LAL AMARASINGHE VS SHASHIKA WICKREMASINGHE

• Jurisdiction: Sri Lanka
• Court: Court of Appeal (Sri Lanka)
• Citation: 2022SCOA134C2014Y
• Case Number: 2022SCOA134C2014Y
• Date: 26 September 2022
• Case Name: LAL AMARASINGHE VS SHASHIKA WICKREMASINGHE
• Type of Document: Unreported judgment

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LAL AMARASINGHE

VS

SHASHIKA WICKREMASINGHE

CA RII No/ 134/14
DC Moratuwa Case No: 227/SPL

In the matter of an Application for Restitutio in Integrum and/or Revision in terms of Article 138 of the Constitution.

Lal Amarasinghe
113/9, Duwawatte Road,
Moratuwa

Plaintiff

Vs.

1. Shashika Wickremasinghe,
113/8, Duwawatte Road,
Moratuwa.

2. Moratuwa Municipal Council,
Moratuwa.

Defendants

AND NOW BETWEEN

Shashika Wickremasinghe,
113/8, Duwawatte Road,
Moratuwa.

1st Defendant- Petitioner

2

Vs.

1. Lal Amarasinghe
113/9, Duwawatte Road,
Moratuwa.

Plaintiff- Respondent

2. Moratuwa Municipal Council,
Moratuwa

2nd Defendant- Respondent-Respondent


AND NOW BETWEEN

Shashika Wickremasinghe,
113/8, Duwawatte Road
Moratuwa.

1st Defendant-Petitioner-Petitioner

1. Lal Amarasinghe
113/9, Duwawatte Road,
Moratuwa.

Plaintiff- Respondent- Respondent

2. Moratuwa Municipal Council,
Moratuwa.

2nd Respondent- Respondent

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Before : D.N. Samarakoon, J.
B. Sasi Mahendran, J.

Counsel : Upul Kumarapperuma with Shellamy Gunarathna for the 1st Defendant- Petitioner

Dilan Perera for the Plaintiff- Respondent

Written Submissions On : 06.09.2022 (by the Petitioner)

06.09.2022 (by the Plaintiff- Respondent-Respondent)

Argued on : 28.07.2022

Decided on : 26.09.2022

B. Sasi Mahendran, J.

The 1st Defendant-Petitioner-Petitioner (hereinafter referred to as "the 1st Defendant") by Petition dated 08th May 2014, prays for this Court to exercise its restitutionary jurisdiction in terms of Article 138 of the Constitution to set aside the Order of the learned Additional District Judge of Moratuwa dated 21st June 2011 (as per Journal Entry No. 19) to hear the matter ex parte on the ground that he mistakenly applied Section 84 of the Civil Procedure Code.

The substantial point for consideration is when the Registered Attorney informs the Court that she has no instructions then what is the Order the learned Trial Judge could make? Should it be an Order to hear the case ex parte or inter-partes?

The facts of this case, in brief, concern an action instituted by the Plaintiff- Respondent-Respondent (hereinafter referred to as "the Plaintiff") against the 1st Defendant and the 2nd Defendant-Respondent-Respondent to restrain the 1st Defendant from constructing a house on premises, adjacent to that of the Plaintiff's, and within a 120 feet radius from the Bolgoda River, above the height of 27 feet. In terms of Circular No. 17 dated 29th November 2006 (marked "A2") issued by the Urban Development Authority, any building constructed within an 80 to 120 feet radius of the riverbank cannot exceed 27 feet. Upon the Plaintiff's application for interim relief being supported

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ex parte, a notice of interim injunction was issued on the 1st Defendant. The 1st Defendant filed his statement of objections stating that requisite approvals from the Urban Development Authority and the Municipal Council to construct to a height of 39 feet had been obtained.

The trial was to take place on 15th November 2010, but it was postponed on personal grounds of the Counsel for the 1st Defendant. On the next date of trial (i.e. 22nd February 2011), the case was re-fixed for 20th May 2011 since there was a possibility of a settlement. On 20th May 2011, the Court was informed that no settlement was forthcoming, and the trial was fixed for 21st June 2011. On that day, the case was re-fixed for ex parte hearing on 18th July 2011 as the Registered Attorney for the 1st Defendant informed Court that she had not received instructions. The case was tried ex parte on 14th October 2011. The Plaintiff gave evidence. On being satisfied that the Plaintiff was entitled to the relief claimed, the learned Additional District Judge entered judgment on 11th November 2011 in favour of the Plaintiff. Consequently, a copy of the decree was served on the 1st Defendant.

The 1st Defendant then filed a Petition (dated 04th April 2012 - marked "A8") in terms of Section 86(2) of the Civil Procedure Code to vacate the judgment and decree. The 1st Defendant claimed that a serious illness prevented him from participating in the trial and giving instructions to his Attorney-at-Law. An inquiry was conducted, at which the 1st Defendant, a Radiologist, and an X-Ray Technician gave evidence. On 31st March 2014, the learned Additional District Judge refused the application to vacate the judgment and decree.

The 1st Defendant is thus before this Court seeking restitutio-in-integrum on the basis that the learned Trial Judge misconstrued the law by, among other things, deciding to hold an ex parte trial.

Section 84 of the Civil Procedure Code which deals with the default of a Defendant reads:

If the defendant fails to file his answer on or before the day fixed for the filing of the answer, or on or before the day fixed for the subsequent filing of the answer or having filed his answer, if he fails to appear on the day fixed for the hearing of the action, and if the court is satisfied that the defendant has been duly served with summons, or has received due notice of the day fixed for the subsequent filing of the answer, or of the day

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fixed for the hearing of the action, as the case may be, and if, on the occasion of such default of the defendant, the plaintiff appears, then the court shall proceed to hear the case ex pane forthwith, or on such other day as the court may fix. [emphasis added]

On the day in question, the Journal Entry notes that the Registered Attorney appeared on behalf of the 1st Defendant. However, the Registered Attorney informed Court she had no instructions. The Journal Entry reads:

The term "appear" must be interpreted to mean an appearance by the Registered Attorney of the 1st Defendant. As a result, the appearance of the Registered Attorney for the 1st Defendant alone in the absence of the 1st Defendant itself constituted a valid appearance. This is buttressed by the following line of authorities:

In Perumal Chetty v A. Goonetilleke 4 Balasingham's Reports 2, his Lordship Hutchinson C.J. treated an appearance of the Proctor as the appearance of the Defendant.

In Cannon v. Telesinghe 30 NLR 372 his Lordship Akbar J. held:

"Prima facie, therefore, the words "the defendant shall not appear or sufficiently excuse his absence" can only mean the defendant shall not appear in person or by Proctor or sufficiently excuse his absence when he does not so appear.

Mr. Ranawaka, however, referred me to a case reported in 3 Browne's Reports 1. It is true that Browne A.J. construed the word "appearance" as meaning "being personally present," but it will be seen from his judgment that his remarks are really obiter. I, therefore, prefer to follow the later judgment of Hutchinson C.J. reported in 4 Balasingham's Reports 2, where he expressly held the contrary."

In Alima Umma v. Siyaneris [2006] 1 SLR 22, his Lordship Amaratunga J. held:

"In terms of Section 24 of the Civil Procedure Code, the registered attorney or an attorney at law instructed by the registered attorney can represent a party to the action in Court. If the registered attorney is in Court and represents the party in Court, that is an appearance for the party even if the party is not physically present in Court. Andiappa

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Chettiar vs Sanmugam Chettiar. In such a situation a Court cannot dismiss the action for the absence of the party."

In Kandasamy v. Kandasamy [2006] 2 SLR 260 his Lordship Wimalachandra J. held:

"However, on the trial date if the defendant does not appear but an Attorney-at-Law appears on his behalf and acts and pleads on his behalf, the defendant is deemed to have duly appeared before Court......

When sections 84 and 144 of the Civil Procedure Code are read with section 24 of the Code, it appears that it is not necessary for a defendant to be present in person, but he is deemed to have duly appeared before Court when he is represented by the registered Attorney-at-Law or an Attorney-at-Law on the instructions of his registered Attorney-at- Law."

The reason Courts have given such an interpretation is because of Section 27 of the Civil Procedure Code which deals with the appointment of a Registered Attorney. This Section reads:

1) The appointment of a registered attorney to make any appearance or application, or to do any act as aforesaid, shall;

..........

..........

...........

...........

2)

a) Where a party who appoints a registered Attorney is a natural person, a memorandum nominating a legal representative for the purpose of the legal proceedings in the event of the death of such party before the final determination of the proceedings, shall also submitted.

b) The memorandum referred to above shall, substantially be in the form specified in From No. 7A of the First Schedule hereto.

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c) The Provisions of Section 393 shall apply in regard to the nomination of such legal representatives and filling of such memorandum.

3) When an appointment under subsection (1) is filed, an appointment of a registered attorney shall be in force until-

a) Revoked by the...