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Present: Schneider J.
SILVA v. APPuh AMY et al.
522—P. C. Oampola, 11,954.
Vehicles Ordinance—Distress warrant for non-payfnent of hire—Neglector refusal to pay—Wrongful issue of warrant—Magistrate'spower—Irregular affidavit—Ordinance No. 4 of 1916, 8. 49.
A distress warrant to recover payment of a sum due for thehire of a vehicle can issue under section 49 of the Vehicles Ordinance'only upon the refusal or neglect of the defaulter to pay the sumafter it has been awarded by the Court.
A Magistrate has power to recall a warrant that has beenirregularly issued.
A PPEAL from an order made by the Police Magistrate ofGampola.
The proceedings in the case were initiated by an affidavit from aperson who styled himself complainant. Three persons were namedas accused in the caption to the affidavit, which stated that a sumof Rs. 194 was due to the complainant for the hire of a vehicle to theaccused who had failed and neglected to pay the sum. On theaffidavit being died, the Magistrate directed the issue of a distresswarrant returnable on August 27, 1925.
On August 18 a Proctor filed an affidavit from the first accusedto the effect that he had received information of the issue of thewarrant but had no notice of the proceedings. The-Proctor movedfor the recall of the warrant which the Magistrate disallowed.
N. K.phoksy, for accused, appellant.
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September 28, 1925. Schneider J.—
The question raised by this appeal is of great practical importanceand calls for careful consideration. The proceedings in the caseappear to have been initiated by an affidavit by one Silva who styleshimself “ complainant ” and three persons “ accused" in thecaption of the affidavit. It is to the effect that a balance sum ofRs. 194 was due to the complainant for the hire of a vehicle to theaccused and that the accused had failed and neglected to pay thatsum. There is nothing to show how this affidavit came on therecord, or what the court was invited to do. The date of theaffidavit is August 13, 1925. An entry by the Magistrate on thesame date at the bottom of the affidavit shows that Mr. Jonklaashad appeared for the complainant and that the Magistrate haddirected the issue of a distress warrant returnable on August 27.The warrant appears to have been issued on the very day theMagistrate made his order. The affidavit is headed “ In the PoliceCourt of Gampola,” but there is no indication that an applicationwas made under some special provision of the law. It seems to medesirable that in special applications of this kind the caption shouldindicate under what special law or rule the application is beingmade. In'this case the caption of the affidavit should have been“ In the matter of the application of A B under the provisions *of section 49 of the Vehicles Ordinance, No. 4 of 1916. Thepreceedings are intended to be under section 49 of the VehiclesOrdinance, No. 4 of 1916. Before proceeding to consider theprovisions of that section I would follow the history of the case.On August 18 a Proctor filed an affidavit from the first accused tothe effect that he had received information of the issue of the warrant,and that he had no notice of the proceedings and had a “ validdefence to the charge.” The Proctor moved for the recall of thewarrant, and an inquiry. The Magistrate disallowed this motionstating that he did not know “ under what section the applicationwas made.” On August 24 the accused’s Proctor filed a petitionof appeal against the order of the Magistrate, and once again movedthat the court would be pleased to withdraw the warrant pending‘the decision of the appeal. On this occasion the Magistrate heardthe appellant’s Proctor who appears to have argued that the recoveryof a fine is suspended by an appeal &nd so the warrant should alsobe suspended. The Magistrate refused to order the recall of thewarrant. The petition of appeal is in the ordinary form of such apetition in a criminal case. It bears a certification as to the matterof law stated in it to satisfy the requirements of the CriminalProcedure Code.
I shall now proceed to consider the section in question. Appar-ently the provisions in this section fall into two distinct parts. Itfirst provides that upon the refusal or omission to pay the sum
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“ justly due " for the hire of a vehicle and upon complaint “ andsummary proof of the facts ” a Police Court or a Municipal Courthaving jurisdiction shall award—(1) “ reasonable satisfaction ” forthe complainant’s “ fare and costs ” and also (2) “ reasonablecompensation for loss of time in attending to make and establishsuch complaint.”
It then provides that upon the “ neglect or refusal ” of “ thedefaulter ” to “ pay the same ” (that is the sum or sums awardedaccording to the provisions in the earlier part) “ it shall be recoveredas if rt were a fine imposed by suck court.”
The procedure for the recovery of a fine is to be found in section312 (2) of the Criminal Procedure Code. It is by way of a warrantissued to the Fiscal for the levy of the amount by distress. Thepowers of the Fiscal under such a warrant are prescribed in thatsection. I searched the record in this case, but in vain, to find whatthe warrant was which the court had issued to the Fiscal. There isno special form for such a warrant to be found among the formsgiven in Schedule D3. of the Criminal ‘Procedure Code. Unlessthe court in this case had been careful to indicate to the Fiscalthat the warrant was one issued under section 312 of the CriminalProcedure Code, it is probable that the Fiscal might fail to observe therestrictions imposed by that section. In all the circumstances theMagistrate would have acted more wisely if he had instructed theFiscal not to enforce the warrant till the appeal had been decided.
The language of the section is plain that the warrant is to issueonly upon the neglect or refusal to pay the sum awarded by thecourt. In this case even if the proceedings be regarded as that theMagistrate had awarded the sum mentioned in the affidavit, althoughthere is no express order to that effect, he should not have issued thewarrant as no demand for payment had been made after the sumhad been awarded, and consequently, there had been no “ neglector refusal ” to pay. As the warrant had “ improvide emanavit ”he had the power to recall it, and should have done so when he wasmoved to do it. The obligation to pay hire for a vehicle, taken onhire is purely civil and contractual. Nowhere is it declared to be anoffence to make default in payment of such hire. Section 49 onlyseeks to provide a speedy means of enforcing a purely civil right.An analogous provision is to be found in the Maintenance Ordi-nance, 1889 (No. 19 of 1889). The Magistrate in this case appearsto have been of opinion that the person to whose prejudice an orderis made under the provisions of the section had no right to be heardat all. Unless there is a clear indication to the contrary, a personis entitled to be heard before an order to his prejudice can be made.I see nothing in the provisions of this section to indicate that theperson against whom the order has to he made is to he denied hisordinary lawful right of being heard in this defence. The languageof the section suggests that the procedure should be an adaptation
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of the procedure prescribed for summary trials before a Police Courtor a Municipal Court. The section speaks of “ complaint,” “ actscommitted,” “ defaulter,” “ offender.” If upon material placedbefore the Magistrate he is satisfied that there is “ justly due ” somesum for the hire of a vehicle he should issue a summons on the personagainst whom the complaint is made and, if necessary, try summarilythe issue between the parties, and then upon summary proof he .should enter his award. If this award is entered in the presence ofthe person against whom the claim is made the Magistrate mightthen and there direct that payment should be made by a particulardate. Non-payment by such a date would then be evidence of the" neglect ” or “ refusal ” spoken of in the section, which would giverise to the procedure for the recovery of the sum as a fine. It isworthy of note that in speaking of the compensation which might beawarded the section speaks of the compensation awarded for lossof time, not only in attending to make the complaint but also toestablished it, which might be regarded as suggesting an attendanceafter the complaint had been made.
On the question whether a person had the right to be heard in aproceeding under an analogous provision, namely, section 51 ofthe Excise Ordinance, No. 8 of 1912, I held that as a matter ofsound judicial discretion an .order should not be made withouthearing the person who would be affected by the order, see Sinne-tamby v, Ramalingam.1
In the present case the Magistrate does not appear to havefollowed the correct procedure.
I think the complainant’s Proctor should have filed a motion withthe affidavit, or submitted some pleading to indicate what relief hewas seeking. I direct him to do that now.
I set aside all the proceedings since the filing of the.affidavit, andorder that the warrant be recalled forthwith. The case will beremitted to the Magistrate for proceedings in due course after thecomplainant’s Proctor has submitted what I have directed him tosubmit to the court./
• The appellant will have his costs of this appeal taxed as in anaction in the Court of Requests for the recovery of the sum ofRs. 194.
» (1924) 23 N. L. R. 31V
SILVA v. APPUHAMY et al