051-NLR-NLR-V-54-PUNCHI-Appellant-and-TIKIRI-BANDA-Respondent.pdf
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Punchi v. Tikiri Banda
1T951
Present: H. A. de Silva J.
PUNCHI, Appellant, and TIKIRI BANDA, Respondent
S. O. 1,192—M.C. Kandy, 8,580
maintenance—Withdrawal of application—Institution of second suit—Ties judicata.
Where an applicant in an application for maintenance in respect of anillegitimate child withdrew her case on the date of trial stating that she hadnot enough evidence to prove paternity and subsequently made a secondapplication in respect of the same child—•-
Held, that the order of dismissal in the first suit operated as bar to the secondapplication.
(1950) 52 U. L. R. 193.
(1950) 51 N. L. R. at p. 421.
H. A. DE SILVA J. —Punchi v. Tikiri- Ban4n
211
Ap
PEAL from a judgment of the Magistrate’s Court, Kandy.
P.Somatilakam, for the applicant appellant.
G. E. Ghitty, with. S. C. E. Rodrigo and K. Sivasubrarnaniam, for thedefendant respondent.”
Cur. adv. wilt.
May 15, 1951. ' H. A. oe Silva J.—
This is an appeal by the applicant-appellant who sued the defendant-respondent for maintenance for her child named Pema, aged eight months.The appellant alleged that the defendant-respondent was the father ofthe child. The appellant states in her affidavit submitted to Courtthat she was the mistress of the defendant-respondent. The defendant-respondent denied paternity. When the case came up for trial defendant-respondent’s proctor raised a preliminary point of law and argued thatthe order in M. C. Kandy No. 6,416 between the same parties operatedas res judicata. A certified copy of the proceedings in that case hasbeen produced. The learned Magistrate upheld the contention of thedefendant-respondent’s proctor .and dismissed the application. Theappeal is now from that drdfer'-(5f dismissal.
It would appear that' the apphcant-appellant applied for an orderfor maintenance in M. C. Kandy No. 6,416 against the same defendant.The affidavit supporting that application is dated 3rd November, 1949.On the summons returnable date, in that case, namely, 7th January,1950, both applicant and defendant were present. The defendantdenied paternity and the matter was set down for inquiry for the 15thFebruary, 1950. After various postponements the case ultimately cameup for trial on the 5th of June, 1950. On that date both applicantand defendant were represented by lawyers and the parties too werepresent. The lawyer appearing for the applicant made the followingstatement to Court :—“ Mr. Silva states that his client is withdrawingthe case as she has not enough evidence to maintain paternity ”, TheMagistrate accordingly dismissed her application. Subsequently inthe same month and the same year the applicant has made the presentapplication which has been dismissed, and from which order of dismissalthe present appeal is taken. The ground on which the present appli-cation has been dismissed was that the order in the previous applicationoperated as a bar to the present one. Learned Counsel for the appellanthas urged that the dismissal of her application in the present suit iswrong.
Various authorities have been submitted to me by learned Counselwho have argued the case before me. I may at this stage make mention
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~FT A. EE SILVA J.—Punchi v. Tilciri Banda
of the fact that it is not the appellant’s ease that the lawyer who appearedfor her in M. C. Kandy No. 6,416 was not instructed by her to make thestatement that he made to Court and that he had no authority to makethat statement. So that, whether that statement was made to Courtby her personally or through her proctor makes no difference whatsoever.If I understood the learned Counsel for the appellant correctly, he con-ceded that if the woman got into the witness-box and stated on oathor affirmation what her proctor stated to Court in that case, the orderof dismissal in the present suit by the learned Magistrate is correct.But as the statement was made at the bar table by her proctor oninstructions from her the position is different. I am afraid I cannotsee the distinction that is sought to be drawn between the two. It wasargued by the 'appellant’s counsel that inasmuch as the merits werenot gone into in the previous application, the order made does not barthe entertainment of a subsequent application. Various authoritieshave been submitted to me bearing on the matter under consideration.Mankiri v. Kirihattena x. This was a case decided by a fall bench of thisCourt as then constituted. It was there held that the dismissal of aprevious charge, whether for insufficiency of evidence or upon any otherdefect in the case, is a decision upon the merits and such decision barsa second application. In Jainambo v. Izzadeen2 Maartensz J.followed the principle enunciated in Mankiri v. Kirihattena (supra) andalso Ghinahamy v. Arnolis Harm/1 * 3. In Laisa v. Gardner4. Soertsz J. inthe course of his judgment has made the following observation :—“ There are circumstances in which an applicant may make a second orthird or later application for maintenance in respect of the same child,provided she comes into Court on every such occasion within thetwelve months. See Beebee v. Mahmood 5; Jeeris Hamy v. DavithSinno 6 ; Ana Perera v. Emiliano Nonis 7. But this case is not one ofthose cases and moreover in this case the subsequent application is notwithin the statutory twelve month period ”. This judgment of Soertsz J.has been cited here as an authority which supports the appellant’scontention. But when one reads the judgment, it is really anauthority which supports the contention of the defendant-respondent’sCounsel.
In Ana Perera v. Emaliano Nonis (supra), the facts are that an appli-cation for maintenance was struck out without any inquiry into themerits and this Court held that the applicant may make fresh applicationprovided the time limit set by section 7 has not expired. In Beebee v.Mahmood (supra) Shaw J. held that where an application made by amother was not heard on the merits, but was dismissed as she was notready with evidence and subsequently an application was made by thegrandmother the previous application was no bar to the subsequentapplication. He, in his judgment, referred to Ana Perera v. Emaliano-Nonis (supra). In Seethy v. Mudlihamy 8, the facts are these :—On theday fixed for hearing the applicant informed the Court that she had no-
1 (1891) 1 C. L. Reports 86.6 (1921)23 N. L. R.123.
1 (1938) 10 G. L. W. 138.* (1921)23 N. L. R.466.
3(1895) 3 N. L. R. 128.7 (1908)12 N. L. R.263.
4(1936) 5 C. L. W. 73.8 (1937)40 N. L. R.39.
H. A. DE SILVA J.—Pi&nchi v. Tihrri Banda
213
witnesses present to supply the necessary corroborative evidence insupport of her claim and the application was dismissed- Later theapplicant petitioned the Court alleging that she brought no witnessesas the respondent had proposed certain terms of settlement which hehad failed to fulfil. The Magistrate thereupon fixed the case for trialat which the respondent undertook to pay as maintenance such sum asthe Court thought reasonable. The Magistrate accordingly fixed thesum. Abrahams C.J. before whom the appeal came up held that theMagistrate had no power to re-open the case and he distinguished thefacts in Beebee v. Mahmood (supra) from those considered by him.Abrahams C.J. makes the following observation :—“ He then makesthe ingenious suggestion that the proceedings should be treated not asa re-opening of the case but as a fresh proceeding in maintenance andcites the case of Beebee v. Mahmood where Shaw J. held that fresh proceed-ings in maintenance could be instituted even by a party whose case hasbeen dismissed, provided that the case had not been dismissed on themerits. But the respondent’s case had been dismissed on the meritsas she admitted she had no witnesses to support her claim, not thatshe had witnesses, but had been unable to bring them on the day oftrial, whereas, in Beebee v. Mahmood (supra), it would appear that therewere witnesses, but they had not been brought. The implication inthe petition that the respondent had witnesses, but had been inducedby the appellant’s promises not to bring them ought not to be permittedto prevail over the statement in the first case that she had no witnessespresent. Had she intended to inform the Magistrate that there werewitnesses, but that she had not brought them for some reason or other,she would surely have said as much.” I have quoted the observationsof Abrahams C.J. rather at length, because his observations have alarge bearing on the facts of this case. In the earlier application, thatis M. C. Handy No. 6,416, the applicant did not say through her lawyerthat her witnesses had not come, but what she got her lawyer to tellthe Court was that she was withdrawing the case as she had not enoughevidence to maintain paternity. If I may say so, with respect, I agreewith the observations of Abrahams C.J.
I am, therefore, of opinion that the dismissal of the applicant-appellant’s application in M. C. 6,416, under the circumstances in whichthat order came to be made, operates as a bar to the present application.
The appeal is therefore dismissed.
There will be no costs of appeal.
Appeal dismissed.