042-NLR-NLR-V-63-PODINONA-Appellant-and-RANASINGHE-Respondent.pdf
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Podinona v. Ranasinghe
1960Present : Weerasooriya, J.PODINONA, Appellant, and, RANASINGHE, RespondentS. G. 1160—M. G. Teldeniya, 2337
^Maintenance Ordinance (Cap. 76)—Section 14—Issue of summons on defendant—Failure to examine the applicant previously on oath—Proceedings become nulland void.
In an application for maintenance under the Maintenance Ordinance thefailure to examine the applicant on oath or affirmation, or duly to record suchexamination, prior to the issue of summons on the defendant renders the pro-ceedings null and void. In such a case the applicant herself is entitledto challenge the validity of an order dismissing her application.
Appear from an order of the Magistrate’s Court, Teldeniya.
M. S. M. Nazeem, with M. T. M. Sivardeen, for applicant-appellant.K. Sivasubramaniam, with JD. S. Nethsinghe, for defendant-respondent.
Cur. adv. vult.
1 {1945) 46 N. L. R. ISO.
WEERASOORIYA, J-—Podinona v. Rona&inghe
211
October 7, 1960. Wjejekasoobiya, J.—
This is an appeal from an order of the Magistrate of Teldeniya dis-missing an application for maintenance filed by the appellant against therespondent who is her husband.
The point has been taken on behalf of the appellant that the procedureadopted by the Magistrate prior to the issue of summons was in contra-vention of section 14 of the Maintenance Ordinance (Gap. 76) in that hefailed to examine the appellant on oath or affirmation, or duly to recordsuch examination. Relying on tne recent decision of this Court inRupasinghe v. Somatoathie 1, learned counsel submitted that the failureto comply with section 14 has rendered the proceedings, including theorder dismissing the application for maintenance, a nullity and that thecase should, therefore, be sent back for fresh proceedings in accordancewith law.
It was because of the conflicting views expressed in Namasivayam v.Sarasioathy 2 and Sebastian Pvlle v. Magdalene 3 (each of which is a deci-sion of a single Judge) that the case of Rupasinghe v. Somatoathie (supra)was referred to a bench of two Judges. The appellant in that case wasthe respondent to an application for the payment of maintenance, and theappeal was from an order requiring him to pay maintenance. There toothe Magistrate failed to comply with the provisions of section 14,and in appeal it was held that the non-compliance was fatal to the orderand rendered it null and void.
Mr. Nethsinghe for the respondent did not dispute that there has been afailure in the present case to comply with section 4, but he submitted thatat the most it is an irregularity which does not affect the validity of theorder dismissing the application for maintenance. I do not think how-ever. that such an argument is tenable in view of the decision inRupa-singhe v. Somatoathie (stipra). While, if I may say so with respect,
I am unable to agree with that decision, it is, nevertheless, binding on meand the present appeal has to be disposed of on that basis.
Mr. Nethsinghe also submitted that the ratio decidendi of that case isinapplicable to the present case as the appellant, who is the party whoinitiated the proceedings for maintenance and practically acquiesced in theMagistrate’s non-compliance with the provisions of section 14, should notnow be allowed to challenge the validity of the order made in those pro-ceedings. But if the result of such non-compliance is to render thoseproceedings null and void, 1 do not see that consent or acquiescence on thepart of the appellant can possibly cure the defect.
The order appealed from is declared null and void, and the case is sentback for fresh proceedings to be taken before another Magistrate inaccordance with law. There will be no order as regards costs.
Order set aside.
1 (1959) 61 N. L. R. 457.^2 (1949) 50 N. L. R. 333.
a (1949) 50 N. L. R. 494.