EDIRISINGHE, Petitioner, and DISTRICT JUDGE OF MATARA, Respondent

134-NLR-NLR-V-51-EDIRISINGHE-Petitioner-and-DISTRICT-JUDGE-OF-MATARA-Respondent.pdf


Edirieinghe v. District Judge of Matara
549
1949Present: Basnayake J.EDIRISINGHE, Petitioner, and DISTRICT JUDGE OF MATARA,Respondent
S. C. 49—In the Matter of an Application fop. Writs orCertiorari and Prohibition against L. B. he Silva,the District Judge of Matara
Writs oj Certiomri and Prohibition—Obstruction to Com-ni$sion:r in jMrlitionaction—Inquiry—Bail—Jurisdiction oj District Court—Civil ProcedureCode, *. 839.
Petitioner was alleged to have obstructed a Commissioner who hadbeen directed to sell land in a partition action. The District -Judgefixed tho matter for inquiry and directed tho petitioner to furnish bailin a sum of Ks. 500 to ensure his attondanco in Court.
Held, that tho Court had inherent jurisdiction under section S'V<) oftho Civil Procedure Code to inquire into tho mattor.
Held further, that- tho Court had no power to order bail.
550
BASNAYAKE J.~Ediri$inghe i>. District Judge of Matura
PPLICAT10N for writs of certiorari and prohibition against theDistrict Judge of Matara.
Ivor Misso, for the petitioner.
M. Tiruchelvam, Crown Counsel, for the respondent.
May 19, 1949. Basnayaks J.—
The facts relating to this application by the 37th defendant- in D. C.Matara Partition Case Iso. 14,059 are as follows:—
A commission returnable on 24tb November, 19-18, for the sale of theland which was the subject-matter of the action was issued to one R. D.Percra, a land surveyor, on 13th September, 1948. On 10th November,1948, the proctor for the plaintiff moved for a postponement of the salewhich had been fixed by the Commissioner for 12th November, 1948,on the ground that the plaintiff ivas ill and unable to attend the sale.The respondent refused the application but issued directions to theCommissioner to accept bids on behalf of the plaintiff from any personwho had his written authority to bid. The Commissioner returnedthe commission unexecuted for reasons stated in his report which is setout bc-Io.w.
“ Report
“ Pursuant to the Commission issued to me in the above ease, Iafter due notice to the parties proceeded to the land on the 12th instant,the date fixed for the sale.
The 1st, 2nd, 32nd and 37th defendants were present. Manyother persons who were net co-owners wore aV.o present-. One of thesepersons wanted my permission to bid at the sale on behalf of theplaintiff. I inquired from him whether ho had brought a writtenauthority from the plaintiff to act as his agent. He had no .suchauthority and ho was not eve:; a co-owner. I told him that l couldnot allow him to bid at this sale.
“ This person charged mo with taking sides and said that it wasunfair on my part not to consider the position of the plaintiff who wasill in hospital and also of some minors whom the plaintiff represents.
“ The parties present were very argumentative and excited. Inorder to prevent any possible disorder 1. postponed the sale. The 37thdefendant was very boisterous and in a threatening manner warned raeand said ‘ Don’t come to this land again for a sale. I shall not allowit-.3
“ X left the place as I was not prepared to face any eventualities.
“ I beg Your Honour be pleased to relieve mo of this sale and issuethe Commission to another.
On receipt of this report the respondent, issued Urn following noticeon the 37th defendant:
“ You are hereby required to appear in person before this Courton 22.12.48 at 9.00 a.m. to show cause why you should not be dealtwith by Court for the alleged obstruction and why you should not becondemned to pay all the co ,ts incurred as a result of the obstruction. ”
BASNAYAKE J.—Edirisinghe v. District Judge of Matara
551
He appeared in Court on tho day mentioned in the notice and denied•that he obstructed the Commissioner. The respondent thereuponordered the case to be called on lltb January, 1949, directed the Commis-sioner to be present in Court on that date, and ordered him to furnishbail in a sum of Rs. 500 to ensure his attendance in Court.
On 11th January, 1949, the Commissioner and the 37th defendant werepresent and the respondent in fixing the inquiry for 2nd March, 1949,made tho following order :
“ Inquiry re obstruction to Commissioner, re costs of such obstructionand to consider what steps should be taken against the 37th defendantif he has obstructed the Commissioner for 2.3.1949. ”
Thereupon the 37th defendant moved this Court for a mandate in thenature of a writ of prohibition and also for a mandate in the nature of awrit of certiorari. He submits that the respondent had no jurisdiction—(a) to make the order requiring him to furnish bail, and(0) to inquire into tho alleged obstruction by him to the Commissioner.
He asks that the order to furnish bail be quo^ho-d t»ul th«
be prohibited from holding an inquiry into the alleged obstruction to the
Commissioner.
The respondent, states that on 2nd March, 1949, he meant to ascertain—
whether the 37th defendant hud committed any offence punishablo
under tho Penal Code, or
if he was guilty of conduct amounting to contempt of court punish-
able under section 47 of tile Courts Ordinance.
The respondent’s order of 11th January, 1949, clearly indicates to mymind that the respondent meant only to ascertain the true facta by in-quiry on 2nd March, 1949, in order to decide what a etton, if any, he shouldtake in respect of tho alleged obstruction by the petitioner. In myopinion the respondent was entitled by virtue of his office as judge tohold the inquiry he contemplated when it was reported to him that theexecution of his order had been prevented by the petitioner. Sucha power is implied in the Partition Ordinance under which ho issued theCommission for the sale of the land in question, for it is a rule of statutelaw that when the legislature confers a. jurisdiction it impliedly grantsthe power of doing all such acts as are essential to the exercise of thejurisdiction so conferred *. This principle has its; origin in the CivilLaw wherein it is laid down : “ Cui jurisdictio data est, ea quoque concessaesse videntur, sinequilmsjarisdictioexplicari nonpotnli (Digest II, 1,2.) ”Learned counsel sought to limit the powers of tho District Court tothose expressly conferred by the Courts Ordinance. 1 a»n afraid I cannotassent to that proposition. In proceedings under the Partition Ordinancewhere no express provision is made by that Ordinance it has been theinveterate practice to resort to the Civil Procedure Code. That practicehas received tho sanction of this Court. Section 839 of that Codeenacts that nothing therein shall be deemed to limit or otherwise affectthe inherent power of the court to make such orders as may bo necessaryfor the ends of justice or to prevent abuse of the process of the court.
1 Manin, Ex P., (1S70) 4 Q. B. D. iil?., it)).
552
BASNAYAKE J.—Ediriainghe v. District Judge of Xlc.ta-a
This provision appears to have been introduced in 1921. An expressprovision saving the inherent powers of the courts governed by the CivilProcedure Code was perhaps deemed necessary in view of the rule ofinterpretation that a Code must be construed as containing the entirelaw on the subject for which the Code is designed l. The inherentpowers of the District Court have been recognised in the cases ofAbeyaratna v. Per era1 2, Wijesuriyav. Kalucuppu3 4, Mohamtd Alia v. AfeeraSaibo*. The exorcise of the inherent jurisdiction of a court has its limits.One of the limits to that jurisdiction is stated by Humphreys J. in thecase of Re A Solicitor 5 :
“ This application comes before the court in that most attractiveform, an appeal to the inherent jurisdiction of the court. The judgesof this division have always been friendly to such an application basedupon that ground, but one has to remember, however desirable it mayhe in order to prevent injustice not to confine within too strict limitswhat is known as the inherent jurisdiction of the court, it is quiteanother thing for this court to be invited to over-ride the terms ofstatutes and statutory rules and orders which have the effect ofstatutes, and to say, as we are invited by this application in effect tosay, that, while those statutes and those rules provide no stay ofproceedings upon an appeal to this court, this court will provide thenecessary stay under its inherent jurisdiction. ”
For the above reasons I am of opinion that the respondent has not»>r„ioavourcA to assume a jurisdiction which he was not in law competentto exercise. The petitioner io therefore not entitled to a ma.ntlo.to inthe nature of writ of prohibition.
I can find no authority for the order made by the respondent thatthe petitioner should furnish bail, nor does learned Crown Counselsupport that order. Such an order cannot be made in the circumstancesdisclosed in the proceedings which are before me. In proceedings underChapter LXV of the Civil Procedure Code, however, an order to furnishbail can be made under section 794. I therefore quash that order.
This is not a case in which I should make an order as to costs infavour of either party. I order that each party should bear his owncosta.
Mandate ref need.
Order for bail quashed.
1 Bank of England v. Vagliana Bros, (1891) A, C. 107 at 144.
Deonis v. Samarasinghe el nl. (1911) 15 K. L. 11 89.
3 (1912) 15 N. L. R. 347.
(1979) 6 C. IV. R. 198.
4(197S) S C. IV. R. 299.
4 (19*4) 2 AU E. R. 432 al 134.