105-NLR-NLR-V-70-L.-ABRAHAM-PERERA-Petitioner-and-W.-J.-B.-PERERA-Respondent.pdf
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T. S. FERNANDO, A.C.J.—Perera v. Perera
1967Present : T. S. Fernando, A.C.J.
L. ABRAHAM PERERA, Petitioner, and W. J. B. PERERA, Respondent
S.G. 377 of 1967—Application to revise an order made inCase No. 11036 of the Rural Court of Pinwatte
Rural Court—Order of acquittal entered by it—Appeal therefrom to District Judge—Reversal of acquittal then—Remedy of complainant—Rural Courts Ordinance(Cap. 8), ss. 26 (1), 41 (1), 41 (5)—Courts Ordinance (Cap. 6), s. 3.
Where a District Judge, purporting to act in the appellate jurisdiction con-ferred on him by section 42 of the Rural Courts Ordinance, sots aside an orderof acquittal in contravention of the proviso to section 41 (1) and returns therecord of the case to the Rural Court with a direction to the President to imposea lawful sentence, the sentence imposed thereafter by the President may bequashod in revision by the Supreme Court notwithstanding the provisions ofsection 41 (5) which debars an appeal to the Supremo Court from an order ofthe District Judge on appeal.
.AlPPLICATION to revise an order of the Rural Court, Pinwatte.
N. D. Jayasuriya, for the accused-petitioner.
Desmond Fernando, for the complainant-respondent.
Cur. adv. vult.
December 7,1967. T. S. Fernando, A.C.J.—
The petitioner was charged in the Rural Court of Pinwatte with^thecommission of an offence punishable under section 26 (1) of the RuralCourts Ordinance, No. 12 of 1945 (Cap. 8). The offesice was alleged #
(1959) 62 N. L. R. 68.1 (1965) 69 N. L. R. 212.
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T. S. FERNANDO, A.CJ —Perera v. Perera
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to have been committed by the petitioner inasmuch as he did carry ona dangerous or offensive trade, to wit, the smoking and manufacturing ofrubber sheets without a permit from the Chairman of the VillageCommittee.
The learned President of the Rural Court, after trial, made order onthe 19th May 1967 acquitting the petitioner. The complainant (whois the respondent in the proceedings in revision before me) appealedto the District Judge in terms of section 41 of the Rural Courts Ordinance,and that judge bv his order of the 11th July 1967 set aside the verdictof acquittal entered in the Rural Court and purported to convict thepetitioner on the ground that the President had misdirected himselfon a material question of law. He returned the record of the case tothe Rural Court with a direction to the President to impose a lawfulsentence. Accordingly, on receipt of the record, the learned President,on the 4th August 1967, in the presence of the petitioner, imposed onthe latter a fine of Rs. 25, in default of payment of which the petitioneris to undergo rigorous imprisonment for two weeks.
On behalf of the petitioner it is claimed, and this claim is not disputedby counsel for tho respondent, that upon an appeal from an order of aRural Court it is not competent for the District Judge on appeal tointerfere with an order of acquittal. The proviso to section 41 (1) ofthe Ordinance is too clear to permit a contrary contention to be advanced.
Section 41 (5) bars any appeal to this Court from the decision of aDistrict Judge on any appeal preferred to the latter under section 41,except in accordance with the procedure indicated in sub-section (5).The petitioner therefore seeks the intervention of this Court by anexercise of the powers of revision vested therein. Counsel for therespondent has contended that this Court is not empowered to revise anorder of a District Judge acting in the appellate jurisdiction conferredon him by section 42 of the Rural Courts Ordinance, and that thepetitioner’s remedy, if anj’, may be by way of an application for inter-ference by this Court by way of a mandate in the nature of certiorari.The point relating to this Court’s jurisdiction in the instant case is notfree from all difficrilty, but it is clear enough that the immediate orderby which the petitioner is aggrieved is not the order of the DistrictJudge on appeal, but the sentence imposed on him by the Rural Courton the 4th August 1967. Even though that sentence resulted directlyfrom the order of the District Judge on appeal, it is claimed that what issought to be revised is the order of the Rural Court sentencing thepetitioner. A Rural Court is itself a court contemplated by tho CourtsOrdinance (Cap. G)—vide section 3—, and I think this claim of thepetitioner should be upheld.
For the reason so briefly indicated I would quash the sentence imposedon»the petitirwier by the Rural Court.
Sentence quashed.