SC Clarifies Appearance by Attorney in Court Under Section 24

The Supreme Court recently delivered a judgment interpreting the concept of “appearance” under Section 24 of the Civil Procedure Code. The Court held that when an attorney appears on the instructions of a registered attorney representing a plaintiff, it constitutes an appearance for the plaintiff.

The case revolved around a hearing scheduled as the day fixed for trial. On this day, the plaintiff’s registered attorney moved for a postponement, citing personal reasons. Another attorney appeared in court on behalf of the registered attorney to make this request. However, the plaintiff himself was absent, as he was ill and unable to attend court, a fact supported by medical evidence.

The defendant did not object to the postponement request but instead moved to dismiss the plaint, arguing that the plaintiff’s absence constituted non-appearance. The District Court dismissed the plaint. The plaintiff subsequently filed to purge the default, providing evidence of his illness, but the DC rejected this motion after inquiry.

The Supreme Court emphasized that the appearance of an attorney on the instructions of the registered attorney should be treated as an appearance by the plaintiff. Since the registered attorney was representing the plaintiff, any attorney instructed by the registered attorney acted in continuity of that representation.

The Court also noted that the plaintiff had submitted credible medical evidence demonstrating his inability to attend the proceedings due to illness. Additionally, the plaintiff had appeared in earlier hearings, indicating good faith in pursuing the case.

“…A party is entitled to decide whether he should be present in Court or be legally represented in Court in terms of Section 24 of the Civil Procedure Code. In terms of the aforesaid provisions of our Code, a party is allowed to appear by his Registered Attorney – at – Law, and the section goes on to say that ‘’an Attorney – at – Law instructed by a Registered Attorney for this purpose represents the Registered Attorney – at – Law in Court’’.  If then a Registered Attorney – at – Law represents a party by virtue of his appointment, and specially where his appointment authorizes him to instruct another Attorney – at – Law – as it happened in this case – the Attorney at Law who moved for a date on 04.10.2006 represented the Registered Attorney. The question is whether there has been an appearance by the Plaintiff, and I entertain no doubt that there has been. The appearance of the Attorney – at – Law for the limited purpose of moving for a postponement was the appearance of the Registered Attorney – at – Law for that limited purpose, and that again, was the appearance of the party for such a limited purpose. It all boils down that there was no default of appearance on the part of the Plaintiff on the day in question and even Chapter XII which deals with default of appearance precipitates a dismissal of the plaint in Section 87 (1) of the Civil Procedure Code only when the Plaintiff makes default in appearing on the day fixed for the trial….”

– Justice A.H.M.D. Nawaz

Case No: SC / APPEAL / 120 / 2016 [Decided on 29.11.2024]

Before: Jayantha Jayasuriya, PC, CJ, A.H.M.D. Nawaz, J, Mahina Samayawardhena, J