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Present: Mr. Justice Wendt.
BENNO NONA v. DINERIS PERERA.
P. C., Colombo (Addl.), 8,636.
Maintenance, order for—Previous application—Non-proof of maintenancewithin one year—Dismissal—Ees judicata—Second application.
Where an -application for the maintenance of an illegitimatechild was dismissed on the ground that there was no evidence thatthe defendant had at any time within twelve months next after thechild’s birth maintained it or paid money for its maintenance, orthat he ever ceased to reside in the Island, and where a secondapplication was made by the mother in respect of the same child,—Held, that the dismissal of the first application operated as resjudicata, and that the second application was barred.
PPEAL from an order of the Additional Police Magistrate ofColombo (M. S. Pinto, Esq.). In April, 1908, the applicant
proceeded under the provisions of Ordinance No. 19 of 1889 andobtained an order condemning the defendant to pay Rs. 7 permensem for the maintenance of his illegitimate child, which was thenfive years old. The defendant appealed from this order, and theSupreme Court reversed the order of the Magistrate and dismissed;he application, on the ground that there was no evidence that thedefendant had at any time within twelve months next after the.tjrth of the child maintained it or paid money for its maintenance,
»■ (1908) n N. L. R. 300.
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ISOS. or that he ever ceased to reside in the Island. In 1908 the applicantOctober 15. made a second application. The Police Magistrate, on objectiontaken by the defendant, held that the judgment of the SupremeCourt in appeal on the first application operated as res judicata, anddismissed the application.
Tambayah, for the applicant, appellant.
H. Jayewardene (with him Batuwantudawe), for the defendant,respondent.
October 15, 1908. Wendt J.—
This is an appeal by the complainant against the dismissal by theMagistrate of an application for an order for maintenance in respectof her illegitimate child aged six years. *
The respondent, when he appeared in the Police Court, put in aplea of res judicata, alleging that his liability to maintain the childin question had been finally adjudicated upon a previous applicationof the complainant’s in that behalf. On that previous applicationthe Magistrate made an order in the complainant’s .favour, but therespondent appealed; and this Court, on June 30, 1908, allowed theappeal, and dismissed the complainant’s application, on the groundthat, the child being over five years old, the complainant had failedto prove, as required by section 7 of the Maintenance Ordinance of1889, that the respondent had at any time within twelve months ofthe child’s birth maintained it or paid money for its maintenance.The Magistrate in the present case was, I think, right in holdingthat that judgment made the question of respondent’s liability tomaintain the child res judicata.
Mr. Tambayah, who argued the present appeal, has endeavouredto limit the conclusive effect of a previous dismissal to cases turningupon the finding against paternity only, but I am of opinion that hisargument is unsound in principle.
The result of the provisions of the 3rd and 4th sections of theOrdinance, although they are put in the form of directions regulatingprocedure, is to enact that not every father of an illegitimate childis liable to maintain it, but only those fathers against whom anapplication is made within twelve months of the child’s birth, orwho have within that period maintained it. Therefore, where anapplication for maintenance has been dismissed on the ground thatthe application was not made within .the time limited, or on. theground that the father had not so maintained the child, those factsare finally determined between the parties, and cannot be re-openedin any subsequent application. It is different with a fact, such asa failure to maintain, or non-possession of sufficient means. .Ifone of these be the ground of dismissal, it would be competent to a •complainant in a second application to prove a subsequent failure'or
s subsequent acquisition of means, as was pointed out in the case ofQunahami v. Amolis Hamy.1
Mr. Jaye wardens has called my attention to the decision of mybrother Wood Eenton in 431, P. C., Kandy, No. 18,788,* where heheld that the question of a man’s adultery, which the wife allegedas a reason for refusing to go back to him, and which the Magistrateheld not to have been proved, could not be agitated afresh in asecond application, but is conclusively determined by the dismissalof the first application.
I entirely agree with the reasoning upon which my brother’sjudgment is founded, and it is in accordance with what I havemyself just ventured to express. The appeal therefore is dismissed.
OekAir IS.Wekdt J.
BENNO NONA v. DINERIS PERERA