079-NLR-NLR-V-26-PINCHOHAMY-v.-AKORIS-APPU.pdf
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Present : Bertram C.J. and Schneider J.
PINCHOHAMY t. AKOBIS APPU.
23—P. C. Matara, 88,861.
Maintenance—Competency of Court to award costs—Ordinance No. 19of 1889, s. 9.
A Court has do power to award costs in maintenance cases.
T
HIS was a reference to the Supreme Court* by the PoliceMagistrate of Matara tinder section 353 of the Criminal
Procedure Code. The question put by the learned Police Magis-trate arose in a maintenance case and was as follows:
“ Can a respondent be committed to jail for non-payment of theapplicant's costs in the same manner that he can becommitted for non-payment of arrears of maintenance ?**
j. Joseph, for the appellant.
M. W. H. de Silva, 0.0., for the Crown.
October 3, 1924. Bertram C.J.—
This is a reference which has been made to this Court by a learnedPolice Magistrate under the provisions of section 353 of the CriminalProcedure Code, and in accordance with an order by our brotherJayewardene it has been set down for argument before two Judges.
The question arises out of a maintenance case in which an appeal.was brought to this 'Court, and on that appeal an order was madeallowing tthe appeal, and directing that the ‘ costs be paid by therespondent both in .this* Court and in the Court below. The questionpropounded by the learned Magistrate was “ Can the respondent*be committed to jail for non-payment of the applicant's costs in, the same manner that he can be committed for non-paymentof arrears of maintenance ?**
The question whether this Court oh appeal under the Maintenance'Ordinance is competent to direct that costs shall be paid in respecteither of proceedings in this Court, or of proceedings in the Courtbelow, does not strictly arise in this reference. But that questionis so closely connected with this reference that it is necessary forus to examine'it. The nature of maintenance proceedings hasbeen carefully explained in the. case of Anna Perera v. EmalianoJYoms, 1 and effect has been given to one of the principles laid1 {1908) 12 N. L. R. 263.
1924.
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1924. ' down in that case by adecision of three Judges ofthis Court
PlvuT(Fernando v. Fernando *).The principle to which I refer is that
J.the Maintenance Ordinance only incorporates suchprovisions
—of the Criminal ProcedureCode as. are expressly or byimplication
therein refereed to. We carried this principle so far in Fernando c.
Appu Fernando (supra) that we held that there was no time limit to anappeal under the Maintenance Ordinance. Both in that judgmentand in the judgments given in Anna Perera v. Emaliano Nonis (supra),the opinion was very explicitly expressed that the maxim exprctxhunius exclusio alteriue prevented our Courts from applying inproceedings under the Maintenance Ordinance any previsionof the Criminal Procedure Code, not expressly or by implicationincorporated. 1 see no logical escape from the further conclusionthat section 852 of the Criminal Procedure Code does not applyto proceedings under the Maintenance Ordinance. It wouldappear, therefore, • that the practice which we have adopted ofawarding costs in appeals under the Maintenance Ordinance hasarisen by an oversight, and we appear to have no general powerunder any of the Ordinances regulating our proceedings to awardcosts. Nor can it- lie suggested that we have auv inherent powersfor that purpose. Even, however, if we held that this Court haspower to award costs in maintenance proceedings, it would appearthat there, is no provision in the Maintenance Ordinance whichallows those costs to be enforced by process of imprisonment.Section . 9 of the .Maintenance Ordinance says nothing about costs.The form of warrant provided in the schedule does not include anyreference to costs. This is all the more marked when we bearin mind that in the corresponding previsions under the laws ofEngland costs are expressly refereed to. The answer to the inquiryof the learned Magistrate must-, therefore, be in the negative.
It iippears, however, that the law in regard to this matter isdefective, and that it requires the attention o£ the legislature.On the one side there is no time limit for an appeal under theMaintenance Ordinance:On the other hand, a person who has
to invoke the powers of the Court to obtain justice is not allowedto be reimbursed necessary costs. A person who is unjustlybrought into the Police Court on a claim for maintenance cqttnqtrecover his necessary costs, and neither party can recover costs' ofany necessary appeal.
i
ScHXRiDKR J.—I agree. 1
1 (1921) 23 N. L. R. 31.