Ups and downs in appealing lower Court orders | Daily News

Ups and downs in appealing lower Court orders

An individual who had brokered a deal for the sale of property of a certain business concern complained in a District Court that he had not been paid his brokerage commission and filed a suit, suing the company concerned to recover his money. However, due to a technical objection taken by the party filing the answer, the case was moved to the Provincial High Court.

The broker so called seemed to be out of luck because the Petitioner in the High Court submitted that the alleged intermediary had not engaged in any form of brokerage activity for the sale of the property.

The Supreme Court finally heard a leave to appeal application filed by the alleged broker (Jayasiri Edirisinghe vs. City Properties Pvt Ltd., S.C. (CHC) Appeal No. 34/08 S.C.H.C.L.A. 18/08)) against an order that was made by the High Court Judge to the effect that the petitioner (respondent in the High Court) should name the person in the petitioner company with whom he had an oral agreement concerning the so-called brokerage deal that he had performed.       

This is how the facts of the case were recorded in the Supreme Court judgement:

“It is noted that the respondent based his action on an oral agreement which he alleged to have been entered into with the petitioner. When the matter was taken up for trial on 14-05-07, the petitioner objected to issue No. 2 raised by the respondent on the ground that the plaint did not disclose either the date of the oral agreement nor did it disclose the identity of the person with whom such agreement had been entered into. The Learned High Court Judge thereupon made Order marked A6 (translated into English).”

The respondent probably took the order too literally because the High Court order was to “take steps”, and he had taken the steps he preferred instead of being cognizant of the instructions in the court order.

The High Court order had specified: “As the petitioner is a company, it is also necessary to specify with clarity the identity of the authorized representative of the petitioner with whom the oral agreement was entered into. Since this has not been disclosed, I reject the proposed issue No. 2. I grant a date to the respondent to consider this and take steps.”

The respondent did not prefer an appeal against this order marked A6. However, he amended his answer.

The respondent while filing amended papers in the High Court quite flagrantly did not address the issue of who in the company he had spoken to about the brokerage of the land, as ordered by Court.

The Supreme Court judgement notes: “The Learned High Court Judge again made an order marked A16, stating that it was the duty of the Court to frame issues and directed the respondent to disclose the name of the employee with whom the respondent entered into an oral agreement. The petitioner sought leave to appeal against the said order marked A16 and leave was granted by this Court on July 4, 2008.”

Non-compliance with the court order was frowned upon by the Supreme Court as well. It was rather strange that the petitioner had filed new papers but neglected to mention the person in the respondent company that he had spoken to about the brokerage, a fact that he was required to do by Court order.

The Supreme Court would not forgive this omission and dismissed the petitioner’s appeal noting that the effect of the clarification sought by High Court was merely to find out the real dispute between the correct parties which would “make easier the task of administering justice”, and will not cause any injustice to the petitioner.

The Appellate Court – in this instance, the Supreme Court – did not interfere with the exercise of such discretion by the trial Judge and dismissed the petitioner’s appeal against the High Court order.

In another case that came up before the Court of Appeal an order of the District Judge to dismiss a case because the plaintiff was not present in court, and his attorney had no instructions, was challenged (Mihindukulasuriya Waduge Robert Fernando vs. Kottawa Iniyage Wilbert, C.A. Case No. 994/1997 (F)). As in the aforementioned case a lower Court order had been appealed against by an insistent party.

Court of Appeal held among other things: “So it is clear that when an attorney-at-law, be it the registered attorney or counsel intimates to Court that he has no instructions in the case, there cannot be an ex-parte trial nor could there be a dismissal of the plaint. The trial judge may proceed with the inter partes trial. The trial judge may even proceed to notice the plaintiff or defendant because it may well be that the plaintiff may have encountered a difficulty that prevented him from instructing his registered attorney or counsel.”    

In the case under review the attorney-at-law is not present in court and the District Judge dismisses the case notwithstanding the fact that the procedure laid down in the relevant section in the Civil Procedure Code grants the Judge the discretion to make an appropriate order considering all of the circumstances of a plaintiff’s absence. The discretion should have been exercised to have noticed the plaintiff to be present in court on another day, taking due consideration of the fact that the plaintiff’s attorney was present in Court, though he pleaded he had no instructions.

The Court of Appeal judgement held: “Section 91 A (3) of the Code (of Civil Procedure) states that the Court may, for sufficient cause, either on the application of the parties or of its own motion, advance, postpone or adjourn the trial to any other date upon such terms as to costs or otherwise as to it shall seem meet. It was for this reason that it was held in Ven. Sumanatissa v Harry Dias (2009) (1) Sri.LR 31 that the Court has to have regard to the past history of the case. Sufficient cause may lie in the fact that the case record displays, as in this case, constant presence of the plaintiff in Court, whereas absence from Court is just an isolated instance on the adjourned day.”

A single day’s absence from Court should not have merited a dismissal and so it’s seen that orders by judges in the lower Courts can either be commonsensical, or needlessly harsh and indifferent to codified law.

(The writer can be contacted at  [email protected]).

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