MADDUMA ACHARIYAGE DAYARATNA ALIS PAULIS VS. MAHINDA DE SILVA - HON. P.R. WALGAMA, J

• Jurisdiction: Sri Lanka
• Court: Court of Appeal (Sri Lanka)
• Citation: 2017SCOA1311C1998Y
• Case Number: 2017SCOA1311C1998Y
• Date: 27 January 2017
• Case Name: MADDUMA ACHARIYAGE DAYARATNA ALIS PAULIS VS. MAHINDA DE SILVA - HON. P.R. WALGAMA, J
• Type of Document: Unreported judgment

1

Madduma Achariyage Dayaratna alis Paulis

Vs.

Mahinda De Silva - Hon. P.R. Walgama, J

Case No.CA 1311/98 (F)

DC Colombo Case No. 15872/L

Madduma Achariyage Dayaratna alis Paulis,
No.6, Mihiri Pedesa, Asiri Uyana,
Katubedda.

Presently at:

No. 945, Aluth Mawatha Road,
Colomo 15.

PLAINTIFF
Vs.

Mahinda De Silva,
No. 852/1, Aluth Mamatha Road,
Colombo 15.

DEFENDANT
AND NOW BETWEEN

Madduma Achariyage Dayaratna alis Paulis,
No.6, Mihiri Pedesa, Asiri Uyana,
Katubedda.

2

Presently at:

No. 945, Aluth Mawatha Road,
Colombo 15.

PLAINTIFF - APPELLANT
Vs.

Mahinda De Silva,
No. 852/1, Aluth Mamatha Road,
Colombo 15.

DEFENDANT - RESPONDENT

Before : P.R. Walgama, J

Council : A. K. Sumanasooriya for the Plaintiff Appellant.
Manohara de Silva PC with Hirosha Munasinghe for the Defendant - Respondent.

Argued on : 25.11.2014

Decided on : 27.01.2017

CASE NO- CA /1311/98 (F)- 27.01.2017- ORDER

P.R. Walgama, J

The matter to be resolved before this court is the preliminary objection raised by the Defendant Respondent, as to the maintainability of the instant appeal of the Plaintiff- Appellant on the basis that the Notice of Appeal and the Petition of Appeal has not been filed by the Attorney -at-law on the record of the Plaintiff-Respondent.

3

It is contended by the counsel for the Defendant Respondent that the notice of appeal has been signed by S.P.K. Gunaratne Attorney -at- law, and the Petition of Appeal has been signed by Mr. Sajeewa Gunaratne Attorney- at -law, do not bear the signature on record.

The journal entry dated 04.06.1992 bears testimony that the plaintiff has given the proxy to Mr. Bernard De Zoysa Attorney -at-law, which was never revoked. It is submitted by the counsel for the Respondent that as Mr. Bernard de Zoysa informed court that he intends to revoke the proxy and the court has granted a further date for the Plaintiff to file a fresh proxy. Eventually a fresh proxy has been filed by Mr. Sanjeewa Gunaratne. Further it is to be noted that there had not been a revocation of the earlier proxy filed by Mr Bernard De Zoysa Attorney- At- law.

In addition it is noted that there is no proof that Sajeewa Gunaratne and S.P.K. Gunaratne is one and the same person.

For brevity and convenience sake the relevant section of the Civil Procedure Code is reproduced herein below;

4

Section 27 (2)

"when so filed, it shall be in force until revoked with the leave of the court and after notice to the Registered Attorney by a writing signed by the client and filed in court, or until the client dies or until the registered attorney dies, is removed or suspended, or otherwise becomes incapable to act, or until all proceedings in the action are ended and judgment is satisfied so far as regards the client"

The counsel for the Defendant- Respondent has adverted court to Section 91 of the Civil Procedure Code which deals with the revocation of the proxy.

Section- 91

"every application made to court in the course of an action, incidental...