P. H. BABY NONA, Appellant, and R. KAHINGALA, Respondent

086-NLR-NLR-V-66-P.-H.-BABY-NONA-Appellant-and-R.-KAHINGALA-Respondent.pdf


Baby Nona v. Kahingala
361
1064Present: Basnayake, C.J., Abeyesundere, J.»
and Sirimane, J.
P. H. BABY NONA, Appellant, and R. KAHINGALA,Respondent8. C. 225161—M. C. Gdle, 7917
Maintenance—Illegitimate child—Application by mother for maintenance—Procedure—Commencement of inquiry—Requirement of examination of applicant onoath—Condition precedent—Effect of non-compliance—Maintenance Ordinance(Cap. 91), sa. 2, 8, 9, 13-17—Courts Ordinance, e. 81—Criminal ProcedureCode, e. 425.
In an application made under section 13 of tbe Maintenance Ordinance bythe mother of an illegitimate child for maintenance of the ohild—
Held, (SmiMANE, J., dissenting), (i) that compliance with the requirement ofsection 14 of the Maintenance Ordinance that the Magistrate shall commencethe inquiry by examining the applicant on oath or affirmation and recordingsuch examination is a condition precedent to an inquiry under the Ordinance.The condition cannot be waived by consent of parties.
that non-compliance with section 14 renders the subsequent proceedingsnull and void.
that the applicant was not barred from questioning in appeal thevalidity of the proceedings before the Magistrate even though no objectionwas taken at the inquiry.
Appeal from s, judgment of the Magistrate’s Court, Galle. This appealwas referred by Sansoni, J., to a Bench of more than one Judge in thefollowing terms :—
" This is an appeal by an applicant from an order made by the learnedMagistrate on 29th October, I960, dismissing her application formaintenance for her illegitimate child, whose father she alleged wasthe Defendant.
" The application was made to Court on 31st January, 1959, and onthat day the Magistrate ordered summons on the Defendant, but no-evidence on oath or affirmation was given by the applicant before thatorder was made as required by Section 14 of the Maintenance Ordinance.The objection now taken in appeal on behalf of the applicant is that theproceedings are invalid by reason of the Magistrate’s failure to complywith the provisions of that section. For the Defendant, on the other hand,it has been urged that the applicant is not entitled at this stage tobenefit from any such omission to comply with this statutoryrequirement.
"'As the question is of some importance and turns on the wider issue ofjurisdiction, I think I ought to indicate my views briefly. There can beno doubt that applications under the Maintenance Ordinance must be
lxvi—16
gR 1732—1,866 (10/64)
362
Baby Nona v. Kahingala
made to the Magistrate, and there can also be no doubt that a Magistrate’sCourt is the only Court that has jurisdiction to entertain such applica-tions. Therefore, I think it is correct to say that a Magistrate’s Courthas inherent jurisdiction over the subject matter of an application formaintenance; but Section 14 lays down the procedure to be followed whenthe Magistrate is asked to exercise that jurisdiction. A case such as thisis quite different from a case where there is a total want of jurisdiction inthe Court to entertain the particular kind of action, but nevertheless itacts as though it had jurisdiction by reason of the fact that parties to theparticular proceedings never raised the question of jurisdiction. In theformer type of case, the Magistrate exercises jurisdiction and his orderswill be valid and will bind the parties if they do not take prompt objectionto any defects of procedure. In the latter type of case, all ordersmadeareincurably void.
te The distinction between the two classesof cases isso well-establishedthat it is hardly necessary to cite authority, but I think I might refer to anold decision of the Privy Council which seems to have a direct bearing onthe present case. I refer to Ledgard v. Bull (1886) 9 Allahabad 191 (P. C.).In the course of his judgment in that case, Lord Watson said this:
{When the Judge has no inherent jurisdiction over the subject matter ofa suit, the parties cannot, by their mutual consent, convert it into a properjudicial process, although they may constitute the Judge their arbiter,and be bound by his decision on the merits when these are submitted tohim. But there are numerous authorities which establish that when, in acause which the Judge is competent to try, the parties without objectionjoin issue and go to trial upon the merits, the defendant cannot subse-quently dispute his jurisdiction upon the grounds that there wereirregularities in the initial procedure which, if objected to at the time,would have led to th e dismissal of the suit. ’ Applying that dictum to thepresent case, it seems to me that this was an application which the Magis-trate was competent to try, and as no objection was raised at any time inthe lower Court that there was an irregularity in the order directingsummons to issue, the applicant cannot now dispute the Magistrate’sjurisdiction on that ground.
“There is another case where the same rule was laid down—Moore v.Gamgee (1890) 25 Q. B. D., p. 244 where Cave J. referred to the twosenses in which it may be said that there is no jurisdiction to entertain anaction. The first is where under no circumstances can the Court entertainthe particular kind of action, and the second is where, for instance, leavehas to be obtained to bring an action in the Court. In the second type ofcase the Court has jurisdiction over the subject matter, but it is a contin-gent jurisdiction requiring a certain procedure to be followed before thejurisdiction is exercised. This type of case may be said to fall under thehead of procedure rather than under the head of jurisdiction, and theobjection to jurisdiction in the latter type of case may be waived bytaking part in the proceedings. A Defendant by so taking part deprive^himself of the power of objecting to jurisdiction.
Baby Nona v. KaMngala
368
** It is that type of case that Rose J. dealt with in Thomas v. Bawa(1945) 46 N. L. R. p. 215, where again the principle was followed thatwhere there is jurisdict’on over the subject matter, but non-compliancewith the procedure prescribed as essential to the exercise of thejurisdiction,the defect can be waived. Such a jurisdiction, as I have said,is usually described as contingent.
“ If I had to decide this appeal without reference to previous autho-rities, I would have held that the applicant was precluded from nowobjecting to the validity of the proceedings. She has waived the defectthat existed when the Magistrate ordered that summons should issue,and she is barred by her acquiescence and by her taking part in thesubsequent inquiry, from now raising such an objection.
“ But there is the judgment of two Judges in Rupasinghe v. Soma-wathie (1959) 61 N. L. R. p. 457 which decided that a Magistrate’s failureto comply with the procedure laid down in Section 14 renders his subse-quent order, made after an enquiry in which both parties took part, nulland void. The earlier decision in Namasivayam v. Saraswathy (1949)50 N. L. R. p. 333 which was based on jurisdiction was approved.
“ I do not think the two different classes of cases which I have referredto, and the bearing which waiver has in the particular class of case intowhich the present application falls, have been sufficiently considered inRupasinghe v. Somawathie. It has been pointed out to me that there areprobably several cases in which orders for the payment of maintenancehave been made where, if that decision has to be followed, all proceedingsmay even now be attacked as invalid. For if non-compliance withSection 14 goes to the root of the Magistrate’s jurisdiction and rendersall subsequent proceedings invalid, such an objection may be takenwhenever an order for maintenance is sought to be enforced.
“ The question of the invalidity of the proceedings that has been raisedby the Applicant-appellant before me is one of difficulty, and I havedoubts as to the correctness of the decision in Rupasinghe v. Somawathie,and Weerasooriya J. in Podinonav. Ranasinghe (1960) 63 N. L. R. p. 210also disagreed with it. It appears to me to require further considerationby a fuller Bench.
“Acting under Section 48 of the Courts Ordinance, I reserve thatques-tion, and also the question whether the applicant is barred or not fromquestioning the validity of the proceedings before the Magistrate, forthe decision of more than one Judge of this Court by a Benchto be constituted by the Chief Justice under Section 48 A. ”
C. S. Barr Kumarakulasinghe, with K. Ratnesar, for Applicant-Appellant.
H. W. Jayewardene, Q.G., with N. R. M. Daluwatte and D. S.Wijewardene, for Defendant-Respondent.
Cur. adv. vuU.
364:
BASNAYAKE, C.J.—Baby Nona v. Kahingala
July 20, 1964. Basnayake, C.J.—
This is an appeal under section 17 of the Maintenance Ordinance ,bythe unsuccessful applicant for an order of maintenance. It came onfor hearing before my brother Sansoni, who, acting under section 48 ofthe Courts Ordinance, has referred for the decision of more than oneJudge of this Court certain questions of law which arose for adjudica-tion before him on this appeal. Acting under section 48a, I made orderconstituting the present Bench.
The material facts are as follows:—On 31st January 1969 theapplicant Passikku Hennedige Baby Nona made under section 13 of theMaintenance Ordinance an application in writing signed by her for main-tenance for her illegitimate child in a sum of Rs. 75 per mensem.Ranasena Kahingala , the respondent to this appeal, was named thereinas the father of the illegitimate child and as respondent to the applica-tion. On the reverse of the application is typed a statement signed bythe apiplicant in the form in which evidence is usually recorded, but itis not on oath or affirmation. That statement contains a repetition ofthe allegations in the application. It would appear that the statementhas been typed at the same time as the application and submitted alongwith it. Below the appellant’s signature there is what purports tobe another signature. It is not clear whose it is. It is not identicalwith the Magistrate’s signature which appears under the order madeby him the same day—“ Issue summons for 7 If. j 59 ”. Summons wasserved on the respondent by the date fixed in tF.e order. The applica-tion was thereafter fixed for inquiry and the proceedings concluded on29th October 1960 on which date the learned Magistrate dismissed theapplication of the applicant.
/
The questions arising for decision on the references are—
(а)whether compliance with section 14 of the Maintenance
Ordinance is a condition precedent to an inquiry under theMaintenance Ordinance,
(б)whether non-compliance with section 14 renders the proceedings
null and void, and
whether the applicant in the present case is barred fromquestioning in appeal the validity of the proceedings beforethe Magistrate for the reason that no objection was taken atthe inquiry.
The main submissions of counsel for the appellant are—
(а)that compliance with section 14 is a condition precedent to an
inquiry under the Maintenance Ordinance,
(б)that non-compliance with section 14 renders the proceedings
null and void whether objection is taken in the lower Courtby either party or not, and
BASNAYAKE, C.J.—Baby Nona v. Kahingala
365
that, where there has been non-compliance with, section 14, theappellant is not barred from raising in appeal the question'of the validity of the proceedings even though no objectionwas taken in the lower Court.
The main submissions of learned counsel for the respondent are—
(а)that the appellant did not in the lower Court raise any objection
to the proceedings on the ground that there has been nocompliance with section 14,
(б)that the appellant is therefore estopped from objecting now,'
and
(c) that non-compliance with section 14 does not render the proceed-ings null and void, as there is no provision in the Ordinancedeclaring proceedings not in conformity with section 14 nulland void.
•>
The Maintenance Ordinance is a special enactment which confers on alegitimate or illegitimate child or wife the right to maintenance. Italso prescribes the procedure to be followed in obtaining an order formaintenance. The right is a civil right and not a matter within theordinary jurisdiction of a Magistrate’s Court as constituted by theCourts Ordinance. That jurisdiction is thus defined by section 81 ofthat Ordinance—
** Every Magistrate’s Court shall have and exercise all powers andauthorities and perform all duties which Magistrates’ Courts are em-powered and required to have, exercise, and perform by virtue of theprovisions of the Penal Code or of the Criminal Procedure Code,or of any other enactment for the time being in force in any wayempowering or requiring them in that behalf. ”
Now the authority on whom the Maintenance Ordinance confers powerto make orders for maintenance and enforce them is the Magistrate andnot a Magistrate’s Court. All the sections speak of a Magistrate exceptsection 9 which empowers the making of an order as to costs. Thatsection reads—
“ When disposing of any application or appeal under this Ordinance,the Magistrate’s Court or the Supreme Court may order either partyto pay all or any part of the costs of such application or of the costs ofapplication and appeal, as the case may be, and such order shall besubject to the provisions and conditions laid down in the Civil ProcedureCode, relating to costs so far as they may be applicable, and the amountdue under the Order shall be recoverable as if it were a fine, and indefault of payment imprisonment of either description may be imposedfor a period not exceeding one month :
Provided that bills of costs shall be taxed according to the lowestrates specified in the Second Schedule of the said Code under head‘ Courts of Requests ’ and ‘ Appeals from Courts of Requests ’. ”
•B. 1732 (10/64)
366
BASNAYAKE, C.J.—Baby Nona v. Kahingala
Although the section speaks of a Magistrate’s Court, the context showsthat the legislature had in contemplation the Magistrate and not theMagistrate’s Court, because it is the Magistrate and not the Magistrate’sCourt that is empowered to dispose of an application under the Ordin-ance. The expression “ Magistrate ” would have been in accord withthe rest of the Ordinance and in keeping with its design which is to conferon a Magistrate as distinct from a Magistrate’s Court the powers con-ferred thereby. That the Magistrate is a persona designate, is evidentfrom the fact that when acting under the Ordinance he may exerciseonly the powers expressly conferred by the enactment and not all thepowers which are conferred on a Magistrate’s Court under the CriminalProcedure Code. This fact is brought out in sections 15, 16 and 17.The first of those sections provides that the Magistrate may proceed inmanner provided in Chapters V and VI of the Criminal Procedure Codeto compel the attendance of the defendant and the witnesses of theparties. Such a provision would be unnecessary if it was the Magistrate’sCourt that was exercising the power granted by the Ordinance. Thesecond of the above-mentioned sections provides for the mode of recordingevidence and states that all evidence taken by the Magistrate under theOrdinance “ shall be recorded in the manner prescribed for trials in theMagistrate’s Court Such a provision would also be unnecessary ifit were the Magistrate’s Court that was mentioned in the Ordinance.The third and the last of the provisions confers a right of appeal on thedissatisfied party from an order of the Magistrate “ in like manner asif the order was a final order pronounced by a Magistrate’s Court in acriminal case or matter That section, especially the words “ as if ”therein, brings out clearly the fact that the authority authorised to makeorders is not the Magistrate’s Court, but the Magistrate. There is no *need to equate the Magistrate’s order to that of a Magistrate’s Courtif it is the Magistrate’s Court itself that is acting.
The resulting position is that it is the Magistrate that is designatedin the Ordinance. It is now well established by a series of decisionsof this Court that the Magistrate when acting under the Ordinance hasno more powers than those expressly conferred on him and that onlythose provisions of the Criminal Procedure Code, expr ssly declared tobe applicable to proceedings under the Ordinance apply—(CMvakanni-pttlai v. Chuppramanian1 ; Isabel v. Pedru Pillar2; Anna Perera v.Emaliano Nonis 8 ; Esanda v. Surata 4). Section 425 of the CriminalProcedure Code which is excluded by implication by the Ordinancecannot therefore be called in aid to cure any omission by the Magistrateto observe the requirements of the Ordinance—see also Anna Perera u.Emaliano Nonis5. It is common ground that the Magistrate failed toobserve the provisions of section 14. That section reads—
** Upon application being made for such order or warrant as aforesaid,the Magit trate shall commence the inquiry by examining the applicant
1 (1896) 2 N. L. R. 60.a (1908) 12 N. L. R. 263 at 266.
• (1902) 6 N. L. R. 85.« (1919) 6 C. W. R. 125.
6 (1908) 12 N. L. R. 263 at 270 and 272.
BASNAYAKE, C.J.—Baby Nona v. Kahingala
367
on oath or affirmation, and such examination shaU be duly recorded.If after such examination there is in the judgment of the Magistrateno sufficient ground for proceeding, he may make order refusing toissue a summons.”
The section provides for two kinds of applications. An applicationfor an order for maintenance and an app'ication for a warrant to enforcean order for maintenance when the person against whom the order ismade neglects to comply with the order. Provision is made in section13 for the form in which an application for an order of maintenanceis to be made, and section 8 provides for the form in which an applicationfor a warrant is to be made. In each case a condition precedent to thecommencement of the inquiry is the examination of the applicant onoath or affirmation and the recording of such examination. The materialwords are “ The Magistrate shall commence the inquiry by examiningthe applicant on oath or affirmation ”. The word “ shall ” is imperativeand whenever a statute declares that a thing “ shall ” be done, the naturaland proper meaning is that a peremptory mandate is enjoined unless thecontext contains clear words which indicate that the direction is notcompulsory but discretionary. Here, there are no such words and theMagistrate is bound to carry out the directions in the section. If hedoes not take the step prescribed for commencing proceedings, thenthe Magistrate cannot be said to have commenced proceedings .underthe Ordinance. Any further steps that are taken by him are step in aproceeding not commenced under the Ordinance. The parties have noright to say that they are prepared to submit to the breach of the enact-ment by the Magistrate. In this connexion the following passage fromCraies’ Statute Law (6tb Edn., p. 264) is in point—
“ Statutory enactments, although expressed in affirmative language,are sometimes treated as having a negative implied, and that theirprovisions, ‘ though as Lord O’Hagan said in R. v. All Saints, Wigan,
* affirmative in words, are not necessary so, if they are absolute, ex-plicit, and peremptory ’. In Viner’s Abr. the following rule is laiddown : ‘ Every status limiting anything to be in one form, althoughit be spoke in the affirmative, yet includes in itself a negative ’; andin Bacon’s Abr. the rule given is that ‘ if an affirmative statute which• is introductive of a new law direct a thing to be done in a certain way,that thing shall not, even if there be no negative words, be done in anyother way. ’ ”
The following passage in Maxwell on Interpretation of Statutes (11thEdn. p. 368) supports what is said in Craies—
“ The same imperative effect seems, in general, presumed to beintended even where the observance of the formalities is not a conditionexacted from the party seeking the benefit given by the statute, buta duty imposed on a court or public officer in the exercise of the powerconferred on him when no general inconvenience or injustice calls for adifferent construction. ”
368
BASNAYAKE, C.J.—Baby Nona v. Kahingala
No general inconvenience or injustice calls for a different constructionin section 14. In the instant case there is a further rule of interpretationthat applies. Section 14 prescribes a condition precedent to an inquiryunder the Ordinance. In such a case the rule is stated as follows l>yMaxwell (11th Edn. p. 375) :—
“ Where, however, the act or thing required by the statute is acondition precedent to the jurisdiction of the tribunal, compliancecannot be dispensed with, and if it be impossible the jurisdictionfails. It would not be competent to a court to dispense withwhat the legislature had made the indispensable foundation of itsjurisdiction. ”
It was urged by learned counsel for the respondent that the maximcuilibet licet renuntiare juri pro se introducto applied to the MaintenanceOrdinance. We are unable to uphold that contention. As statedby Maxwell, that maxim only enables a person “ to waive and to agreeto waive the advantage of a law or rule made solely for the benefit andprotection of the individual in his private capacity, which may bedispensed with, vnthout infringing any public right or public policy *«(Maxwell, 11th Edn. p. 376).
Section 14 does not make a rule solely for the benefit of the individualin his private capacity and the question of waiver does not arise. Herethe Magistrate is required to commence proceedings under the Ordinancein a certain way. No party can absolve the Magistrate from that duty,'privatorum conventio juri publico non derogat. It has been held in the caseof Jane Hamy v. Darlis Zoysa1 that the provisions of the MaintenanceOrdinance for the maintenance of children by their fathers areobvisiously not intended purely for the benefit of the mother. Theycan be enforced by the Magistrate, even if the mother takes no stepsfor that purpose or if she is dead. It has also been held that where anapplication for maintenance has been made by the mother and has beencompromised by an arrangement between her and the father, thatcannot deprive the Court of the power of afterwards ordering the manto make provision for maintaining the children if he neglects to do eo.A further reason why the principles governing waiver have no applicationto the instant case is that the claim is made by the mother on behalfof her infant child and not on her own behalf. Anything done by themother which she is not entitled in law to do cannot bind the infantand the principles governing waiver have no application. Even inregard to a benefit that may be waived, the waiver must be a deliberateact of the party concerned. Where nothing is said or done to indicatethat the party concerned is giving up a right, there is waiver for thereis no conscious act. It is correct that when a benefit can be waived andthere is a conscious waiver, the party making the waiver cannot recallthe concession.
1 (1909) 12 N. L. R. 10.
BASNAYAKE, C.J.-—Baby Nona v. Kahingala
369
Learned counsel also contended that the appellant was estoppedfrom raising in appeal the objection that the requirements of section 14had not been complied with. Estoppel in our law is a rule of evidenceand does not empower parties to legal proceedings to absolve Judgesfrom performing what the statute enjoins—(1937) A.C. 610; (1911)A.I.R. 234 at 236 ; (1949) 2 D.L.R. 17. Rules of equity have no placein the construction of a statute. If the requirements of a statute havesn fact not been complied with, the consequence is that the act con-templated in the statute has not been done [(1944) A. I. R. Calcutta,p. 280-281], and all subsequent acts do not have the authority of thestatute.
Learned counsel for the respondent relied on a passage from Voet(Bk. II Tit. 4 sec. 14) in support of his contention that non-compliancewith the statute does not invalidate subsequent proceedings in whichthe parties have participated. The passage in question does not dealwith non-compliance with a statute such as the one in the instant case,but with the servioe of summons and the effect of a voluntary appearanceon an invalid summons. He also referred us to certain English decisions,all of which it is not necessary for the purpose of this judgment to referto, in support of his contention that appearance of the defendant withoutobjection in answer to a summons issued not in accordance with thestatute cures the defect and is a bar to his raising objection to the defectafterwards. He relied particularly on Fry v. Moore1. The questionin that case was whether the service of a writ under a wrong order forsubstituted service was an irregularity rather than a nullity. Lindley
J. held that it was an irregularity rather than a nullity, and went on toBay—
“ … I am not prepared to say that an improper mode of
serving the writ is a nullity that cannot be waived. Then, was theirregular service of the writ waived in the present case ? The defendanthas taken two steps which are inconsistent with there having beenko proper service of the writ: First, the brother, who had been servedtook out a summons to set aside the judgment that had been signedin default of appearance, and for delivery of a statement of claim.I think that the brother knew the facts, and had authority to actfor the defendant. But further, after the defendant had beencommunicated with and had himself instructed a solicitor, anothersummons was taken out in the same terms. These two summonsesappear to me to be so inconsistent with the contention that the writhad not been properly served as to amount to a waiver of the irregu-larity. Under these circumstanoes the case stands thus : The writitself was perfectly regular; the order for substituted service of thewrit was wrong ; service of the writ in pursuance of that order wa3an irregularity, but not a nullity; and the irregularity has beenwaived. ”
1 61 L. T. p. 545.
370
BASNAYAKE, C.J.—Baby Nona v. KahingaZa,
But in Craig v. Kanseen 1, which reviews some of the earlier Englishcases including Fry v. Moore {supra), it was held that failure to serveprocess where service of process is required is a failure which goes tothe root of the English conception of the proper procedure in litigation;It was also held that where, apart from proper ex parte proceedings*an order had been made against a man who had no notification of anyintention to apply for it, the order could not be treated as a mere irre-gularity, but as something which was affected by a fundamental vice.In our opinion Craig v. Kanseen contains the better view in regard te-non-compliance with essential steps in procedure prescribed by a statute:In regard to non-compliance with a statute, even under the HomanButch Law, a Judge had no power to ignore the written law. Thefootnote at page 10 of Vol. I of Gane’s translation makes this clear andis as follows :—
“ What the author sets put in this section on equity is quite inaccord with the analogy between equity and law. It must be heldas a general rule that the prime glory of a judge is to follow the lawin accord with the oath which he has taken and not the wild andslippery whim of individuals, since judges and jmists ought to look tonothing more carefully than this, that they do not forsake the writtenlaw for some head-strong equity (for what seems fair to A seemaunfair to B) : ”
!No case has been cited to us in which it has been held that theexamination on oath or affirmation need not be done and that theevidence need not be recorded before issuing a warrant for the enforce-ment of an order for maintenance. If in one case the examination isimperative, it cannot be different in the other case. For the abovereasons we are of opinion that—
(а)compliance with section 14 is a condition precedent to an inquiry
under the Ordinance,
(б)non-compliance with section 14 renders the proceedings null and
void, and
(c) the applicant in the present case is not barred from questioningin appeal the validity of the proceedings before, the Magistrateeven though no obiArttion was taken at the inquiry.
Before we part with this judgment we wish to refer to the case ofLedgard v. Bull 2 which' my brother Sansoni thought contained a principlewhich had been overlooked in the case of Rupasinghe v. Somawathie3.
1 (1943) 1 All E. R. 108.2 Indian Decisions, New Series 602-, 9 Allahabad 192.
3 (1959) 61 N. L. R. 457.
SIRIMANE, J.—Baby Nona v. Kahingala
371
A close examination of Ledgard's case reveals that the principle laiddown in Somawathie’s case finds support therein. There too it was acompetent court that tried the case ; but the proceedings were comrmenced in the wrong way and not in accordance with the law. It willbe of assistance if the facts are briefly noticed. The action was for in-fringement of a patent. It was instituted in the Court of the sub-ordinate Judge contrary to an express prohibition in the Patent Actthat no such suit should be maintained before that Court. Thereafteran application was made to the District Court which had jurisdictionto try patent cases to transfer the case from the subordinate Judge tothat Court. The District Court then made order transferring the casealthough it had no power to do so under section 25 of the Civil ProcedureCode under which the District Court purported to act. The defendantobjected to the jurisdiction of the District Court. The District Judgeoverruled the objection, but the Privy Council upheld it and in doing soobserved—
“ … The District Judge was perfectly competent to entertain
and try the suit if it were competently brought, and their Lordshipsdo not doubt that, in such a case, a defendant may be barred, by hisown conduct, from objecting to irregularities in the institution of thesuit. When the Judge has no inherent jurisdiction over the subjectmatter of a suit, the parties cannot, by their mutual consent, convertit into a proper judicial process, although they may constitute the Judgetheir arbiter, and be bound by his decision on the merits when theseare submitted to him.”
The expression “ jurisdiction ” is used in more than one sense in law—one in a general sense and the other in a narrower sense. It mayeither mean what is ordinarily understood by that term when used with. reference to the local jurisdiction of a Court, or pecuniary jurisdictionof a Court, or its jurisdiction with reference to the subject-matter of asuit; or it may mean the legal authority of a Court to do certain things.The question of jurisdiction can be said to arise in the instant case onlyin the last mentioned sense which is also the sense in which the questionarose for decision in Ledgard v. Bull {supra).
Abeyestjndere, J.—I agree.
Shumane, J.—
The appellant filed this action in the Magistrate’s Court of Gall©claiming maintenance from the respondent, who, she alleged, was thefather of her illegitimate child. Her application was refused.
372
STRIMANE, J.—Baby Nona v. Kahingala
She appealed against that order, and when the appeal came up forhearing before my brother Sansoni he reserved two questions for decisionby a Bench of more than one Judge. These questions are :—
whether the failure to comply with the provisions of section 14of the Maintenance Ordinance, (Cap. 91), renders allsubsequent proceedings invalid ;
whether the applicant in this case is barred from questioningthe validity of such procsedings.
Section 14 reads as followi :—“ Upon an application being made forsuch order or warrant as aforesaid, the Magistrate shall commencethe inquiry by examining the applicant on oath or affirmation, and suchexamination shall be duly recorded. If after such examination thereis in the judgment of the Magistrate no sufficient ground for proceeding,he may make order refusing to issue a summons.”
This section was obviously designed to protect a person from theembarrassment of having to defend himself in proceedings of this natureunless there was a prima facie case against him.
In this case the appellant had presented to Court a typed applicationsigned by her and her Proctor. On the reverse of this paper there appearthe name of the appellant, her age, and her,place of residence, followeda type-written statement of facts on which the claim against therespondent was based. This statement is signed by the applicant.The Magistrate himself has signed it thereafter and made order for theissue of summons. According to the procedure which was followed inMagistrates’ Courts at that time it was the practice for an applicantto get into the witness box and on oath or affirmation repeat the writtenstatement submitted by her to Court.
On the face of the order it would appear that this statement was notmade on oath or affirmation, and also that it had not been recorded inCourt. There was, therefore, a non-compliance with the requirements ofsection 14 of Cap. 91. I have no doubt, however, that when he signedthe statement the learned Magistrate brought his mind to bear on thequest ion whether or not there was sufficient material on which to summonthe respondent.
When summons was served on the respondent he appeared in Courtand denied paternity. The case was then fixed for hearing, and after alengthy trial, which lasted several days, the learned Magistrate madeorder dismissing the application.
SURIMANE, J.—Baby Nona v. Kahingala
373
– In my view there can be no doubt that the learned Magistrate hadjurisdiction to make the order that he did ; for, it is section 2 of theMaintenance Ordinance which vests the Magistrate with jurisdictionto make or refuse an order for maintenance, and not section 14. Doesthe failure to comply with the provisions of section 14 then vitiate allsubsequent proceedings ?
I cannot assent to the proposition that whenever there has been abreach of a statutory requirement, all acts done thereafter are voidand of no legal effect. A distinction must be drawn between thosebreaches which “ have the effect of emasculating the general purpose ofthe statute ” (as Spencer Bower puts it) and those which do not.
Referring to the latter type of irregularity Spencer Bower (The Law
«
relating to Estoppel, page 187) says “ On the other hand where it ismerely a question of irregularity of procedure, or of a defect in°contingent * jurisdiction, or non-compliance with statutory conditionsprecedent to the validity of a step in the litigation, of such a characterthat, if one of the parties be allowed to waive, or by conduct orinaction to estop himself from setting up, such irregularity or want of* contingent’ jurisdiction or non-compliance,no new jurisdiction is therebyimpliedly created, and no existing jurisdiction is thereby impliedlyextended beyond its existing boundaries the Estoppel will bemaintained, and the affirmative answer of illegality will fail: for, theRoyal prerogative not being invaded, and the State therefore not beinginjured, nor any of His Majesty’s subjects for whom that Royal preroga-tive is held in trust, there is no ground of public policy, or other justcause, why the litigant, to whom alone in that case the statutory benefitbelongs, should not be left free to surrender it at pleasure, or why, havingso surrendered it, whether by contract, or by conduct or inactionimplying consent, he should be afterwards permitted to claim it.”
One has to bear in mind that in a maintenance case the liability of therespondent is a civil one, even though the case is heard by a Magistrate,and criminal procedure is adopted at the trial. The decisions whichlay down the principle that in criminal cases, where the liberty of thesubject is at stake, the procedure laid down should be strictly followed,do not, in my opinion, apply to maintenance cases.
In the old Privy Council case of Ledgard and another v. Bull1 it washeld that, “ when a suit has been tried by a Court having no jurisdictionover the matter, the parties cannot by their mutual consent convert theproceedings into a judicial process ; although when the merits have been
1 (1886) IX Allahabad, page 192.
374
SIRIMANE, J.—Baby Nona v. Kahingala
submitted to a Court it may result that, having themselves constitutedit their arbiter, the parties may be bound by its decision. On the otherhand in a suit tried by a competent Court the parties having withoutobjection joined issue and gone to trial upon the merits, cannot subse-quently dispute the jurisdiction on the ground of irregularities in theinitial procedure, which if objected to at the time would have led to thedismissal of the suit **.
The failure to strictly comply with the provisions of section 14 is nodoubt an irregularity in the initial procedure, but, in my opinion, it doesnot vitiate all the subsequent proceedings. This case was referred toand the same principle followed in the case of Alagappa Chetty w.Arumugam Chetty et al.1
Tn that case the Court approved of the principle that where jurisdictionover the subject matter exists, requiring only to be invoked in theright way, the party who has invited or allowed the Court to exerciseit in a wrong way cannot afterwards turn round to challenge the legalityof the proceedings due to his own invitation or negligence.
I do not think it necessary to refer to all the authorities cited at theargument, in which this principle has been followed. It is sufficient torefer to the cases of Thevagnanasekeram v. Kuppammal et al 2, MissThomas v. Bawa 8, Weerasooriya v. The Controller of Establishments*,,Ratnayake v. Amarasekera et al.5, and the English case of Fry v. Moore *.
With great respect I am unable to share the views expressed in Nama-sivayam v. Saraswathy7 and Rupasinghe v. Somawuthie8 and I findmyself in respectful agreement with the decisions in Podina v. Soda6and Sebastian Pillai v. Magdalene10.
I am of opinion, therefore, that:—
CO a failure to comply with the provisions of section 14 does notrender the subsequent proceedings invalid, and
(ii) that the appellant having taken part in these proceedings cannotnow question their validity.
Proceedings held invalid.
1 (1920) 2 Ceylon Law Recorder, page 202.a (1934) 36 N. L. R. 337.
8 (1945) 46 N. L. R. 215.
* (1949) 51 N. L. R. 189.
8 (1955) 58 N. L. R. 462.
• (1889) 23 Q. B. D. 395.
(1949) 50 N. L. R. 333.
(i959) 61 N. L. R. 457.8 (1900) 4 N. L. R. 109.
10 (1949) 50 N. L. R. 494.