031-SLLR-SLLR-1995-2-GUNARATNE-MENIKE-V.-JAYATILLEKE-BANDDA.pdf
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Sri Lanka Law Reports
11995] 2 Sri LR.
GUNARATNE MENIKE
v.JAYATILEKE BANDA
SUPREME COURTG.P.S.DE SILVA, C.J.,
KULATUNGA, J.,
RAMANATHAN, J.
S.C. APPEAL 67/94C.A. 29/91/(M)
M.C. KEGALLE 10824DECEMBER 13, 1994.
Maintenance – Application by Mother on behalf of an illegitimate child – Order formaintenance made – Confirmed by Court of Appeal – Voluntary withdrawal ofapplication – Respondent discharged – Cancellation of withdrawal – Validity ofMagistrates' Order allowing same – Order made per incuriam.
An application for maintenance by the mother on behalf of an illegitimate childwas made on 27.1.1976. After inquiry the Magistrate made Order awardingRs. 50/- per month as maintenance for the child from the date of the application.The defendant respondent preferred an appeal to the Court of Appeal, which wasdismissed on 3.3.1981. The appeal preferred to the Supreme Court waswithdrawn on 13.11.1981
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The Appellant on 18.9.81 filed an affidavit voluntarily withdrawing themaintenance case. The Magistrate on 8.6.1982 made order allowing thewithdrawal and discharging “the accused."
Later on 15.1.1991, the applicant filed another affidavit and averred that shewithdrew the maintenance case on a promise of marriage made by the defendantand the defendant had gone back on the promise and married some one else on27.12.1990. The magistrate made order on 10.6.91, directing the defendant topay maintenance in terms of the original order dated 13.01.1977.
On appeal, the Court of Appeal took the view that the Magistrate was in error inrestoring the case to the trial roll and enforcing the order for maintenance madeon 12.1.1977 as the application for maintenance, had already been “voluntarilywithdrawn.”
Held:
As the application for maintenance was inquired into and order formaintenance had been made in favour of the child, there was no applicationbefore the Magistrate’s Court to withdraw.
Furthermore, the Order made on the merits was affirmed by the Court ofAppeal (on 3.3.1981) which was binding on the Magistrate.
The order made subsequently on 8.6.1982 discharging “the accused” – is anorder made per incuriam.
Right of maintenance is personal to the child; it is not open to the mother tocompromise the child’s claim.
Per G. P. S. de Silva, C.J.
“The principle laid down in a decision must be read and understood in thelight of the nature of the action, and the facts and circumstances the courtwas dealing with."
The effect of the Order of 8.6.1982 was no more than to suspend theenforcement of the Order for maintenance made on 12.1.1977; the order dated10.6.1991 to enforce the original Order for maintenance is a valid order.
Cases referred to:
Shanmugam v. Annamuttu – 69 NLR 63 at 64.
Jane Hamy v. Darlis Zoysa -12 NLR 70.
Seethi v. Mudalihami- 40 NLR 39.
Paulusz v. Perera- 34 NLR 438.
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[1995] 2 Sri LR.
Appeal from the Judgment of the Court of Appeal.
Daya Guruge with D. P. Abeysiriwardane for Applicant-Appellant.
Faiz Musthapha P.C. with S. Jayawardene for Defendant-Respondent.
Cur. adv. vult.
January 10.1995.
P. S. DE SILVA, C.J.
An application for maintenance was made on 27th January 1976to the Magistrate’s Court by the mother of an illegitimate child. Thematter proceeded to inquiry and the Magistrate made order directingthe defendant to pay a sum of Rs. 50/- per month as maintenance forthe child, from the date of the application. The order of the Magistratewas on 12th January 1977. The defendant preferred an appeal to theCourt of Appeal. The appeal was considered and dismissed on 3rdMarch 1981. The defendant then preferred an appeal to this court.The appeal, however, was withdrawn and was accordingly dismissedby this Court on 13th November 1981.
The applicant filed in the Magistrate’s Court an affidavit dated 18thSeptember 1981 wherein she averred that she was “voluntarily”withdrawing the “maintenance case." The Magistrate thereuponmade the following order (as translated) dated 8th June 1982: “File ofrecord the affidavit. The case is withdrawn. The accused isdischarged."
*
The matter did not rest there. On 15th January 1991 the applicantfiled another affidavit in the Magistrate's Court. In this affidavit sheaverred that she withdrew the maintenance case on a promise ofmarriage made by the defendant; the defendant had gone back onhis promise and had married someone else on 27th December 1990.The Magistrate having considered this affidavit made order on 10thJune 1991 directing the defendant to pay maintenance in terms ofthe original order dated 12th January 1977, referred to above.
The defendant preferred an appeal to the Court of Appeal againstthe aforesaid order dated 10th June 1991. The Court of Appeal took
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the view that the Magistrate was in error in restoring the case to thetrial roll and enforcing the order for maintenance made on 12thJanuary 1977, since the application for maintenance had alreadybeen voluntarily withdrawn by the applicant. Accordingly, the Court ofAppeal set aside the order dated 10th June 1991. The applicant hasnow preferred an appeal to this court against the judgment of theCourt of Appeal.
Mr. Daya Guruge for the applicant-appellant submitted that theorder of the Magistrate dated 8th June 1982 permitting the applicantto withdraw the application for maintenance and "discharging" therespondent was one made per incuriam. It seems to me that thissubmission is well founded. In the first place, there was noapplication pending before the Magistrate’s Court which theMagistrate could have permitted the applicant to withdraw. Theapplication had been inquired into and an order for maintenance hadbeen made in favour of the child. It was an order made on the merits.What is more, the order for maintenance made by the Magistratewas affirmed by the Court of Appeal. Therefore it was an orderwhich was clearly binding on the Magistrate. Thus the subsequentorder of the Magistrate “discharging” the defendant from theproceedings was an order made by a manifest mistake or oversight.The order being one made per incuriam, it was open to theMagistrate to set aside his order. This he did by his order of 10thJune 1991.
Secondly, the right of maintenance is personal to the child inwhose favour the order was made; it was not open to the mother tocompromise the child’s claim. As succinctly stated by SavitriGoonesekera in her book. The Sri Lanka Law on Parent and Child,
“An award of maintenance under the statute is not a personal benefitto the mother … for the legal right to claim maintenance is vested inthe child (page 422). One of the cases cited by the learned author insupport of this principle is Shanmugam v Annamuttu{' whereManicavasagar J., stated with reference to an order made undersection 2 of the Maintenance Ordinance that, “ the allowance orderedis personal to the child and the latter should not suffer eventemporarily for the folly of the mother”
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Jane Hamy v. Darlis Zoysa(a> was also a case where the defendantwas ordered to pay maintenance for his illegitimate child. HutchinsonC.J., in his judgment pithily expressed himself thus: “The provisionsof the Ordinance No. 19 of 1889 for the maintenance of illegitimatechildren by their fathers are obviously not intended purely for thebenefit of the mother. They can be enforced by the court, even ifthe mother takes no steps for that purpose or she is dead; and if anapplication has been made for that purpose by the mother and hasbeen compromised by an arrangement between her and the father,that cannot deprive the Court of the power to afterwards ordering theman to make provision for maintaining the children if he neglects todo so.”
On a consideration of the matters set out above, I hold that theorder of the Magistrate dated 8th June 1982 purporting to terminateproceedings was one made per incuriam. Having regard to thecrucial fact that the order for maintenance dated 12th January 1977had been affirmed by the Court of Appeal on 3rd March 1981, itseems to me that in truth the effect of the order of 8th June 1982 wasno more than to suspend the enforcement of the order formaintenance made on 12th January 1977. On 10th June 1991, theMagistrate rightly made order enforcing the original order formaintenance dated 12th January 1977.
Mr. Musthapha for the defendant-respondent placed strongreliance on the case of Seethi v. Mudalihami(3). That case is clearlydistinguishable from the case before us. That was a case where onthe date of trial the applicant had informed the court that “she hadno witnesses present, who could supply the necessary evidencecorroborative of her claim that the appellant had fathered thechildren.” (page 39). Thereupon the Magistrate had dismissed herapplication for maintenance. The significant fact is, as observed byAbrahams C.J., the case was dismissed “on the merits as sheadmitted that she had no witnesses to support her claim …" (at page40). It was in these circumstances that the Learned Judge took theview that the Magistrate had no power to re-open a case that wasdismissed.
Mr. Musthapha next relied on the following passage inthe judgment of de Silva, A.J., in Paulusz v. Perera w at 440:
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“The principle of law that a court may not set aside its own order iswell established and rigorously enforced. It is a very importantprinciple as on it depends the finality of judicial decisions. If a Judgecan review his own decision, there is no limit to the number of timesupon which he might to do so or upon which he may be invited bythe parties so to do …”. The court was here concerned with thequestion whether the District Judge had the power to set aside hisown order dismissing a partition action. It is to be noted that apartition decree “creates rights in rem” (at page 441). The LearnedJudge proceeded to make this important observation: "Theproposition that a District Court does not have the right to set asidean order of dismissal made by it is not only good law but necessaryfor the proper working of partition actions. The plaint in a partitionaction has to be registered. The right of a person entering into atransaction affecting the land who has examined the record andfound an order of dismissal as the last order might be gravelyprejudiced, if not defeated, by a subsequent order of a District Courtsetting aside its own order of dismissal.” thus it is seen that theprinciple enunciated was in the context of a partition action and is oflittle assistance in the appeal before us. The principle laid down in adecision must be read and understood in the light of the nature of theaction, and the facts and circumstances the court was dealing with.
For these reasons, the appeal is allowed, the judgment of theCourt of Appeal is set aside and the order of the Magistrate dated10th June 1991 is restored.
The defendant-respondent must pay the applicant-appellant asum of Rs. 1000/- as costs of appeal.
KULATUNGA, J. -1 agree.
RAMANATHAN, J. – I agree.
Appeal allowed.