061-NLR-NLR-V-37-SAMYNATHAN-v.-REGISTRAR—GENERAL.pdf
Samynathan v. Registrar-General.
28b
1936
Present: Dalton S.P.J., Akbar and Poyser JJ.
SAMYNATHAN v. REGISTRAR-GENERAL.
9—D. C. (Inty.) Colombo, 1,951.
Registration of Births and Deaths—Rectification of entry—Application toDistrict Court—Power of Court to award costs—Civil Procedure Code,Chapter XXIV.—Births and Deaths Registration Ordinance, No. 1 of1895, s. 22.
In an application for the rectification of an entry in a register of birthsunder section 22 of the Births and Deaths Registration Ordinance, theCourt has power to grant costs.
The application is governed by the summary procedure provided byChapter XXTV. of the Civil Procedure Code.
An. appeal from an order in proceedings under the section should beheard by one Judge. A disputed question of paternity should not bedecided in a summary way under the section.
HIS was an application to revise an order for costs made by the
-L District Court in proceedings under section 22 of the Births andDeaths Registration Ordinance to rectify an entry in the register of births.The application to the District Court was originally made by one VeluSamynathan to have his name entered as the father of an illegitimatechild. After his death the present applicant was substituted. Therespondents opposed the application on the ground that it was not madeby Samynathan and that he was not the father of the child. The learnedDistrict Judge held that Samynathan was the father of the child but thatthe application had not been made by him. In dismissing the applicationhe directed the substituted petitioner, the present applicant to pay the costsof the inquiry. From this decision the present applicant appealedand the appeal was dismissed on a preliminary objection. Thereuponthe applicant moved the Supreme Court to revise the order for costs madeagainst him by the District Court.
H. V. Perera (with him M. T. de S. Ameresekera and C. R. de Silva), forpetitioner.—The District Court has no power to award costs in view ofthe fact that section 22 of Ordinance No. 1 of 1895 is silent with regardto costs. Proceedings under this section are not governed by the CivilProcedure Code. Where costs are to be granted in analogous cases thelegislature has expressly so provided in the Ordinance itself.
The remedy by way of revision is open to the petitioner. This is notan effort to cause the Supreme Court to set aside its own decree, as theappeal in this case was not dismissed but only rejected. The appeal wasnot heard on its merits. The Supreme Court simply refused to entertainthe appeal as the civil appellate rules had not been complied with. Thedecree of the Supreme Court has been drawn up wrongly. The decree ofthe District Court still stands as originally made and there is no decree ofthe Supreme Court into which it can be said to have merged.
Although a remedy by way of appeal was available, the Supreme Courtwill not refuse to exercise its powers of revision in appropriate circum-stances. The circumstances of this case are such that the Supreme Courtwould exercise its powers of revision.
T
290
DALTON S.P.J.—Samynathan v. Registrar-General.
N. Nadarajah (with him J. R. Jayewardene and Panditha Goonewardene),for respondent.—Even if the Court had no power to award costs, the mat-ter cannot now be canvassed by way of revision. The Supreme Courtdismissed the appeal and affirmed the judgment of the District Court.
It is too late now to apply to this Court by way of revision. After theAppeal Court decision has passed the seal of the Court, the District Courtdecree is merged in the Appeal Court decree. The petitioner is thereforeseeking to set aside an order of the Appeal Court. See Rikhawdas et ol. v.Gujor et al.' and Deonis v. SamarasingheThe Supreme Court will notnow consider the application in revision (Mudalihamy v. Ran Menika3).
The District Court had the power to award costs. This was an appli-cation by way of summary procedure under the Civil Procedure Code.The Court was asked to interfere and give relief. As such, the provisionsof the Civil Procedure Code would apply and the Court has the power togive costs under section 209. A Court has inherent power to give costswhen it has been set in motion wrongly. See Pringle v. Secretary of Statefor India
January 30, 1936. Dalton S.P.J.—
This application arises out of a proceeding in the District Court, madeunder the provisions of section 22 of the Births and Deaths RegistrationOrdinance, No. 1 of 1895.
One Velu Samynathan is alleged to have petitioned the District Courtfor a direction on the Registrar-General to rectify an entry in the regis-tration of the birth of an illegitimate child, called Girlie, by the insertionof his name as the father of the child. After the petition was filed, beforeany further action was taken thereon, Velu Samynathan died, and hisbrother Velu Suntheralingam Samynathan, the present applicant, wassubstituted as petitioner in his place.
The two respondents to the present application are the sister of thepetitioner and her husband. They applied to the lower Court and wereallowed to intervene, opposing the application, taking up the positionthat their brother was not the father of the child, and that the originalpetition had not been signed by Velu Samynathan at all.
There was a very lengthy inquiry lasting over twenty days, with avolume of evidence, in fact a formal trial, in the lower Court on the issuesraised, going, in my opinion, far beyond anything contemplated by theOrdinance under which the proceedings were taken, resulting in theapplication being dismissed, the Judge holding that Velu Samynathanwas the father of the child, but that he had not signed the petition to theCourt, and that he had in fact made no application to the Ccurr. Heheld further that the original petition had been signed by Velu Sunthera-lingam Samynathan, the substituted petitioner and the present applicant.In dismissing the application he directed that the substituted petitionerdo pay to the respondents the costs of the inquiry.
1 18 Bombay 203.s 4 T. L. R. (Ceylon) 183.
* 15 N. L. R. 39.* 40 Ch. D. 288.
DALTON SJP.J.—Samynaihan v. Registrar-General.
291
From this decision the present applicant appealed to this Court, settingout in his petition of appeal that the District Judge was wrong on thefacts, that his application should be allowed, and asking for his costsagainst the respondents.
This appeal came before this Court on July 23 last. A preliminaryobjection was taken by counsel for the respondents. He argued that theprocedure in regard to appeals under section 22 of Ordinance No. 1 of 1895is regulated by the rules in respect of appeals to this Court from theDistrict Court in its criminal jurisdiction. That is provided for in thelast four lines of section 22. In that event, it was pointed out that thepetition of appeal did not comply with section 340 (3) of the CriminalProcedure Code, in that it was not stamped as provided by that section.This objection was upheld and the appeal was dismissed with costs. Theformal order of this Court, under the seal of the Court, states that theorder of the District Court is affirmed and the appeal is dismissed.
The applicant did not let the matter rest there. On November 4 lasthe presented the present petition to this Court, not questioning thereinthe findings on the facts in the lower Court, but questioning the power ofthe District Court to make any order in respect of costs in proceedingunder section 22 of the Ordinance. It will be remembered that in hisappeal he had asked for costs in the lower Court in his own favour. Inhis present petition he asks this Court, in the exercise of its powers ofrevision, to set aside the order of the District Court for costs against him,on the ground that the Court had no power to make the order, and to givehim the costs of these proceedings in revision.
When this petition came before two Judges of this Court on Novem-ber 13 last, an order was made referring the petition to a Bench of threeJudges on the ground that the question, one of costs, was one of greatimportance to the legal profession.
The question reserved for this Court is whether the District Court haspower to award costs, in view of the fact that section 22 of OrdinanceNo. 1 of 1895, under which the proceedings are taken, is silent with regardto costs. The Court referring the matter also asked this Court to decidewhether appeals under section 22 should be listed before a Bench of twoJudges or before one Judge.—-
The bill of costs presented by the respondents’ proctors for payment bythe petitioner amounted to the sum of Rs. 6,813.58; this bill was taxed onOctober 5, 1935, by the taxing officer in the sum of Rs. 3,874.08. It isclear that the petitioner did not question the power of the lower Court tomake an order for costs until he was requested to pay this sum. The sumis certainly a most extravagant one, when one contemplates the nature ofthe summary proceedings provided for in section 22, but as I have pointedout, all the parties seem to have made use of that section to have a formaltrial on important issues, one of which was, in my opinion, proper fordetermination in a properly constituted action only. A disputed matterof paternity, for example, should not be decided in a summary proceedingunder section 22, but the parties should have been referred to any remedythey might have by instituting a properly constituted action.
292
DALTON SP.J.—Samynathan v. Registrar-General.
When this petition was opened before us, counsel for the respondentstook a preliminary objection to the petition being heard. He had takenthis objection also when the matter came before the Appeal Court onNovember 13. On that occasion, whilst not dismissing the objection,the Court decided to hear the petition on its merits. We decided, in viewof the terms of the question submitted to us, to take the same course,leaving it open to counsel for the respondents to deal with his objectionwhen arguing the case for his clients.
Section 22, under which the proceedings originated, gives a remedy toparties interested in the registration of a birth to apply for the rectificationof the registration, if they feel aggrieved by any entry made under theOrdinance in the registers. That application must be made to the DistrictCourt of the district within which the Registrar holds office. The sectiondoes not provide for the procedure to be followed, nor does it say anythingabout the costs of the proceedings. One would, however, not ordinarilyexpect such provisions to be enacted in section 22, unless some exceptionwere being made to the ordinary rule of practice governing applications tothe Court. I agree with Mr. Nadarajah when he argues that the questionof procedure is governed by the Civil Procedure Code. This applicationis a matter of summary procedure, to which, so far as they are applicable,the provisions of Chapter XXIV. of the Civil Procedure Code apply. Itis provided inter alia that every application to the Court of summaryprocedure must be by petition, and the Court has no other guide but thischapter to govern its procedure in respect of this application. Section209 of the Code further provides that when disposing of any applicationof summary procedure made under the Ordinance, the Court may give toeither party the costs of such application. Other rules in the Courtgoverning the question of costs also apply. I see no difficulty in thematter.
It has been urged before us that because there are instances, in whichOrdinances have created special powers in the District Court and increating those powers have added that the Court has power to grant costsalso, therefore if the section creating the power is silent on the questionof costs, there is no power in the Court to grant costs. It is not suggestedthat there is any other reason whatsoever why costs should not be allowedto a successful party whose application has been opposed. Of theOrdinances to which our attention was called, some such as the TradeMarks Ordinance, 1925, section 52, and the Housing Ordinance, 1915,section 84, constitute the District Court as a special tribunal of appeal.Such proceedings could hardly be said to fall under Chapter XXIV. of theCode or under any other provision of the Code unless it is speciallyprovided. The same remark applies to proceedings under the InsolvencyOrdinance, and the Land Acquisition Ordinance. 1876. The latterOrdinance sets out special procedure to be followed in +,'>2 case of areference to the District Court. The Marriages Ordinance, 1907, in pro-ceedings under section 31 of that Ordinance, empowers the District Courtto impose a fine. It is possible therefore that the legislature regardsproceedings under that section in the nature of quasi-criminal »v <-1 edings.It must not be taken, however, that in proceedings under tha: "action Ihold that the District Court has no power to grant costs. Tha- question
DALTON S.P.J.—Samynathan v. Registrar-General.
293
does not arise here, and will be decided when it arises. I can find nothingin the Ordinances referred to that can be made use of to support theargument that in proceedings under section 22 of the Births and DeathsOrdinance, the Court has no power to grant costs.
In answering the question referred to us therefore I am of opinion thatthe Court has power to grant costs in proceedings under section 22, theprocedure being started by an application of summary procedure, governedby the Civil Procedure Code, 1889.
On the supplementary question as to whether appeals under section 22should be listed before a Bench of one or two Judges, the proper courseto follow, in my opinion, is to list it before a Bench of one Appeal Judge.The section provides that, so far as the procedure in regard to appeals isconcerned, the appeals are to be treated as appeals from the DistrictCourt in its criminal jurisdiction. Appeals in proceedings under thissection, ir* my opinion, cannot be more important than ordinary criminalappeals from the District Court involving a person’s liberty sometimes fora considerable period. For the purpose of listing appeals also in myopinion, they should be placed in the same category as appeals from theDistrict Court in its criminal jurisdiction and should therefore be heardbefore a Court of one Judge. He has the power given by the Ordinanceof course of referring any important case or question to a fuller Bench.
Although the application in revision must, in my opinion, be dismissedfor the reasons I have given in answering the question referred to thisCourt, it is desirable to say something about the preliminary objectiontaken by the respondents to the hearing of the application. Thatobjection, in my opinion, is well founded.
The order which it is now sought to revise is in effect the order of thisCourt, which affirmed the order of the lower Court. Even if one were toaccept Mr. Perera’s argument that the order of the Appeal Court waswrongly drawn, seeing that the appeal was not heard on the merits, theapplicant had a right of appeal from the decision of the lower Court,.which right he has in fact exercised. A proceeding in revision is invokingan extraordinary remedy, which the Court is required to exercise withgreat care, otherwise there would be no end to litigation once commenced.It is well established that an application by way of revision will notgenerally be entertained when proceedings by way of appeal lie—perShaw J. in Alles v. Palaniappa ChettyWood Renton J. in Banduldhamyv. Silva % also points out that, though there is no hard and fast rule whichprecludes the Court from doing so in proper circumstances, the SupremeCourt will not generally deal in revision with decisions which could havebeen brought before it by way of appeal.
No satisfactory reason has been advanced why the applicant did notseek in his appeal to have the order for costs against him set aside on theground he now puts forward that the order was made without authorityin the Court to make it. He was acting on legal advice then. It. wasapparently the size of the bill he was asked to pay that made him subse-quently question the validity of the order and .start these -Proceedings in
2 2 Cur. La^'Reports at 68.
1 19 N. L. R. at p. S38.
294
Vanderstraa ten v. Eaton.
revision. He could have brought the decision of the lower Court on thisquestion before this Court in his appeal, and having failed to do so, I seeno proper or sufficient circumstance put forward entitling him to proceednow in revision.
The application in revision must be refused with costs.
Akbar J.—I agree.
Poyser J.—I agree.
Application refused.