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June 27. janPresent: Wood Renton J.
MARIAPILLAI v. SAVERIMUTTU.
375—P. C. Jaffna, 936.
Appeal – -Cancellation of a previous order for maintenance—Order notappealable—Revision—Ordinance Vo. 19 of 18891 se. 3. 10. 14.mid 17.
No appeal lies against an order made under section 10 of Ordi-nance No. 19 of 1889 cancelling a previous order for maintenance.The propriety of such an order can be brought before the SupremeCourt by way of revision.
rpHE appellant in this case appealed against an order madeX under section 10 of Ordinance No. 19 of 1889 cancelling aprevious order for maintenance.
J. Joseph, for the respondent, took the preliminary objectionthat no appeal lay from the order complained of. The law regardingthe right of appeal in maintenance cases is contained in section 17 ofOrdinance No. 19 of 1889. This section gives a right of appeal onlyfrom orders made under sections 3 and 14 of the Ordinance. Anorder cancelling an order for maintenance is one which falls undersection 6, and is therefore not appealable. Counsel cited Puncho-. homy v. De Silva,1 Fernando v. Iamperumall.
Tisseveresinghe, for appellant.—Section 17 cannot be said to- contain the whole law regarding appeals in maintenance cases.Lawrie J. dissented from the ruling in Fernando v. IamperumalandBonser, CJ. held in Eina v. Eranerisz that Lawrie J. was right in hisdissent. Counsel also referred to Justina v. Arman and Perera v.Nonis* Perera v. Podi SinnoJ Tissehamy v. Samuel Appuf
June 27, 1911. Wood Renton J.—
The question raised by this appeal, at the stage which it has atpresent reached, may be shortly stated thus. The learned PoliceMagistrate at Jaffna has made an order, under section 10 of Ordi-nance No. 19 of 1889, cancelling a previous order for maintenance infavour of the appellant. There can be no doubt but that the proprietyof that order can be brought before this Court by way of revision.But the question to be decided at present is whether or not it can bemade the subject of ah appeal On that point the authorities are as
(1909) 12 N. L. R. 263.
(1901) 5 N. L. R. 243.
• l902) 6 AT. L. R. 334t.
1 (1898) 4 N. L. R. 194.*(1892) 2 C. L. R. 88.
8 (1900) 4 V, L< R. 4t
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follows. In Fernando v. lamperumaU1 it was held by the Full Court,as it was then constituted, that no appeal lies against the refusalof a Police Magistrate to make an order for maintenance underOrdinance No. 19 of 1889. It will be observed that that, decisionis posterior in point of time to section 39 of the Courts Ordinance,which confers on the Supreme Court its general powers of appellatejurisdiction. Of the three Judges by whom it was decided, however,one, Mr. Justice Lawrie, dissented. In the case of Eina v. EranerisSir John Bonser, C.J., referred obiter to the case of Fernando v.lamperuma!? which he cited as Selestina v. Perera,l the second oftwo heads under which it is reported, and said that he thought theopinion of Mr. Justice Lawrie was clearly right. The only point tobe decided in that case, however, was whether an appeal lies froman order dismissing an application for maintenance. In Puncho-hamy v. De Silva? Mr. Justice Browne, following the case of Fernandov. lamperuma!? by which he held himself to be bound, decided that noappeal lies from an order cancelling an order for maintenance undersection 10 of Ordinance No. 19 of 1889. In Perera v. Podi Singho?Chief Justice Bonser held that under section 3 of Ordinance No. 19 of1889 the Magistrate may make two orders, an order for maintenanceor an order dismissing the application, and that in either case theorder may be appealed from, and he indicated that in his opinion thefirst decision above-mentioned was not an authority to be followedsince, when the case, in regard to which Chief Justice Burnside andMr. Justice Lawrie had already differed, came on for argumentbefore the Full Court, counsel had agreed to take the decision of theCourt without further argument. The case of Tissehamy v. SamuelApptfi was also a Full Court decision. It was there held that theorder of a Magistrate who, after hearing evidence in a case ofmaintenance, declines to make an order for maintenance, is one thatis appealable to the Supreme Court under section 17. of OrdinanceNo. 19 of 1889. In the cases of Justina v. Arman and Perera v.Nonis,6 my brother Middleton and I declined to extend the principleof the decision in Tissehamy v. Samuel Appu5 to applications formaintenance which had been dismissed otherwise than on themerits.
It will appear from the brief review that I have just given of thestate of our case law on the subject, that the conclusion arrived at inFernando v. Iamperumal1 in 1892 has been held to be wrong only incases coming under section 3 or section 14 of Ordinance No. 19 of1889, both of which are expressly mentioned in section 17. Iam notaware of any case in which it has been held that an appeal lay undersection 10, and my own experience in Ceylon leads me to think thatsuch cases have hitherto been dealt with in revision. Under these
1 (1392) 2 C. L. R. 8S.4 (190J) 6 N. L. R. 243.
* [1900) 4 N. L. R. 4.*.[1902) -5 N. L. R. 334.
5 [1898) 4 N. L. R. 194.• [1909) 12 N. L. R. 263 ; 1 Cur. L. H. 120-
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circumstances I am not prepared, sitting as a single Judge, todepart from that practice now, and 1 am all the less inclined to do so,because it is by no means clear to my mind that it is wrong. It mustbe remembered that Ordinance No. 19 of 1889 creates a specialstatutory procedure in maintenance cases. Jt is posterior in dateto section 39 of the Courts Ordinance, and section 17 confers a rightof appeal under it only in the case of persons wh o may be dissatisfiedwith orders made by a Police Magistrate under section 3 or undersection 14. I think that it may fairly be argued that the effect ofsection 17, subject to the glosses which have been put upon it by thedecisions above referred to, is to limit the right of appeal to casesthat can be brought under section 3 or section 14, and there arereasons of substance which may justify such an interpretation of thelaw. We have already held, in a decision that is binding upon me,that it is still open to an applicant, here as in England, to renewher application in cases—I am here stating the Ceylon and not theEnglish practice—where it has been dismissed otherwise than onthe merits. The Full Court has held that a case where there hasbeen an adjudication on the merits can be brought within theprovisions of section 3, and therefore within those of section 17.Section 17 contains, however, no reference to section 10. In verymany of the cases that may be decided, under that section—casesturning upon modifications of rates of maintenance that havealready been allowed—any mistake that may be made by the Courtof first instance can be adequately dealt with in revision, and itwould be inconvenient if a general rights appeal under section 10were recognized. The case may be put down to be mentioned beforeme in revision.
After hearing counsel in revision, His Lordship affirmed the orderappealed against.
MARIAPILLAI v. SAVERIMUTTU