039-SLLR-SLLR-1995-2-SAMIL-DE-SILVA-V.-GRACE-DE-SILVA.pdf
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Samili De Silva v. Grace de Silva
195
SAMILI DE SILVA
v.
GRACE DE SILVA
COURT OF APPEAL.
W. N. D. PERERA, J.
EDUSSURIYA, J.
DR. ANANDA GRERO, J.
M. C. BALAPITIYA 21933.
C.A. 5/91 (M)
NOVEMBER 29, AND DECEMBER 6, 1993.
Maintenance Ordinance – Amendment 19 of 1972 S. 12, S. 13, S. 14 -Application for Maintenance – Signed by an Attorney-at-Law – Appeal – Revision- Patent lack of jurisdiction – S. 41(2), S. 46(2) Judicature Act – S. 31 (B) ofIndustrial Disputes Act – Regulations 15, 17 Mandatory-Directory.
The learned Magistrate on 1.4.91 ordered that a sum of Rs. 350/- be paid to theRespondent wife and the child. Against this order the Appellant lodged anappeal.
The Respondent's Counsel raised a preliminary objection that the appeal was outof time. The appellant’s Counsel thereafter moved Court to act in Revision as theApplication for Maintenance in the Magistrates Court had been signed by anAttorney-at-Law which rendered all proceedings a nullity. This matter was referredto a Bench of 3 Judges to decide the following questions of law –
Whether the Respondent-Appellant is entitled to move the Court ofAppeal to exercise its Revisionary jurisdiction; on the ground that thereis a patent lack of jurisdiction, as the application has not been made interms of S. 13 of the Maintenance Ordinance. 2 3
(2)Whether an application signed by an Attorney-at-Law for the applicantis sufficient compliance of S. 13 of the Maintenance Ordinance.
(3)Whether the application falls within the ambit of S. 13.
Held:
Dr. Ananda Grero (dissenting).
S. 14 of the Maintenance Ordinance requires an application to be supportedby an affidavit, which the applicant had rendered.
This affidavit contains an application for Maintenance apart from the othermaterial that is required to be affirmed to by way of affidavit for the purpose ofissuing summons.
Therefore the application for Maintenance satisfies the requirement in
S.13, that an application should be signed by the applicant even if S. 13 ismandatory. In view of above there is no illegality which renders the subsequentproceedings a nullity. There is no cause to act in Revision.
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[1995] 2 Sri LR.
S. 41(1) of the Judicature Act entitles an Attorney-at-Law to assist, adviseclients and to appear, plead or act in every court or other institution establishedfor the administration of justice.
S. 13 is only an enabling section, which authorise an applicant to applyfor maintenance, but it does not prohibit an Attorney-at-Law from signingand presenting an application on behalf of a person applying for maintenance.
S. 13 is not mandatory and there is no illegality or irregularity in anapplication signed by an Attorney-at-Law being presented to court underS. 13.
APPLICATION in Revision of the Order of the Magistrates Court of Balapitiya.Cases referred to:
Chandradasa Gunatilake v. H. M. Punchi Menika C.A. 941/78 – C.A. Minutes19 2 1981
C.A. 916/89 C.A. Minutes 22.12.1990.
C.A. 114/89- C.A. Minutes8.5.1992.
ONE v. J. M. Jayasundera- S.C. Appeal 45/86 S.C. Minutes 25.11.1988.
Ranesinghe v. Henry 1 NLR 303.
Rystomp v, Haoanaama & Co.. 1978-79 Si l R Vni 2 Parts 8 at 225.
7 7. Baby Nona v. Kahingala 66 NLR Pge. 367.
Rohan Sahabandu for Respondent-Appellant.
Percy Wickramasekera with Champani Padmasekera and P. Jesudasan forApplicant-Respondent.
Cur. adv. vult.
January 12,1994.
EDUSSURIYA, J.
The appellant in this case filed an appeal from the order of thelearned Magistrate ordering him to pay maintenance for his wife andchild.
When the appeal was taken up for hearing it was found that theappeal was out of time and at that stage the appellant's counselinvited Court to exercise its revisionary powers and set aside theorder of the learned Magistrate on the ground that the application formaintenance had been signed by an Attorney-at-Law and not theapplicant, which according to counsel's contention rendered allproceedings a nullity. Thereupon this case was referred to a Bench ofthree Judges.
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Samili De Silva v. Grace de Silva (Edussuriya, J.)
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Counsel for the appellant contended that proceedings commenceon an application signed by an applicant being presented to Courtand in the absence of such an application signed by the applicant,all proceedings taken thereafter were a nullity since there was novalid application before Court.
Counsel for the appellant drew our attention to the decision inC. A. 941/78™ and C. A. 916/89™
In the former case a bench of Two judges of this Court held that anapplication signed by an attorney-at-law does not conform to therequirement of S.13 which expressly states that it shall be signedby the applicant, because unlike in the District Courts the questionor proxy does not arise and these being proceedings in the natureof criminal proceedings where the law requires an application to befiled in a particular manner, it is necessary that there should becompliance with that requirement.
In the C. A. Application No. 916/89 – (supra) which was anapplication in Revision, Justice S. N. Silva held that he was bound bythe decision in C.A. 941/78 (Supra) which held that the requirementas contained in S. 13 that an application for Maintenance should besigned by the applicant is mandatory and set aside the order of theLearned Magistrate.
In the case before us the affidavit that has been filed along withthe application contains an application for maintenance apart fromthe other material that is required to be affirmed to by way of affidavitfor the purpose of issuing summons. It is therefore our consideredview that the application for maintenance contained therein satisfiesthe requirement in S.13 that an application should be signed by theapplicant, even if S.13 is considered to be mandatory.
Although, there was an affidavit signed by the applicant filed inC.A. 941/18 (Supra) the question whether an application formaintenance in the affidavit itself satisfies the requirement in S. 13does not appear to have been considered in that case. It is also notknown whether there was such an application in the affidavit.
In C. A. Application 916/89 (Supra) no affidavit had been filed.
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[1995] 2 Sri LR.
In view of what we have stated above there is no illegality whichrenders the subsequent proceedings in the case before us a nullity.We see no cause to act in revision and also reject the appeal which isout of time.
However I will now proceed to consider whether S. 13 ismandatory and the decisions in C. A. 941/78 and C. A. 916/89(Supra), which held that an application for maintenance signed by anattorney-at-law does not conform to the requirement of S. 13.
Counsel for the appellant contended that proceedings commenceon an application signed by the applicant being presented to Courtand in the absence of such an application all proceedings takenthereafter were a nullity.
In this connection the counsel for the respondent submitted thatthe effect of S. 41(2) of the Judicature Act had not been consideredin the decisions in C.A. 941/78, C.A.916/89 (supra) and C.A. 114/89<3)and drew our attention to the judgment in the Board of Directors,C. W. E. v. J. M. Jayasundera (4) which held that S. 31B (i) of theIndustrial Disputes Act which sets out that a workman or a TradeUnion on behalf of a workman who is a member of that Union maymake an application in writing for relief or redress, read withRegulations 15 and 17 requiring that every application under S. 31Bof the Industrial Disputes Act shall be substantially in Form D set outin the first schedule which provided for the applicant or the Presidentof the Union to which the workman belonged to sign it was notmandatory, in so far as S. 31B is an enabling section. It was also heldthat under S. 41(2) of the Judicature Act an attorney-at-law was notprohibited from signing such an application.
The counsel for the appellant in this case seeking to draw adistinction between the words in S. 31B of the Industrial Disputes Actwhich sets out that a workman or a trade union on behalf of aworkman who is a member of that Union may make an applicationand the words in S.13 of the Maintenance Ordinance which sets outthat every application for an order of maintenance shall be in writingand shall be signed by the applicant submitted that S.13 of the
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Samili De Silva v. Grace de Silva (Edussuriya, J.)
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Maintenance Ordinance prohibits anyone other than the applicantherself from signing an application.
It must be noted that S.31B of the Industrial Disputes Act read withRegulations 15 and 17 which require that an application under S.31Bshall be substantially in Form D set out in the first schedule providefor the applicant or the President of the Union to sign it. So that takentogether the "wording” in S. 31B and Regulations 15 and 17 is similarto S. 13 of the Maintenance Ordinance.
In fact the contention in that case was that, since Form D in theIndustrial Disputes Act had provision for the signature of theapplicant, that it was mandatory that the application be signed by theapplicant.
Justice Athukorale with the other two Judges agreeing held thatsection 31B of the Industrial Disputes Act read with Regulations 15and 17 and Form D was not couched in prohibitory terms and thatthere is nothing exfacie in the section itself to preclude a lawyer frommaking an application on behalf of an applicant and further that inconstruing section 31B read with Regulations 15 and 17 and Form D,the effect of S. 46(2) of the Industrial Disputes Act which provides foran Attorney-at-Law to appear on behalf of any party to suchproceedings and S.41(1) of the Judicature Act must be considered.Justice Athukorale went on to express the view that the words “In anyproceeding under this Act” in S. 46(2) include the filing of anapplication since a proceeding commences at the moment of thefilling of the application and therefore there is no logical reason fordepriving an applicant who is a workman the right of appearancethrough a lawyer at only the initial stage, which perhaps is the mostvital stage in an application under S.31B of the Industrial DisputesAct. Justice Athukorale went on to state that the question of a lawyerpresenting an application on behalf of an applicant has been putbeyond any manner of doubt by virtue of the provisions of S. 41(1) ofthe Judicature Act, which entitles an attorney-at-law to assist, adviseclients and to appear, plead or act in every Court or other institutionestablished for the administration of Justice.
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[1995] 2 Sri L.R.
Section 12 of the Maintenance Ordinance sets out that a Personapplying for an order of maintenance may appear personally orby pleader, which must certainly include without any manner ofdoubt the act of applying for maintenance itself.
As Justice Athukorale has stated in the course of his judgment inthe Board of Directors of the C.W.E. v. J. M. Jayasundera (supra) aproceeding commences at the moment of filling an application, andtherefore there is no logical reason for depriving an applicant who isa workman the right of appearance through a lawyer at only the initialstage, which perhaps is the most vital stage.
of the Maintenance Ordinance requires an application to besupported by an affidavit stating the fact in support of the applicationand it is only if the Court is satisfied that the facts set out in theaffidavit are sufficient that summons shall issue on the defendant. Sothat the issue of summons depends entirely on the material containedin the accompanying affidavit of the applicant. This certainly requiresthe advise of an attorney-at-law for example with regard to S. 6 etc.
Then, can there be any logical reason for depriving an applicantwho in a maintenance case is either making an application formaintenance for herself and her child or her illegitimate child, beingdeprived of applying for maintenance through an attorney-at-law? Wetherefore, hold that S.12 empowers an attorney-at-law to make anapplication signed by him on behalf of an applicant.
Further, without any doubt an application for maintenance is apleading and S.41(1) of the Judicature Act provides that everyattorney-at-law shall be entitled to assist and advise clients and toappear, plead or act in every Court established for the administrationof Justice.
Therefore, we hold that S.13 is only an enabling section, whichauthorises an applicant to apply for maintenance but that it does notprohibit attorneys-at-law from signing and presenting an applicationon behalf of a person applying for maintenance especially in the lightof S. 41(1) of the Judicature Act.
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Samili De Silva v. Grace de Siiva (Edussuriya, J.)
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Further, it is our view that S. 13 has been enacted with the intentionof enabling an applicant to (without the assistance of an attorney-at-law) make an application without incurring expenses by presentingthe application through an attorney-at-law. It is for this reason that anapplication is exempted from stamp duty too.
For the above mentioned reasons we are of the view that S. 13 ofthe Maintenance Ordinance is not mandatory and that there is noillegality or irregularity in an application signed by an attorney-at-lawbeing presented to Court under S. 13.
W. N. D. PERERA, J. -1 agree.
Appeal is rejected with costs.
Application to act in Revision refused.
ANANDA GRERO, J. (Dissenting)
At the conclusion of the hearing in the above mentioned case, Idecided to write a separate order. The President of the Court ofAppeal referred to a Divisional Bench comprising of three Judges ofthe Court of Appeal (one of whom is myself, and the other two are,Hon. W. N. D. Perera, J. and Hon. P. Edussuriya, J.) to decide thefollowing questions of law.
Whether the respondent-appellant who did not make anapplication for Revision is entitled at this stage (at the hearing of theappeal) to make a request to this Court, to exercise its revisionaryjurisdiction in order to review and set aside the order of the LearnedMagistrate dated 4.1.91, on the ground that on the face of the record,there is a patent lack of jurisdiction for the Magistrate’s Court toinquire into the application of the applicant-respondent as the saidapplication has not been made in terms of Section 13 of theMaintenance Ordinance.
Whether an application signed by the Attorney-at-Law for theapplicant is sufficient compliance with the provisions of the saidSection 13, and what exact interpretation should be given to the saidSection.
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[1995] 2 Sri LR.
Whether the application of the applicant-respondent fallswithin the ambit of section 13 of the Maintenance Ordinance.
The Learned Magistrate of Balapitiya by his order dated 1.4.91held that the applicant-respondent is the wife of the respondent-appellant and he too is also the father of the child by the nameSaman Deshapriya. As he failed and neglected to maintain them, hehad ordered him to pay Rs. 350/- for each of them as maintenancefor a month from the date of the application.
Against the aforesaid order, an appeal was made to this Court bythe respondent-appellant. At the commencement of hearing of theappeal, the Learned Counsel for the applicant-respondent raised apreliminary objection that the appeal is out of time and it shouldtherefore be dismissed without going into the merits of the appeal. Atthat stage the Learned Counsel for the respondent-appellant invitedthe Court to exercise its revisionary powers in order to review and setaside the Magistrate’s order on the basis of issue No. 1 stated above.
After hearing the submissions made by both counsel for andagainst the application made by the counsel for the respondent-appellant, the Court decided to formulate the questions of law withthe assistance of both counsel in order to get a ruling from aDivisional Bench, as conflicting decisions of both the Supreme Courtand the Court of Appeal were cited by them before me. The resultwas, that this matter finally came up before three of us.
The Learned Counsel for the respondent-appellant contended thatthe applicant-respondent has not complied with the mandatoryprovisions of Section 13 of the Maintenance Ordinance (as amendedby Maintenance (Amendment) Act No. 19 of 1972) and thereforethere was no proper application before the Learned Magistrate to actupon her application. But the Learned Magistrate has acted on suchapplication and made an order, which he says is without jurisdiction.He further contended that when there is patent lack of jurisdiction toentertain and inquire into the application in question by theMagistrate, this court .has the powers of Revision to review and setaside such an order if the Court is satisfied that the original Courtacted without jurisdiction.
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To support his contention he cited, a number of authoritiesRanesinghe v. Henry et al{S Rustom v. Hapangama & Co.(6)
The Learned Counsel for applicant-respondent contended thatthere was a proper application before the learned Magistrate andtherefore there was no question of any lack of jurisdiction for him toentertain and inquire into such application and finally to make anappropriate order.
It is common ground that the application in question is signed bythe Attorney-at-Law of the applicant-respondent. She has not signedit. The affidavit is signed by the applicant-respondent.
It is the contention of the Learned Counsel for the respondent-appellant that in view of the provisions of Section 13 of theMaintenance (Amendment) Act No. 19 of 1972 the application shouldbe signed by the applicant herself and not by her Attorney-at-Law.He cited the judgment of Abdul Cader J. and Athukorale, J. in theCase of Chandradasa Gunatillake v. H. M. Punchi Menika, C.A. CaseNo. 941/78 (supra), where it was held that an application signed byan Attorney-at-Law (in a maintenance case) does not conform to therequirement of Section 13 which expressly states that it shall besigned by the applicant. He also cited a case decided by S. N. Silva,
J., where he followed the above stated decision (Gunatillake v.Punchi Menika) and held that an application in a maintenance caseshall be signed by the applicant. (Vide C.A. Application No. 916/86,(supra). Apart from the aforesaid decisions, he also cited a casedecided by me (C.A. Application No. 114/89 (Supra), where Ifollowed the said two decisions and held that an application whichhas not been signed by the applicant is not a valid one as such anapplication is made contrary to the provisions of Section 13 of theAct.
The Learned Counsel for the applicant-respondent relied heavilyon the judgment of the Supreme Court, in the case of The Board ofDirectors of the C.W.E. v. J. M. Jayasundera (Supra).
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Based on this judgment the learned Counsel for the applicant-respondent contended that the word “shall" in section 13 of theMaintenance Ordinance is directory and not mandatory. In otherwords Section 13 is only an enabling section.
In the aforementioned case Atukorale, J. considered Section 31B(1) of the Industrial Disputes Act along with Regulation 15 made bythe Minister under the provisions of the said Act. Having consideredso he held as follows:
“Section 31B (1) is itself only an enabling section. It onlyempowers an applicant (whether he be a workman or a trade unionon his behalf) to make an application in respect of certain specifiedmatters. It is a permissive section. It does not, by itself or read inconjunction with 15 and 17 Form D, seek to prohibit other persons(including lawyers) from making applications on behalf of anapplicant” (vide page 7 of the judgment).
A careful examination of Section 31B (1) of the Industrial DisputesAct reveals, that it is worded or constructed in such a manner that itfalls into the category of a permissive section. But it is not so in thecase of Section 13 of the Maintenance (Amendment) Act, No. 19 of1972. It is as follows:
“Every application for an order of maintenance or to enforce suchan order shall be in writing an shall be signed by the applicant andshall be free of any stamp duty. Every summons to a defendant orwitness shall also be free of stamp duty".
The manner in which the aforesaid section is worded orconstructed shows, that its provisions are “mandatory” andnot “directory”. It has the effect of a command to do certainthings in a way prescribed by the section itself. It is not justa permissive section. Every step contemplated in thissection should be taken strictly according to the prescribedmanner.
Athukorale, J. had no opportunity to compare and contrast section31B (1) of the Industrial Disputes Act with Section 13 of the
Samili De Silva v. Grace de Silva (Ananda Grero, J.)
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Maintenance Ordinance. In the case of Chandradasa Gunatillake v.
M. Punchi Menika (Supra) he agreed with the decision of AbdulCader, J. when he held that an application signed by an Attorney-at-Law does not conform to the requirement of Section 13 whichexpressly states that it shall be signed by the applicant. If Athukorale,J. took a different view he would have stated so. On the contrary heagreed with Justice Abdul Cader's judgment.
Athukorale, J. in his judgment in the case of the Board of DirectorsC. W. £, v. Jayasundera (Supra) expressed the view that wherenegative or prohibitory terms are couched in a section then it is onlythe applicant himself who could make the application and no oneelse.
I am of the view that the wording of Section 13 of the MaintenanceOrdinance is such, that it prohibits any other person to sign anapplication made under it, other than the applicant. The applicantconcerned is the wife of a husband who has failed and neglected tomaintain her, or the mother of a legitimate or an illegitimate child.Such applicant has to sign the application and it is mandatory.
If the intention of the legislature, was, to allow an Attorney-at-Lawto sign such an application on her behalf then it would have stated soin the section itself. As stated earlier the word used in the section is“shall”. In the case of Baby Nona v. Kahingala m Basnayake, C.J.dealing with the word “shall” used in a statute observed as follows:
“The word “shall” is imperative and whenever a statute declaresthat a thing “shall” be done, the natural and proper meaning is that aperemptory mandate is enjoined unless, that context contains clearwords which indicate that direction is not compulsory butdiscretionary”.
In the aforesaid circumstances I am of the view that the words“shall be signed by the applicant” in Section 13 of the Act are
compulsory or mandatory and it is only the applicant and nobodyelse who could sign an application made under the said section AnAttorney-at-Law is not empowered to sign an application formaintenance on behalf of the applicant.
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In the instant case the application is in writing, but not signed bythe applicant-respondent. Such an application has been entertainedand inquired into by the learned Magistrate. Unless an applicationconforms to the strict provisions of Section 13, and Section 14 of theAct, it cannot be held, that there is a proper application before Courtto proceed with it and to make an appropriate order for maintenance.It is the proper and valid application made in conformity with theprovisions of sections 13 and 14 of the Maintenance (Amendment)Act, No. 19 of 1972 read with Section 2 of the MaintenanceOrdinance that confer the jurisdiction on a Magistrate to entertain andinquire into such application and make an order.
It is crystal clear that the application made in this case is contraryto the provisions of section 13 of the Act. It does not fall within theambit of Section 13 of the Act.
Thus it is noticeable, that there is a patent lack of jurisdiction forthe Magistrate to entertain the application in question and to inquireinto it. In such circumstances this Court has the power by way ofRevision to review and set aside the order made by the learnedMagistrate although the respondent-appellant did not come to thisCourt by way of an application for Revision. When it is brought to thenotice of this Court (as in this case) that the learned Magistrate hadacted without a proper application before him, then too this Court hasthe power to act in Revision and to make an appropriate order.
For the above said reasons I am unable to agree with thesubmissions of the Learned Counsel for the applicant-respondentthat there was a proper application before the learned Magistrate toact upon it.
It was contended that the affidavit filed by the applicant-respondent in this case satisfies the provisions of both Sections 13and 14 of the Act. In other words, the affidavit satisfies therequirement of Section 13 and 14 of the Maintenance Act, I amunable to agree with this contention.
An examination of Sections 13 and 14 of the aforesaid Act clearlyreveals that there shall be two documents namely the application ascontemplated in Section 13, and in affidavit as stated in Section 14 ofthe Act.
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If the intention of the legislature was to couch both the applicationand the affidavit in one document namely, the affidavit it would haveclearly stated so in the Act. But it wanted an application supportedby an affidavit. Section 14(1) states:
“Every application for an order of maintenance or to enforce anorder of maintenance shall be supported by an affidavit stating thefacts in support of the application …”
The construction of the two sections (S. 13 and 14) is such that it isdifficult to agree that both the application and the affidavit can becouched in the affidavit. When the provisions of these two sectionsare mandatory they should be strictly followed. One is not entitled todeviate from such mandatory provisions of these two sections. In thecircumstances, I am of the view, that the affidavit filed in this casedoes not comply the provisions of Section 13 of the Act.
In the aforesaid circumstances, I am of the view that theapplication in this case has been filed contrary to the relevant law.The result is, that this Court is empowered to act in Revision and setaside all the proceedings taken after filing the application and also toset aside the order for maintenance made in favour of the applicant-respondent and her child. Thus acting in Revision I set aside all suchproceedings and the order of maintenance in this case, but her rightto make a fresh application if she so desires is reserved hereby. Imake no order for costs.
Acting in Revision; Order set aside.
By Majority decision appeal rejected.
Note by Editor:
‘Special Leave to Appeal to the Supreme Court was refused by theSupreme Court in S.C. SP. LA 57/94'.