037-NLR-NLR-V-28-DE-JONG-v.-KANDAPPA.pdf
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Present: Dalton J.
DE JONG v. KANDAPPA.419—M. C. Colombo, 1,380
Vehicles Ordinance—Order for payment of hire—No appeal—OrdinanceNo. 4 of 1916, s. 49.
No appeal lies from an order mane in a proceeding undersection 49 of the Vehicles Ordinance to recover a sum of moneydue for hire of a vehicle.
A
PPEAL from an order made by the Municipal Magistrate ofColombo under section 49 of the Vehicles Ordinance for the
payment of a sum of money as hire for a motor car due by theappellant to the complainant.
Weerasinghe, for appellant.
Garvin, for respondent.
September 14, 1926. Dai.to.* J.—
A complaint was lodged by the respondent to this appeal againstthe appellant that the latter, who is termed the “ accused,” omittedto pay to him or to his driver the sum of Es. 58.10 motor car hire, and
1926.
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1926.
ItavroN J.
]M Jong o.Xattdappo.
that he “ did. thereby commit an offence punishable under section 49-Ordinance No. 4 of 1916 (the Vehicles Ordinance).** In the wordsof the record of the Municipal Magistrate, in whose Court thecomplaint was heard, the verdict was “ Guilty, ” and the sentenceas follows: —
** I order the accused to pay the sum of Rs. 58.10 and costs,which latter I fix at Rs. 40.48/’
From that decision, the appellant, who in his petition of appealcalls himself “ the accused, ** appeals, but- on the appeal coming-on for hearing, objection was taken for the respondent that there isno appeal from this decision.
The section under which these proceedings are taken is in thefollowing terms: —
49.“ If any person shall refuse or omit to pay to the proprietor
or other person authorized to recover the same (the sumjustly due for the hire of a vehicle) or shall deface or in anymanner injure any such vehicle, it shall be lawful for thePolice Court or Municipal Could having jurisdiction in theplace in which any of the acts aforesaid were committed,upon complaint of the proprietor and summary proof ofthe facts, to award reasonable satisfaction to the party socomplaining .for his fare or for his damages and costs, nr.dalso reasonable compensation for loss of time in attendingto-make and establish such complaint; and upon the neglector refusal of such defaulter or offender to pay the same,it shall be recovered as if it were a fine imposed bv suchCourt/’
On a careful perusal of this section it is difficult to! find any justi-fication for the use of the words I have cited from the complaint,with respect to the alleged commission of what is called an offencewhich is said to be punishable under section 49. The word“ offender ” is certainly used, having reference to the defacing or in-juring of a vehicle, as the word “ defaulter ” has reference to onerefusing or omitting to pay his fare, but the section merely provides,for reasonable satisfaction and compensation to be given, which maybe recovered ns if it were a fine. The word “ offender ” might withequal justification be used in various proceedings which are un-questionably purely civil. The word “ penalty,” it is true, doe*appear in the marginal note to the section, but that is not to betaken as part of the Ordinance. Even if it were otherwise, it may be-noted that the same word is also used in the marginal note to section25, which appears in that part of the Ordinance (Chapter IV.) whichdeals with civil liabilities only. The use of the word “ offences *’ atthe head of Chapter VII., within which section 49 falls, does notalter my view of the matter. .
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By section 57 of the Municipal Councils Ordinance, 1910, it isprovided that no appeal shall lie from any judgment or order of a Dat-ton .? .Municipal Magistrate except as provided by the Criminal Procedure ^^
Code, 1898; or by any other law for the time being in force in respect Kandappnof appeals from any judgment or order of a Police Court. Insupport of this argument that appellant has a right of appeal here,
Counsel relies upon the provisions of the Criminal Procedure Code.
He admits that there is no other law in force upon which he canrely for this right. The Vehicles Ordinance itself is silent on thepoint. Under the Criminal Procedure Code the right of appeal isgoverned by section 388 and its attendant -sections. That rightonly obtains in “ a criminal case or matter." The first question tohe decided is whether these particular proceedings in the MunicipalCourt come within that class of case. If they do not, it is notnecessary to consider whether obtaining the leave of the Magistrateis a condition precedent to the appeal being heard.
As I have pointed out-, the Vehicles Ordinance, in addition tocreating certain offences which undoubtedly are dealt with incriminal proceedings, goes on to legislate for certain civil liabilities.
Further, reference to section 812 (2) of the Criminal Procedure Codeand section 354 of the Civil Procedure Code shows that fines imposedby criminal and civil Courts may be recovered by the same processthrough the Fiscal. Counsel, however, relies upon the decision inSilva v. Appuhamy,1 which was an appeal against an order of aPolice Magistrate refusing to set aside or recall a warrant to recovera payment of a sum due for hire under section 49 of the VehiclesOrdinance. The Court 'held that such a warrant- can only issue upohthe refusal or neglect of the defaulter to pay the sum after it hasbeen awarded by the court and allowed the appeal. The questionwhether or not any appeal lay in such a proceeding does not appearto have been considered, but even if there was no appeal, I thinkthat on the facts there there is little doubt the learned Judge wouldhave dealt with the matter under the revisory powers of the Court.
But the judgment is certainly against the argument of Coutiselthat the proceedings was in any way a criminal case or matter.Schneider J. points out that '* the obligation to pay hire for avehicle taken on hire is purely civil and contractual. Nowhere is itdeclared to be an offence to make default in payment of such hire.
Section 49 only seeks to provide a speedy means of enforcing a purelycivil right. An analogous provision is to be found in the Mainte-nance Ordinance, 1889." This is a convenient point for noting thatwith regard to the analogous provision of the Maintenance Ordinanceunder which frequent appeals come before this Court*, section 17 ofthat Ordinance especially gives a right of appeal to any dissatisfied
1 (1026) 27 N. L. R. 215.
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1926. party. I can find no such provision applicable to section 49 of theDalton J. Vehicles Ordinance. A comparison with English decisions also—— gives assistance on this point. The following two sections appearKmiSappa- *n Town Police Clauses Act, 1847.l: —
"If any person refuse to pay on demand to any proprietor or
driver of any hackney carriage, the fare allowed by this, orthe special act, or any by-law made thereunder, such faremay, together with costs, be recovered before one Justiceas a penalty."
" Any person using any hackney carnage plying under a
licence granted by virtue of this or the Special Act whowilfully injures the same shall for every such offence beliable to a penalty not exceeding £5, and shall also pay tothe proprietor of such Hackney carriage reasonable satis-faction for the damage sustained by the same; and suchsatisfaction shall be ascertained by the Justices beforewhom the conviction takes place and shall be recovered bythe same means as the penalty."
The difference in the wording of the two sections is very obvious,and they appear to have been amalgamated with modifications insection 49 of the Vehicles Ordinance. A wilful injury could doubt-less be dealt with under the Penal Code.
In Queen v. Kerswill 2 a question arose a9 to whether cab fare wasrecoverable under section 66 set out above on complaint or oninformation, in other words by civil or criminal process. The*Justices ordered the appellant, who has been brought before themcharged with non-payment of a cab fare and who had obtained arule for a writ of certiorari to pay the amount and a certain sum forcosts. The order complained of was in form quasi-criminal, andsubjected the applicant to imprisonment in default of distress incase of non-payment. Mathew J. says: —
" The section seems to me clearly to deal with a civil debt andto provide means to obtain payment of that debt whenthe piyment of the debt has been refused on demand. . . . It is said that the last word of the section“penalty," stamps the non-payment as one of a criminalnature. The words are "as a penalty," that is, in themanner of a penalty, and the use of the word penaltydoes not alter the character of the debt, which is a purelycivil one."
In the use of the word penalty, section 66 goes beyond the localsection 49. A similar question arose in Queen v. Master3 m
110 A 11 Viet. c. $9.
z L. R. 4 Q. B. 2So.
* (1895) 1 Q. B. 1.
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proceedings to recover a certified balance due from an overseer, 1926.on information being laid against him for non-payment. Cockbumj
C..T. says:—
De Jong r-
“ The statute directs that the creditor shall proceed to Kandappaenforce the payment of the money if it be not paidwithin seven days after he has certified it to be due, andit is made Recoverable in the same summary manner aspenalties are recovered under the earlier Act; but theseprovisions do not convert the non-payment of what ismerely a debt into an offence.'*
Mellor -J. says:—
I am entirely of the same opinion. The fallacy of Mr. Jeff'sargument is in not distinguishing between the debt andthe means of enforcing it, by the same summary proceed-ings as a penalty inflicted for an offence . . . .Summary proceedings for enforcing what is merely a debtmust be in the nature of civil and not criminal process."
Having regard to the provisions of section 40 I have no difficultyin arriving at the conclusion that proceedings taken to-recover hireof a vehicle under that section do not fall within the words “ acriminal case or matter ” as used in section 328 of the CriminalProcedure Code. If the respondent had sought his remedy in thecivil, as opposed to Municipal or Police Courts, he would presumablyhave commenced proceedings in the Court of Requests. Appealsfrom any final judgment or order of that court are governed byOrdinance No. 12 of 1895, but that of course does not assist theappellant here.
Therefore for the reasons I have given, in the absence of any othersection or Ordinance giving the appellant a right of appeal, theobjection taken must be upheld, aud the appeal must be dismissedwith costs.
Appeal dismissed.