039-SLLR-SLLR-2006-V-2-RANJITH-vs.-PIYASEELI.pdf

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application for maintenance for an illegitimate child, and fixed the matterfor inquiry.
The question that arises is whether the two earlier applications weredecided on their merits. It is obvious that the Court of Appeal has dismissedthe first application bearing No. 75299/89 mainly on the ground that therespondent had not signed the application and therefore the Court of Appealhad not considered the application on its merits. With regard to the secondapplication bearing No. 97673/91, the learned Magistrate had not decidedthe application on its merits but dismissed the application on the groundthat it had not been made within 12 months of the birth of the child and/orthat the respondent had failed to establish that the appellant had maintainedthe child at any time within 12 months after the birth of that child in termsof section 6 of the old Maintenance Ordinance. In making this order thelearned Magistrate has commented on the contradictory nature of thestatements with regard to dates in the first application and in the secondapplication as to the period of cohabitation between the respondent andthe appellant and the second application has not been made within 12months from the birth of the child or that the respondent had failed toestablish that the appellant had maintained the child at any time within 12months after the birth of that child. Apart from this, there had been noinquiry and the Court had not called upon the parties to lead evidence.Before reaching that stage the Court had decided the application on apreliminary point raised by the appellant. In these circumstances I am ofthe view that the Court had not decided the maintenance application bearingNo. 97673/91 on its merits.
Accordingly, the two previous maintenance applications filed by theappellant were not decided on the merits. To constitute a judicial decisiona res judicata, the decision must be on the merits. It must be a finaldecision on the merits. As regards decision on merits, Spencer Bower inthe “Doctrine of Res Judicata” 3rd edition at page 173, quotes from LordBrandon (1985) 1 W. L. R. 490(1> (House of Lords) at 499.
“a decision on procedure'alone is not a decision on the merits.
Looking at the matter positively a decision on the merits is a decisionwhich establishes certain facts as proved or not in dispute, states whatare the relevant principles of law applicable to such facts, and expressesa conclusion with regard to the effect of applying those principles to thefactual situation concerned”.
It appears that a decision on issues in a case rather than on proceduralgrounds is a decision on the merits.
None of the two previous maintenance applications filed by therespondent were decided on the merits. It is to be observed that there wasno adjudication in the two previous maintenance applications. The
CA
Ranjith Vs. Piyaseeli (Wimalachanara, j.j
dismissal of the two applications on technical grounds cannot be regardedas res-judicata. Moreover, in the two previous maintenance applicationsthere were no judgments in the sense contemplated in section 184 of theCivil Procedure Code. Therefore the dismissal of the two applications donot operate as res-judicata.
The provisions in section 34,207 and 406 of the Civil Procedure Codeembrace the principles of res-judicata. It is to be noted that the procedureadopted with regard to applications under the Maintenance Ordinance(now under the Maintenance Act, No. 33 of 1999) is not according to theprovisions of the Civil Procedure Code. Shiranee Ponnambalam in Lawand Marriage Relationship in Sri Lanka” 1982 publication, at page 274states as follows:
“It has been held in Anura Perera Vs. Emaliano Nonis (2) it is notpossible to introduce provisions of the Criminal Procedure Code otherthan those expressly mentioned. By a parity of reasoning it would followthat it is not permissible to introduce provisions of the Civil ProcedureCode other than those made applicable by the Ordinance.”
Basnayake, C. J. in the case of Herath Vs. Attorney-General(3) heldthat the whole of our law of res-judicata is to be found in sections 34,207and 406 of the Civil Procedure Code.
Basnayake, C. J. observed that in our law the subject of res-judicataappertains to the province of Civil Procedure properly so called. His Lordshipconsidered the previous judgments of the Supreme Court on this questionand specifically made reference to the case of Samichi vs. Pieris® whichwas heard by a bench of three judges where two of the judges refused touphold the contention that the whole of our law of res-judicata is to befound in sections 34, 207 and 407 of the Civil Procedure Code. Thedissenting judge, Pereira, J. took the view that our law of res-judicata is inthe Civil Procedure Code and that we cannot go outside it.
Basnayake, C. J. commenting on the decision in Samichi vs. Pieris(supra) made the following observations (at 219):
“With the greatest respect to the two most eminent judges who formedthe majority I find myself unable to agree that theirs is the proper approachto the interpretation of a Code. The principles of interpretation applicableto a Code are stated in the case of Bank of England v. Vagliano Brothers.®In that case Lord Halsbury stated at 120 :1 am wholly unable to adopt theview that where a statute is expressly said to codify the law, you are atliberty to go outside the Code so created, because before the existenceof that Code another law prevailed.”
Accordingly, the provisions in sections 34,207 and 406 which embodythe doctrine of res-judicata, will not apply to maintenance proceedings.
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In any event, the Maintenance Act does not contemplate “decrees". Itdeals with orders. Therefore an order made under the Maintenance Act isnot a “decree” that comes within the expression all decrees in section 207of the Civil Procedure Code. Unlike in section 188 of the Civil ProcedureCode, the Maintenance Act does not provide that after the judgment ispronounced a decree be drawn up by the Court.
Basnayake, C. J. in Herath Vs. Attorney-General {supra) after anexhaustive analysis of section 207 held that this section will apply only toa decree after there had been an adjudication on the merits of a suit.
In the circumstances, it appears that an order made under theMaintenance Act does not come within the meaning of “decree” ascontemplated in section 206 of the Civil Procedure Code.
For these reasons, I see no reason to interfere with the order made bythe learned Magistrate on 21.03.2001 and the order made by the learnedHigh Court Judge dated 22.01.2002. The objections raised by the appellantare over-ruled and the proceedings will be remitted to the Magistrate’sCourt of Kegalle for the learned Magistrate to proceed with the inquiry withregard to the application bearing No. 5473/Maintenance made by therespondent. The respondent will be entitled to the costs of this appeal andalso the costs of the appeal in the High Court. The appeal is dismissedwith costs.
ANDREW SOMAWANSA, J. (P/CA) — / agree.
Appeal dismissed.
Editor’s note: The Supreme Court in SC Spl. L. A. 73/2006 on 27.10.2006refused Special leave to the Supreme Court.