( 865 )
PEBEBA v. ADONIS APPU et at.
P. C., Avisawella, P 14.
Cattle Trespass Ordinance, 1876—Award of damages for trespass—Appealability of order—Criminal Procedure Code, s. 338—Civil Procedure Code,s. 754.
Per IiAWrie, J.—It is doubtful whether an appeal lies against anaward by a Police Magistrate of damages made under section 7 of “ theCattle Trespass Ordinance, 1876.”
N this case two headmen assessed the damages done by somecattle trespassing on the property of the complainant at
Bs. 64.25. The report was sworn to and the Police Magistrateordered the trespassing animals to be sold, as the owners refusedto pay the damages.
The owners appealed.
H. J. C. Pereira and H. Jayawardena, for the appellant,contended that the procedure laid down by the Ordinance No. 9
( 366 )
of 1876, as to the method of assessing damages, had not beenfollowed.
Cm. adv. vult.
Mr. Justice Lawrif. dismissed the appeal by the followingjudgment: —
I am not sure that an appeal lies against an award by a Magis-trate of damages made under 7th section of Ordinance No. 8of 1876. I am of course aware that there have been many casesin which this Court has quashed proceedings and awards whichprofessed to have been made under the Cattle Trespass Ordinance,but in which the rules of procedure enacted in the 7th sectionhad been ignored or broken.
I refer to the case reported in 1 8. C. C. 24, 86; 3 8. C. C. 25,and to others. In quashing these proceedings this Court priorto 1883 probably acted under the powers recognized in the108th section of Ordinance No. 1.1 of 1868, and when thatsection was repealed by the Criminal Procedure Code it wasdoubted by a Police Magistrate of Trincomalee, in deciding P. C.500, whether the appeal lay.
The question was considered by Mr. Justice Clarence in 8 S.C. C. 79, and he held that an appeal lay, because the matterwas civil and not criminal, and that the provisions of the CriminalProcedure Code had nothing to do with it.
The Criminal Procedure Code (406 of the old, 338 of the new)provides for appeals pronounced by any Police Court in a crimi-nal. case or matter and if this appeal be not, as Mr. JusticeClarence held it was not, a criminal matter, then we must turn tothe Procedure Code to see if any provision be madg therein foran appeal in such a case as this.
As I read the Civil Procedure Code, the 754th section providesfor appeal from original Courts, and original Courts by theinterpretation clause include District Courts and Courts ofBequests. I take that to mean an exclusion of Police Courts.
Still there are in The Courts Ordinance recognitions of appellatejurisdiction in this Court to correct all errors of fact and lawcommitted by Police Courts, but I find in the Civil ProcedureCode no provisions as to appeals from the civil orders of PoliceCourts. Very much the same difficulty exists with regard toappeals from orders made under section 7 of the Cattle TrespassOrdinance, as seemed to the majority of this Court to exist inappeals from certain orders made by Police Courts in maintenancecases.
However, dealing with the appeal as it was before me andwas argued on the ground that the procedure had not been
followed, I find that there was a report by a headman and anassessment of damages. The appellants were before the PoliceCourt, and did not object to the procedure, nor so far as appearsdid they object to the award of. damages.
I see no reason to disturb the order, objection to which wasstated for the first time in appeal.
The appeal is dismissed.
January 15.Imwbib, J.
PEREEA V. ADONIS APPU et al.