Partition, legal representation
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Sri Lanka Law Reports |
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RANJITH PERERA AND ANOTHER
v DHARMADASA AND OTHERS
COURT OF APPEAL
SALAM, J.
CA 1754/2004
DC HORANA 5387/P
JANUARY 8,2008
Partition Law 21
of 1977 - Section 48 (4), Joint statement of claim - Trial date - Registered
Attorney absent - One claimant taking part in the proceedings - Sections 24,
27(2) Civil Procedure Code -Applicability - Procedural Law - Its importance -
Investigation of title? - Permission to conduct his own case - Not recorded? -
Fatal?
The 3rd and 4th
defendants-petitioners who had jointly nominated a registered Attorney-at-law
and filed a joint 'statement of claim sought to revise the judgment and the
interlocutory decree, on the basis that, they were unrepresented at the trial,
and that the trial Judge should not have put the 4th defendant-petitioner into
the witness box without legal assistance and permitted him to cross examine
when he had a registered attorney on record. The petitioners also allege that,
there was no investigation of title, and that, there was no settlement.
Held:
(1) As long as a
party to a case has an Attorney-at-law on record, it is the Attorney-at-law on
record alone, who must take steps and also whom the Court permits to take
steps. When the 4th defendant-petitioner attended Court without being
represented by his Attorney-at-law or a Counsel (Section 27(3)) the trial Judge
should have considered him as a party having failed to appear at the trial as
the Court has chosen to do so in the case of the 3rd defendant-petitioner.
Further there is no indication pointing to the 4th defendant-petitioner having
sought permission of Court to cross-examine the plaintiff or to present his
case in person either.
Per Abdul Salam,
J.
"As far as
the 4th defendant-petitioner is concerned by improperly extending the right of
audience to him at the trial, the trial Judge has proceeded on th basis that
the judgment and interlocutory decree were entered inter partes, this procedure
wrongly adopted by Court has deprived the 4th defendant-petitioner of the right
to invoke Section 48(4)".
(2) The trial
Judge had recorded at the commencement of the trial that the parties had
resolved the disputes and the Court has proceeded to hear evidence without
points of contest, before it was so recorded the trial Judge owed a duty to
explain to the 4th defendant-petitioner the manner in which the disputes have
been resolved and to make a contemporaneous reference to that fact in the
proceedings.
If the 4th
defendant-petitioner was a party to the compromise, need for cross examination
of the plaintiff by the 4th defendant-petitioner would not have arisen - this
clearly shows that the 4th defendant-petitioner was not a party to the
compromise recorded at the commencement of the trial.
(3) Omission to
give a party to a suit an opportunity of being heard is not merely an omission
of procedure but is a far more fundamental matter in that it is contrary to the
rule of natural justice embodied. There has been no investigation of title.
(4) The
protective character of procedural law has the effect of safeguarding every
person in his life, liberty, reputation, livelihood and property and ensuring
that he does not suffer any deprivation except in accordance with the accepted
rules of procedure - Dr. Amerasinghe in Femando v Fernando.
APPLICATION in
Revision from an order of the District Judge of Horana.
Cases referred to:
(1) Seelawathie
and Another v Jayasinghe 1985 2 Sri LR 266 .
(2) Hameed v Deen
and Others 1988 2 Sri LR 1.
(3) Fernando v
Fernando 1997 3 Sri LR 1.
(4) Siriya v
Amalee 60 NLR 269.
(5) Punchibanda v
Punchibanda
(6) W.G. Rosaleen
v H.B. Maryhamy 1994 3 Sri LR 262.
Chandana
Prematilaka for the 3rd and 4th defendant-petitioners.
Rohan Sahabandu
with Piyumi Gunatilaka for the plaintiff-respondent.
Cur.adv.vult.
March 19, 2008
ABDUL SALAM, J.
The petitioners
who were the 3rd and 4th defendants in the above partition action, have
presently applied to revise the judgment dated 1 July 2004 and interlocutory
decree entered thereon. They allege that they were unrepresented at the trial
and hence denied of a fair trial. Their position is that the learned trial
judge erred when he proceeded to decide the action interpartes against the 4th
defendant. It is averred in the petition that the learned trial judge should
not have put the 4th defendant-petitioner into the witness box without legal
assistance, when he had a registered attorney on record.
As a matter of
law, the petitioners contend that the District Judge concluded the case on the
same day it was taken up for hearing and thereby effectively shut out evidence
of the 3rd and 4th defendants regarding their title and had compromised his
sacred duty to investigate the title.
When unnecessary
details are filtered out the factual background relevant to the revision
application would appear to be uncomplicated. It involves a fundamental
question of law and how pertinently it had been applied in the circumstances
peculiar to the revision application.
The petitioners have jointly nominated a
registered Attorney to be on record. They filed a joint statement of claim
disputing the averments in the plaint. On the date the matter was set down for
trial the registered Attorney of the petitioners was absent. Accordingly both
petitioners were unrepresented. Yet, the 4th defendant-petitioner was present
at the trial.
The learned District Judge in the course of
the trial had allowed the 4th defendant to cross examine the plaintiff and also
present his case in person. Thereafter he had delivered judgment to partition
the land allotting certain undivided rights to the plaintiff and leaving the
balance rights unallotted.
Thus, the learned District Judge had
obtained the assistance of the 4th defendant to resolve the dispute by
effectually making him to participate throughout the trial. The record does not
indicate as to whether the 4th defendant-petitioner sought permission of Court
to conduct his own case. There is no indication pointing to 4th defendant-
petitioner having sought permission of Court to cross-examine the plaintiff or
to present his case in person either. In the absence of any specific mention
being made in proceedings to the contrary, I consider it as reasonable to
assume that the learned District Judge on his own had involved the 4th
defendant in the trial proceedings.
The main question
that arises for determination in this matter is the applicability of section
27(2) of the Civil Procedure Code. In terms of Section 27(2) aforesaid when an
appointment of a registered Attorney is made in terms of Section 27(l) of the
Civil Procedure Code, such appointment shall be in force until revoked with the
leave of Court and after notice to the registered Attorney by a writing signed
by the client and filed in Court.
The effect of an appointment of a
registered Attorney under Section 27(1) has been considered by this court on
many an occasion. Suffice it would be to cite the judgment in Seelawathie and
Anotherv Jayasinghe(1) and Hameed v Deen and Others(2) where in the former case
it was authoritatively held that as long as a party to a case has an Attorney-at-law
on record, it is the Attorney-at-law on the record alone, who must take steps,
and also whom the Court permits to take steps. It is a recognised principle in
Court proceedings that when there is an Attorney-at-law appointed by a party,
such party must take all steps in the case through such Attorney-at- aw.
Further, the established principle is that a party, who is represented by an
Attorney-at-law, is not permitted to address Court in person. All the
submissions on his behalf should be made through the Attorney-at law who
represents him.
The learned Counsel of the petitioners has
also cited the judgment in the case of Hameed v Deen (supra) in which it was
held that when there is an Attorney-at-law appointed by a party, every step in
the case must be taken through such Attorney-at-law. The appointment of the
Attorney-at-law under Section 25 of the Civil Procedure Code remains valid in
terms of Section 27(2) until all proceedings in the action are ended or until
the death or incapacity of the Attorney. The registered Attorney or Counsel
instructed by him alone could act for such party except where the law expressly
provides that any party in person should do any particular act.
The 4th defendant- petitioner has been
suddenly called upon to cross examine the plaintiff and later to present his
own case by the learned District Judge, immediately after the closure of the
plaintiff's case, disregarding the fact that there was a registered Attorney on
record. When the 4th defendant attended Court without being represented by his
registered Attorney or a Counsel as contemplated under Section 27(3) of the
Civil Procedure Code, the learned District Judge should have considered him as
a party having failed to appear at the trial, as the court had rightly chosen
to do in the case of the 3rd defendant-petitioner.
It is quite significant to advert to the
adverse consequences that flow from the learned judge's approach to identify
the proceedings as interpartes. As far as the 4th defendant-petitioner is
concerned, by improperly extending the right of audience to the 4th
defendant-petitioner at the trial, the learned District Judge has proceeded on
the basis that the judgment and interlocutory decree were entered interpartes.
This procedure wrongly adopted by Court has deprived the 4th defendant
petitioner of the right to invoke Section 48(4)(iv) of the Partition Act, No.
21 of 1977. Had the learned District Judge followed the provisions of the Civil
Procedure Code and considered the 4th defendant-petitioner as a party who had
failed to appear at the trial or as a party in default of appearance, the 4th
defendant-petitioner could have legitimately exercised his rights under
48(4)(iv) of the Partition Act to obtain Special Leave of Court to invoke the
jurisdiction of the original Court to amend or modify the interlocutory decree
to such extent and in such manner as the Court could have accommodated the
entitlement, if any, of the 4th defendant-petitioner.
On the contrary, the irregular procedure adopted
by Court compelling the 4th defendant-petitioner to participate at the trial in
person has ended up in a miscarriage of justice, in that the 4th
defendant-petitioner had to forego the right conferred under 48(4)(iv) of the
Partition Act. It is of much importance to observe that the learned trial judge
recorded at the commencement of the trial on 1 July 2004 that the parties have
resolved the disputes and the Court proceeds to hear evidence without points of
contest. Before it was so recorded the learned District Judge owed a duty to
explain to the 4th defendant petitioner the manner in which the disputes have
been resolved and to make a contemporaneous reference to that fact in the
proceedings. As there is no such reference found in the proceedings, I am not
disposed to take it for granted that the learned District Judge has either
consulted the 4th defendant-petitioner regarding the settlement or enlightened
him as to its consequences. Had the learned District Judge taken the precaution
to ensure that the 4th defendant-petitioner also would be bound by
such a settlement, he would have specifically referred to the 4th defendant as
a party to the settlement.
On the other hand, if the 4th
defendant-petitioner was a party to the compromise, the need for
cross-examination of the plaintiff by the 4th defendant-petitioner would not
have arisen. Above all, when the 4th defendant-petitioner had purportedly
cross-examined the plaintiff posing only one question suggesting that Johanis
was entitled to only 1/6th share and not 1/2 as claimed by the plaintiff, the
learned trial judge ought to have realized that the 4th defendant-petitioner
was trying to resile from the compromise. Without clarifying this from the 4th
defendant-petitioner as to whether he was trying to pull himself out from the
compromise the learned Trial Judge appears to have simply raised two points of
contest and answered the same on the same day. This clearly shows that the 4th
defendant-petitioner was not a party to the compromise reached at the
commencement of the trial and the learned District Judge in fact should have
raised points of contest at the commencement of the trial itself.
The learned District Judge does not appear
to have taken into account the miserable plight of the 4th defendant-petitioner
who should not have been held responsible for the dereliction of duty of the
registered Attorney. The 4th defendant-petitioner was in his. eightieth year
when he was suddenly called upon to cross-examine a witness in a contested
partition case and to present his case too. Even a lawyer with experience
cannot be expected to discharge his functions satisfactorily if he is
confronted with the difficulty which the 4th defendant-petitioner had to face.
The learned District Judge possibly in his
enthusiasm to dispose of the case without delay has lost sight of the
importance of the law of Civil Procedure. As has been stated by Dr. Amerasinghe,
J. in Fernando v Fernando(3) "civil procedural laws represent the orderly,
regular and public functioning of the legal machinery and the operation of the
due process of law. In this sense the protective character of procedural law
has the effect of safeguarding every person in his life, liberty, reputation,
livelihood and property and ensuring that he does not suffer any deprivation
except in accordance with the accepted rules of procedure.
Although
recklessness on the part of the 4th defendant-petitioner and dereliction of
duty by the registered Attorney cannot be denied, yet the irregular procedure
adopted by the learned Judge is totally unwarranted and unjustifiable.
In Siriya v Amalee et.al (4) it was held
that an omission to give a party to a suit an opportunity of being heard is not
merely an omission of procedure but is a far more fundamental matter in that it
is contrary to the rule of natural justice embodied in the maxim audi alteram
partem.
In the result the manner in which title has
been investigated by Court does not appear to be consistent with the law that
is required to be followed in the investigation of such title.
In the circumstances it is my view the
irregular procedure followed by the learned District Judge has ended up in a
miscarriage of justice which transcends the bounds of procedural error.
It is appropriate to quote the relevant
passage from the judgment of Soertsz, J. Punchibanda v Punchibanda(5) that has
been cited with approval by his Lordship S.N. Silva, J. (as he then was) in
W.G. Rosalin v H.B. Maryhamy(6) which reads as follows:
"This Court
has often pointed out that when settlements, adjustments, admissions, & c.,
are reached or made, their nature should be explained clearly to the parties,
and their signatures or thumb impressions should be obtained. The consequence
of this obvious precaution not being taken is that this Court has its work
unduly increased by wasteful appeals and by applications being made for
revision or restitutio in integrum. One almost receives the impression that
once a settlement is adumbrated, those concerned, in their eagerness to
accomplish it, refrain from probing the matter thoroughly lest the settlement
fall through. This is a very unsatisfactory state of things and it is to be
hoped that a greater degree of responsibility will be shown on these matters by
both judges and lawyers".
For the foregoing
reasons it is my view that the application of 4th defendant-petitioner should
be allowed. The 3rd defendant petitioner has no ground to challenge the
propriety of the impugned judgment by way of revision as he is entitled to
invoke section 48(4)(iv) of the Partition Act. Hence the application of the 3rd
defendant-petitioner is refused.
The judgment and
interlocutory decree are accordingly set-aside and the learned District Judge
is directed to investigate the title afresh, affording both the 3rd and 4th
defendant petitioners an opportunity to participate at the trial.
I make no order as to costs.
Application
allowed.
Judgment/interlocutory
decree set aside.
Trial to proceed.
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