007-NLR-NLR-V-50-SARASWATHY-Appellant-and-KANDIAH-Respondent.pdf
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BASNAYAKK J.—Saraswathy v. Kandiah.
1948Present: Basnayake J.
SARASWATHY, Appellant, and KANDIAH, Respondent.
S. C. 122—M. C. Point Pedro, 9,991.
Maintenance—Jurisdiction—Residence of defendant—Cause of action,—Applicability of Civil Procedure Code—Maintenance Ordinance self-contained.
The neglect or refusal of the defendant to maintain his wife andchildren may be regarded as a cause of action which will confer jurisdic-
. tion on a Court where proceedings are taken under the MaintenanceOrdinance.c
Obiter : A Magistrate has jurisdiction to entertain an application undersection 2 of the Maintenance Ordinance regardless of the residence ofthe parties or the place where the cause of action arises. The Mainte-nance Ordinance is self-contained and it is not correct to resort to theCivil Procedure Code to construe it.
Jane Nona v. Van Twest (1929) 30 N. L. R. 449 doubted.
y^PPEAL from a judgment of the Magistrate, Point Pedro.
S.Mahadevan, for the appellant.
No appearance for the respondent.
Cur. adv. milt.
April 5, 1948. Basnayake J.—
The appellant applied to the Magistrate of the Magistrate’s Court ofPoint Pedro for an order for maintenance in respect of herself and herthree children. The learned Magistrate rejected her application on theground that the applicant’s residence was within the jurisdiction of theMagistrate’s Court of Jaffna sitting at Mallakam and that he had there-fore no jurisdiction to entertain the application.
It is not clear from the learned Magistrate’s order what provision oflaw he had in mind when he held that the applicant “ had not made herhouse within the jurisdiction of this court. Hence her residence is withinthe jurisdiction of the Mallakam Courts and not within the jurisdictionof this Court ”. It cannot be that the learned Magistrate had in mindsection 9 of the Civil Procedure Code because under that section the courtwithin the local limits of whose jurisdiction the party instituting theaction resides has no jurisdiction to entertain an action on the groundthat such party resides there. The case of Jane Nona v. Van Twest1 whichis a decision of two Judges of this Court and is binding on me lays downthat the tests laid down in section 9 of the Civil Procedure Code should beapplied for the purpose of determining a Magistrate’s jurisdiction toentertain an application under section 2 of the Maintenance Ordinance.In the present case it is admitted that the defendant was at all timesincluding the date on which these proceedings were instituted living atChunnakam, a place outside the jurisdiction of the Magistrate’s Court ofPoint Pedro. Then has the Magistrate’s Court of Point Pedro jurisdictionunder section 9 (c) of the Civil Procedure Code ? It appears from theevidence that the neglect or refusal to maintain the applicant was indicatedby the defendant for the first time at Chunnakam. If the neglect or1 (1929) 30 N. L. R. 449.
BASNAYAKE J".—-Gunaraine v. Bahia.
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refusal to maintain is regarded as the cause of action the Magistrate’sCourt of Point Pedro has no jurisdiction. I therefore uphold theMagistrate’s order though for different reasons.
The Maintenance Ordinance is a special enactment which enactsspecial rights and creates the machinery for enforcing them. It is self-contained and it has been held by this Court in the case of Anna Per erav. Emaliano Nonisx that it supersedes the common law rights. I thereforefind myself unable to reconcile the decision in Jane Nona v. Van Twest(supra) with the rules of interpretation of a special enactment such as theMaintenance Ordinance. In my view it is not correct, I say so withthe greatest respect, to resort to other enactments to construe a self-contained instrument. Where as in this case a statute creates a newvariety of a right which previously existed at common law all commonlaw incidents will attach to that new variety of right2, but it is notpermissible to import into it provisions of other statutes existing at thetime of its enactment. My own view is that a Magistrate has jurisdictionto entertain an application under section 2 regardless of the residence ofparties or the place where the cause of action arises. In my opinion thespecial provisions commencing with section 11 and ending with section 18leave no room for holding that the absence of a provision such as section9 of the Civil Procedure Gode is a casus omissus. On the other handthose very provisions are an indication that the legislature has designedlyabstained from imposing any limitation on a Magistrate’s right to entertainan application thereunder.
The appeal is dismissed.
Appeal dismissed.