033-NLR-NLR-V-77-S.-RAJASINGHE-Appellant-and-A.-A.-BANDARA-Respondnet.pdf
G. P. A. SILVA, S.P.J.—Rajasinghe v. Bandara
176
1973Present: G. P. A. Silva, S.P.J.
S. RAJASINGHE, Appellant, and A. A. BANDARA, RespondentS. C. 474/70—M. C. Kandy, 594S9
Jurisdiction—Application for maintenance—Right of applicant to makesuch application before a Magistrate’s Court anywhere—Main-tenance Ordinance (Cap. 91), s. 11.
The Maintenance Ordinance leaves it open to an applicant tofile an application for maintenance before any Magistrate’s Court.There is no obligation on the applicant to go to a Court where thedefendant resides or where the cause of action arose.
Appeal from an order of the Magistrate’s Court, Kandy.
D. Guruswamy, for the applicant-appellant.
No appearance for the defendant-respondent.
March 1, 1973. G. P. A. Silva, S.P.J.—
This is an appeal from an order made by the Magistrate in amaintenance case holding that he had no jurisdiction to hear anddetermine this case as the applicant resided in a place withinthe exclusive jurisdiction of the Magistrate’s Court of Panwila,whereas this application was filed before the Magistrate’s Courtof Kandy. The circumstances in which he came to make thisorder were these : —The applicant-appellant filed the applicationfor maintenance against the defendant-respondent in the Magis-trate’s Court of Kandy, on 16th June, 1968 claiming maintenancefor herself and her five children. The defendant on 21.8.68admitted the paternity of the first three children and deniedpaternity of the last two children alleging adultery against theapplicant. No objection was taken to the jurisdiction of the Courtand the Magistrate ordered him to pay maintenance for thechildren whose paternity he admitted. After several postpone-ments the inquiry in respect of the application for maintenancefor the other two children was taken up on 28.6.69 and somesubsequent dates and the entirety of the evidence of the defen-dant was concluded as the burden of proof was on him in thiscase. Thereafter the applicant gave evidence and was fully cross-examined. At this stage when the case was presumably closedthe proctor for the respondent stated that the Court hadno jurisdiction to entertain the application and to hear the caseas the cause of action, namely, the failure to maintain the
176G. P. A. SILVA, S.P.J.—Rajasinghe v. Bandara
children and the residence of both parties arose outside thejurisdiction of the Magistrate’s Court of Kandy. The learnedMagistrate allowed a date for the argument of this matter andon that date ruled in favour of the defendant on the question ofjurisdiction raised by him. .
. It seems to me that the learned Magistrate was in error in soholding. The Maintenance Ordinance is silent in regard to thequestion of jurisdiction for filing an application and any Magis-trate will have jurisdiction to entertain and inquire into anapplication filed before him. It may be for very good reason thatthe Ordinance left it open to an applicant to file an applicationbefore any Magistrate. For, a party filing an application formaintenance will, apart from other reasons, be ordinarily insomewhat straitened circumstances and it might well have beenthe intention of the legislature not to impose on such a partythe obligation to go to a Court where the defendant resided orwhere the cause of action arose which might entail heavy expen-diture to the applicant. Section 11 of the Maintenance Ordinancealso appears to give strength to the conclusion that the appli-cation for maintenance can be filed before any Magistrate, butinsofar as the enforcement is concerned, only the Magistratewithin whose jurisdiction the person against whom an order formaintenance is made is found, is empowered to issue a warrantand if necessary to pass a sentence in terms of Section 8.
Counsel for the appellant has referred me to two decisions otthis Court one of which was by a Divisional Bench, namely 63
N.L.R. page 544, which would appear to confirm the view thatan application for maintenance could be brought before anyMagistrate’s Court. In the circumstances I hold that the Magis-trate was in error in deciding in favour of the objection to juris-diction, even if the decision was based on the provisions of theMaintenance Ordinance alone. But that is not all. Section 71 ofthe Courts Ordinance states :
“Whenever any defendant or accused party shall havepleaded in any cause, suit, or action, or in any prosecutionbrought in any District Court, without pleading to the juris-diction of such District Court, neither party shall be after-wards entitled to object to the jurisdiction of such court,but such court shall be taken and held to have jurisdictionover such cause, suit, action, or prosecution: ”
Although it does not cover the jurisdiction in regard to a caseinstituted in a Magistrate Court, the principle embodied in thissection is that if an objection is to be raised to the jurisdictionof a Court, particularly, local jurisdiction, it has to be raised atthe commencement of a trial and not thereafter. The proceedings
Joseph v. Sivasubramaniam
177
in the present application show that the defendant waived anyobjection to jurisdiction which he may have taken andacquiesced in the application being dealt with in the Magistrate’sCourt in which it was brought. As a matter of fact he consentedto an order made by the Magistrate for the payment of mainten-ance to three children and the application was proceeded withonly in respect of the other two children whose paternity wasdenied by the defendant. It is therefore clear that th6 objectionto jurisdiction was taken as a last resort at an inappropriatestage, after having first accepted the jurisdiction of a Magistrate’sCourt before which the application was made.
For the above reasons, I set aside the order of the Magistrateand as no order has been made in regard to the facts of the case,there is no alternative but to send the case back for a finding onthe facts as disclosed in the evidence. All the evidence had beenled before the Magistrate who made the order complained ofand, as I am informed by counsel from the bar that this Magis-trate is no longer functioning in the Magistrate’s Court, Kandy,I make order that the case be heard afresh on the basis that theMagistrate’s Court, Kandy has jurisdiction to entertain theapplication made by the applicant. The present Magistrate willno doubt give high priority to this case, considering the factthat it has been filed as far back as June, 1968, and hear and"determine the case as early as possible.
Order set aside.