015-NLR-NLR-V-25-MENIKA-v.-BANDA.pdf
( 70 )
1923.
Present: Schneider J.
MENIKA «. BANDA.
268—P. C. Kandy, 8,218.
Criminal Procedure Code, a. 306 (4)—Order dismissing application formaintenance in thb belief that defendant had taken the decisoryoath—Order vacated by consent of defendant's proctor—Objectiontaken at tried that the Magistrate had no jurisdiction to vacatethe order.
Where a Magistrate made an order dismissing an application formaintenance it is open to him to vacate that order upon the consentof both parties.
rJ''HE facts are set out in the judgment.
Fonseka, for defendant, appellant.
Garvin, for the applicant, respondent.
( 71 )
May 29,1923. Schneider J.—
This is an appeal by the defendant who was sued for maintenanceof an illegitimate child by the child’s mother. The applicationcame on for hearing on February 17, 1923, when there appears tohave been an agreement that if a certain oath were taken at theMaligawa by the defendant and his witnesses, the application wasto stand dismissed. Otherwise an order for maintenance was to beentered. A return to the report was to be made on the 19th, butthe report appears to have been*made on the 17th, and so far asthe record shows, in the absence of the parties, the Police Magitrate,acting upon this report and thinking that the conditions had beenreasonably fulfilled, dismissed the application* But it was subse-quently brought to his notice that the returnable date of the reportwas on the 19th, and further that the oath had not been rightlytaken- Mr. R. W. Jonklaas, who appeared for the defendantlightly consented to the order of dismissal being vacated. Therecord shows that on March 10 the parties were present, and thetrial was fixed for March 24. On that day the trial was postponedfor April 7, as the defendant was not ready owing to the illness ota witness whom he required. When the trial was taken up onApril 7, Mr. George de Silva appeared for the defendant and urgedthat it was not open to the learned Police Magistrate to vacate hisorder of February 17. The Magistrate who made the order onFebruary 17 and vacated it was Mr. Whitehorn. The trial wastaken up on April 7 before Mr. Stevens. Mr. Stevens over-ruledMr. Silva’s objection, holding that the order of February 17 hadbeen made under a misapprehension, and further that Mr. R. W.Jonklaas had stated to him that the order dismissing the applicationhad been vacated of consent. Mr. Stevens was about to proceedto inquire into the case on its merits, when Mr. George de Silvastated that he was not ready to go on with the trial and moved for apostponement. This was refused foT the good reason that the trialhad been twice postponed, once to suit the convenience of thedefendant. Upon this the record is “ Mr. de Silva and the defend-ant leave the Court premises and decline to take part in the pro-ceedings.” The learned Police Magistrate, in my opinion, veryrightly proceeded with the trial, and made the order from whichthis appeal is taken. In regard to the appeal 1 need only say thatthere are no reasons whatever for my interfering with the order ofthe Magistrate directing that the defendant should pay Rs. 3a month for the maintenance of the child. The evidence is all oneway, and there is no reason why that evidence should not beaccepted and acted upon- Counsel for the appellant cited section306 (4) of the Criminal Procedure Code, and contended that accord-ing to the provisions of that section it is not open to a Police Magis-trate to alter or review his judgment. It seems to me that the
im
Menika v.Banda
( 72 )
1928.
J.
Menika v.Banda
language of section 306 which sepaks of an acquittal and convictionappears to confine that section to strictly criminal cases. It hasbeen pointed out in a very large number of cases that proceedingsunder the Maintenance Ordinance are not purely of a criminalnature, and that the Ordinance only adopts the procedure prescribedfor Police Courts in order to provide a speedy means of obtaining,relief under the provisions of the Ordinance. I would, therefore,take the view that section 306 of the Criminal Procedure Code doesnot apply to the order made by the Magistrate on February 17,1923. In the circumstances the° question therefore arises whetherit was open to the Magistrate to vacate that order upon the consentof both parties.. Proceedings on general principles I see no reasonwhy he should not, because the claim is a purely civil matter.Proceedings in the case dearly show that the defendant’s proctor,Mir. Jonklaas, had consented to the vacating of the order of February17. The record shows more. It shows that on March 10 thedefendant himself accepted that to be the position, and consentedto the case being fixed for trial on April 7. In view of these facts,it seems to me that Mr. George de Silva’s contention was rightlyrejected by the Magistrate.
I wish to state that it seems to me that Mr. de Silva’s and thedefendant’s conduct in leaving the Court at the juncture they leftthe Court was not at all respectful to the Court.
I dismiss the appeal, with costs.
Appeal dismissed.