020-NLR-NLR-V-73-K.-M.-SENEVIRATNE-Appellant-an-dK.-PODI-MENIKE-Respondent.pdf
Scnctira/ne c. Podi Menike
91
1969Present: Wijayatilake, J.■K. M. SENEVIRATNE, Appellant, and K. PODI MENIKE, RespondentS.C. 8S-5/6S—3I.C. Kandy, 49411Maintenance Ordinance—Application for maintenance of illegitimate child—Dismissalwithout inquiry into merits—Power of Court to re-open proceedings in a fit ease—Xat ural justice.
Whero an application for maintenance of an illegitimate child is dismissedex parte without an inquiry into the merits, tho Magistrate has power in a fitcaso, on tho ground of natural justice, to re-open tho proceedings withinreasonable timo if good causo is shown for vacating tho order of dismissal.
As the Magistrate who was hearing the application of tho applicant-respondentfor maintenance in respect of her illegitimate child was going on transfer, thecase was fixed, of consent-, for inquiry de novo before his successor. The applicant
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WI.JAYATIL.-VKE, J.—Scncvirotnc t J'odi Mcnikc
was absent on tho dato of inquiry and her application was therefore dismissedShe subsequently moved to have tho order of dismissal vacated on-tho ground
. that she had been ill and unablo to attend Court for tho inquiry'. Tho Magisirnfothereupon vacated his earlier order and re-opened tho proceedings. It wasshown that because one year had elapsed after the birth of the child, the applicantwas not entitled to make a fresh application.
Held, that, although thero is no express provision in the MaintenanceOrdinance enabling re-opening of proceedings, tho order of tho Magistratevacating his earlier order of dismissal was valid, in the circumstances, on theground of natural justice.
Appeal from an order'of tho Magistrate's Court, Kandy.
Mark Fernando, for tho defendant-appellant.
S. Kanagaralnam, for tho applicant-respondent.
Cur. adv. vull.
I * –
July 3, 1969. Wijayatilake, J.—
Tho quostion raised in this Appoal is in regard to tho jurisdiction of aMagistrate to re-open proceedings in a caso filed under the MaintenanceOrdinance..'
The applicant filed an application for maintenance in respect of thechild Chandralatha Menika born to her on 6.8.G6. She alleges that thodefendant is the father of this child. The defendant denied paternityand tho case proceeded to inquiry on 15.9.66, 3.5.67 and 4.6.67 boforeMr. Douglas Wijayaratno. It would appear that tho applicant hasbeen subjected to a lengthy cross-examination—tho type-script being24 pagos.
Thereafter as this Magistrate was going on transfer of consent the casohad been fixed for inquiry de novo before his successor. When this mattercame up for inquiry before Sir. D. E. Dharmasekera on 26.8.67 theapplicant was absent and tho defendant was present. The apph'cantwas not represented by Counsel, and tho learned Magistrate had dismissedthe application on 7.9.67. The applicant filed affidavit and two medicalcertificates and moved to have tho order dismissing her applicationvacated. The Magistrate noticed the defendant and after, inquirydelivered his order on 12.3.68 vacating his earlier order and allowodtho applicant to re-open proceedings. The present Appoal is from thisorder.- ,V_.
Mr. Mark. Fernando, learned counsel for tho appellant, submits thatonce the Magistrate dismissed the application ho became fundus officioand thereafter he had no jurisdiction to re-open proceedings. Ho submits-,that unlike in a civil suit governed by the Civil Procedure Code wherethere is provision under section 84 and in a criminal action governed bythe Criminal Procedure Code where there is provision under section 194—in an action for maintenance there is no provision for re-opening proceed-ings. Ho has relied on a series of judgments of this Court which I propose
WIJAYATILAKE, j.—Seneviralne v. Podi Af entice
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to discuss. In the case of Anna Perera v. Emaliano Sonia and Jvstin v.A i a.un* the question arose with regard to tho applicability of section 19-4of the Criminal Procedure Codo to Maintenance proceedings. It washeld that only those sections of the Criminal Procedure Codo which aroexpressly incorporated in tho Maintonanco Ordinance aro applicablo andthat section 194 is not one of thorn. It was also held that whoro anapplication for maintenance has been struck out without an inquiry intotho merits tho applicant has no right of appeal under section 17 of theMaintenance Ordinance but she may make a fresh application, providedtho timo limit prescribed in the Ordinance has not expired. Tho judgmentof Wendt J. in Saboor Umnia v. Coos Kanny – was disapproved. Seealso tho judgment of Shaw J.in Bccbee v. Mahmood 3 and tho judgment ofEnnis J. in Jeerishamy v. DavithSinno4 which adopted tho principle setout in tho cases reported in 12 N. L. R. 263. Mr. Fernando has alsoreferred me to the judgmont of Abrahams C.J. in Seelhie v. 3Ivdalihamisbut it would appear that it was decided on the basis that tho case wasdecided on the merits as tho applicant had admitted that sho had nowitnesses to support tho claim. A subsequent application made by. thosamo applicant came up for consideration in tho case of Secthi v. Mvdali-hamy 6 where Moseloy J. adopted the finding of Abrahams C.J. Counselfor the appellant has also relied on tho caso of Piyaratna Unnanse v.Wahereke Sonutlara Unnanse7 on tho scope of section 189 of the CivilProcedure Code. I do not think this has any application to the situationwhich has arison in this caso.
As Wood Ronton J. observed in tho case reported in 12 N.L.R. 263the policy of the Maintonanco Ordinance is that applications for mainte-nance should not bo disposed of otherwise than upon an adjudication ontho merits. In tho instant caso the applicant has pursued hor applica-tion zealously and she had appeared in Court on as many as 12 occasions.Unfortunately on tho day in question sho had been prevented by tho aftoreffects of an attack of typhoid fever from attending Court and sho hascalled medical cvidonco to show that she was warded in Hospital and shohad boon discharged only 3 days before tho Inquiry date. Some of thowitnossos sho had summoned for this dato wore prosont in Court.
Couusel for appellant submits that, if at all, aftor hor application wasdismissed sho had only a right to filo a fresh application provided it wasnot timo barred. The prescriptive period being one year from tho birthof tho child and tho Court having taken such a long period to disposo ofthis application sho would havo been shut out from pursuing' a freshapplication.
There is no provision in tho Maintenance Ordinanco to meet a caso suchas this. In my view in tho abscnco of any statutory provision it isincumbont oh this Court to make an order which will promoto tho endsof justice and not defeat them. I do not think tho judgments roliod
1 (1908) 12 X. L. if. 263.4 (1921) 23 X. L. R. 460.
*(1909) 12 X. L. R. 97.* (1937) 10 X. L. R. 39.
1 (1921) 23 X. L. if. 123.* (1938) 3 C. L. J. 83.
» (1950) 51 X. L. S. 313 at 316.
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Pcrera v. Inspector of Police, Bolangoda
on by Mr. Fernando stand in tho way of such a courso being adopted. Inboth tho Criminal Procedure Code and Civil Proceduro Code there isprovision for a situation such as this. Surely, in an application formaintenance where the Court procedure has contributed to the long dclayin its disposal some relief should bo given to the applicant-. As Mr.Kanagaratnam, learned Counsel for the applicant, submitted if thisapplicant is shut out from showing cause of her absence from Court,this Court will bo acting contrary to all principles of Natural Justice.
I am inclined to agree. I can coneeivo of severa I situat ions such as t his.For instance, if this woman was prevented from boing present at thoInquiry owing to an accident on her way to tho Courts would the Magis-trate be powerless to give hor a hearing as to hor absence and if the factsso warrant re-open proceedings, when there is no statutory provisionpreventing him doing so? Let mo give another illustration. For instance,if this woman owing to a bus break down or the derailment of a traingot late to attend Court and by that time the Magistrate had dismissedhor Application would the Magistrate bo precluded from re-openingproceedings? Numerous illustrations can be givon to show that itwould bo quite contrary to all principles of Natural Justice to deprive aMagistrate of this right. I do not think it correct for us to conjure uphurdles when the Legislature has not thought it fit to introduce them.
■ In my opinion it is tho imperative duty of a Magistrate to give a hearingto a party who wishes to show cause and re-open proceedings in a fit case ifsuch application to re-open proceedings is mado within reasonable time—in all the circumstances.
I see no reason whatever to interfere with the Order of tho learnedMagistrate. I would accordingly dismiss tho Appeal with costs.
Appeal dismissed.