-98. Apparently the goal intended to be achieved by the defendant by the said undertaking was to indirectly have himself absolved from the responsibility of having to satisfy the entirety of the decreed amount, based on the compromise. This position is quite clear from the allegation made in the plaint that the defendant had made several withdrawals from the said accounts referred to in paragraph 10, prior to his being served with the enjoining order that restrained him from dealing with the said accounts.
Be that as it may, a notable development in the case was the application made by the plaintiff on 09-06-99 purportedly under section 839 of the Civil Procedure Code to expunge the said undertaking dated 14-12-98 on the following grounds.
1. That the order made on 14-12-98 based on the purported undertaking has been entered per incuriam in that the plaintiff did not subscribe to the said settlement.
2. That the petitioner was not present in court on 14.12.1990 and the court did not have the statutory right to interpose limitations on the writ of execution of the decree.
At the inquiry into the application to have the said undertaking expunged from the record, the petitioner gave evidence and called another witness. The application of the petitioner to lead the evidence of the stenographer who recorded the proceedings on the relevant date was turned down by the learned district Judge for good reasons. At the termination of the inquiry the learned district Judge disallowed the application of the petitioner.
The petitioner has urged that the undertaking given by the petitioner to restrict her execution proceedings, cannot be considered as having any binding effect on the petitioner since she was neither present in court nor has she signed the proceedings to signify her willingness.
The learned counsel of the petitioner has contended that it is the entitlement of the decree holder to the fruits of the decree and the registered attorney at law is not entitled to deny her such an entitlement without her formal approval in the form of a duly signed document. Further the counsel submits that section 24 of the Civil Procedure Code does not authorize the registered attorney at law to act capriciously and thereby deny the benefits decreed by Court. Having considered the circumstances in which the undertaking under consideration has been recorded, I am of the view that the formal approval of the client in writing is not necessary for an attorney-at-law to enter a compromise on behalf of the client. In any event the allegation that the attorney-at- law had acted in a capricious manner has not been proved by the petitioner.
In the case of Isek Fernando vs Rita Fernando 1999 3 SLR at page 29 it was held that section 24 of the Civil Procedure Code is demonstrative of the fact that an appearance of a party may be by an attorney-at-law. When the client requested attorney-at-law to make an application it is an application the attorney-at-law makes on behalf of the party he represents for the administration of justice.
At this stage it may be useful to refer to the decision in the case of Charles Perera Vs Shantha Gunasekara CA 2044/2001. The main question that arose for determination in that case was whether a settlement entered in the presence of an attorney-at-law of a party who was absent in court can assail the settlement on the ground that he was not present in court at the time the attorney-at-law adjusted the matter. His Lordship Gamini Amaratunga, Judge of the Court of Appeal (as he was then) held that the attorney-at-law for the petitioners had acted within the authority granted to him by the proxy and therefore the settlement cannot be assailed merely on the ground of the party not being present in court at the time the compromise was recorded.
According to the records maintained by the learned district Judge the petitioner was present in court on the day the undertaking had been recorded. The record bears out that the petitioner has been adequately notified of the undertaking proposed to be recorded at the instance of the defendant. After several postponements the motion of the defendant to correct paragraph 4 the terms of the settlement was taken up for consideration on 14-12-98, in the presence of the petitioner, when she was represented by a President's Counsel on the instruction of Mr. Mangala Ranaraja, attorney-at-law. In the circumstances the burden of controverting the record maintained by the learned district Judge was on the petitioner. As has been clearly determined by the learned district Judge, he could not have possibly made a mistake as regards the presence of the petitioner in court, on the crucial date, on account of the details enumerated in his order.
In terms of section 92 of the Civil Procedure Code with the institution of the action, the court commences a journal entitled as of the action, in which shall be minuted, as they occur, all the events in the course of the action, i.e., the original application, and every subsequent step, proceeding, and order; each minute shall be signed and dated by the Judge, and the journal so kept shall be the principal record of the action. The Journal entry so kept and maintained by the district Judge himself presumes to be genuine and the burden is on the party who desires to dispute the contents of the Journal entry to establish such a claim.
In the case of Seebert Silva Vs Aronona Silva 60 NLR page 272 it was held that the court is entitled to presume the genuineness in terms of section 114 of the Evidence Ordinance of the Journal entries maintained under the Civil Procedure Code. The genuineness attached to the journal entries and the rebuttable presumption arising from the same are part and parcel of our procedural law that had been followed for at least over a century.
The allegations made by the petitioner in the district court alleging that she was not present on the crucial day is an accusation of serious nature made against her registered attorney-at-law, indirectly against the president’s counsel and the lower court as to the professional integrity of the former and regularity of the Journal entries kept by the latter.
Surprisingly the defendant-petitioner does not appear to have made any complaints alleging professional misconduct against the registered attorney-at- law or Mr Ikaram Mohamed PC both of whom come under the disciplinary control of the Supreme Court.
Having address my mind to the well reasoned out finding of the learned district Judge, as regards the serious allegation made by the petitioner, I am not inclined to interfere with the said finding, as the said finding does not appear to me as unreasonable, illegal or inconsistent with the material available.
The defendant has also raised the question of laches on the part of the plaintiff in invoking the inherent jurisdiction of the district court to have the undertaking relating to the writ of execution expunged. The interval between the date on which the impugned undertaking had been recorded and the application made to the district court counts almost 6 months. The explanation given by the petitioner to purge her laches is prima-facie untenable.
For the above reasons, I am not disposed to accept the petitioner's case as one in which exceptional circumstances exist to warrant the grant of reliefs prayed for in the petition. Consequently, I dismiss the application of the petitioner for revision without costs.
Judge of the Court of Appeal
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ഏന്ഡ്
CA Appeal No. CA 988/2000
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