ABRAHAMS CJ.—Seethi v. Mudalihami.
Present: Abrahams CJ.
SEETHI v. MUDALIHAMI.
481—P. C. Avissawella, 13,836.
Maintenance—Failure to produce witnesses at the trial—Dismissal of appli-cation—Petition to reopen case—Agreement to pay maintenance byrespondent—Jurisdiction of Court.
In maintenance proceedings, on the day fixed for hearing, the applicantinformed the Court that she had no witnesses present to supply thenecessary corroborative evidence in support of her claim, and the appli-cation was dismissed.
Later the applicant petitioned the Court, alleging that she brought nowitnesses as the respondent had proposed certain terms of settlementwhich he had failed to fulfil.
The Magistrate thereupon fixed the case for trial at which the respond-ent undertook to pay as maintenance such sum as the Court thoughtreasonable. The Magistrate accordingly fixed the'sum.
Held, that the Magistrate had no power to reopen the case.
Beebee v. Mahmood (23 N. L. R. 123) distinguished.
PPEAL from an order of the Police Magistrate of Avissawella-
H. V. Per era, K.C. (with him J. A. T. Perera), for appellant.
P. A. Senaratne, for respondent.
Cur. adv. vult.
October 4, 1937. Abrahams C.J.—
The respondent instituted proceedings against the appellant in thePolice Court, Avissawella, for the maintenance of her three illegitimatechildren of which she alleged the appellant was the father. On the datefixed for the trial, the respondent did not appear. The learned Magistrateinstead of dismissing the case as he should have done, took the amazingcourse of issuing a warrant for her arrest. The parties both appeared onthe day next fixed for the hearing and the case came on before anotherMagistrate. The respondent said she had no witnesses present, whocould supply the necessary evidence corroborative of her claim that theappellant had fathered the children. The case was quite propertydismissed.
Some days later the first Magistrate returned and the respondent trans-mitted a petition to him alleging that when the case had been first calledthe appellant approached her and suggested a settlement promising onconsideration of her withdrawal of the case to give her Rs. 100 and totransfer to her a piece of land, and in consequence of this promise shebrought no witnesses with her to the trial of the case. She stated she hadreceived Rs. 50, and a promise of the balance of the money within a fewdays, but no further mention had been made of the piece of land, whichthe appellant had agreed to transfer. She therefore* prayed the learnedMagistrate to cause the appellant to fulfil this promise.
The Magistrate made an order fixing the case for trial. The respondentgave evidence claiming maintenance as before and adding a claim in
'40ABRAHAMS C.J.—Seethi v.. Mudalihami.
respect of a fourth child of which she alleged the appellant was the fatherthough she had at his request registered the child in the name of anotherman. During the proceedings discussions relating to a settlement wereentered into and at one time the appellant said he was willing to purchasea certain piece of land for Rs. 500, which would serve to maintain the fourchildren. The negotiations for purchase apparently failed and theappellant undertook to pay such sum for maintenance as the Court mightconsider reasonable. The Magistrate fixed the monthly sum of Rs. 40,and made an order accordingly.
The appellant contends the order is invalid and in any event the amountis excessive.
It is obvious that the learned Magistrate had no power to reopen a caseonce dismissed whatever might be his anxiety to do justice. Counselfor the respondent admits that this re-hearing was illegal, but makes thesomewhat faint submission that the appellant cannot complain as heaccepted the jurisdiction of the Court in the matter and indeed offered toabide by the decision of the Magistrate as to the amount of maintenance,which he agreed to pay. But the agreement of parties to submit to thedecision of a Court which has no jurisdiction cannot confer jurisdiction.He then makes the ingenious suggestion that the proceedings should betreated not as a reopening of the case but as fresh proceedings in maimtenance and cites the case of Beebi v. Mahmood where Shaw J. held thatfresh proceedings in maintenance could be instituted even by a partywhose case had been dismissed, provided that the case had not beendismissed on the merits. But the respondent’s" case had been dismissedon the merits as she admitted she had no witnesses to support her claim,not that she had witnesses, but had been unable to bring them on'theday of trial, whereas in Beeby v. Mahmood (supra), it would appear thatthere were witnesses, but they had not been brought. The implication inthe petition that the respondent had witnesses, but had been induced by theappellant’s promises not to bring them ought not to be permitted to prevailover the statement in the first case that she had no witnesses present.Had she intended to inform the Magistrate that there were witnesses, butthat she had not brought them for some reason or other, she would surelyhave said as much.. Further, the request of the respondent in her petitionwas not . for the grant of a maintenance order, but for some order ordirection to the appellant calculated to-cause him to fulfil his promise topay money and to transfer a piece of land.
The appeal must succeed. When the case stood dismissed the Courtwas functus officio. The respondent might have (I do not say she has)some cause of action. against the appellant, but the Magistrate had nopower to reopen a dismissed case for that purpose. Magistrates mustproceed according to law even if they feel they cannot do justice accordingto their notions by an adherence to prescribed procedure.
The appeal is allowed with costs.
1 (1921) S3 N. L. It. 123.
SEETHI v. MUDALIHAMI