080-NLR-NLR-V-59-SOLOMON-FERNANDO-Appellant-and-PADMA-FERNANDO-Respondent.pdf
• Solomon Fernando v. Padma Fernando
351
1957'Present: T. S. Fernando, J. ■
SOLOMON FERNANDO, Appellant, and PADMAFERNANDO, Respondent ' .'
.S. C. 466—31. C. Panadura (Addl.) 37,198 . ■
3fa inte nance—Refusal by Magistrate—Order set aside in appeal—Dale from which• '‘ allowance becomes payable—Maintenance' Ordinance,- ss. 2, 17—Criminal
Procedure Code, ss. 347, 350.•f’.:.J~
352
T. S. jFERNANDO, J.—Solomon Fernando v. Fadma Fernando
Where, on appeal, a Magistrate’s refusal of an application for maintenanceis reversed and ordor is made by the Supreme Court allowing maintenance,maintenance becomes payable from the date when tho Magistrate made orderrefusing the application.*
-^^-PPEAB from an order of the Magistrate’s Court, Panadura.*
S. P. G. Fernando, with Stanley Perera, for the defendant-appellant.
J/. M. Kumarakulasingham, with B. S. Dias, for the applicant-respondent.-
Cur. adv. vult.
December 13, 1957. T. S. Febnasdo, J.—
The applicant, the wife of tho defendant, made an application to theMagistrate in terms of the Maintenance Ordinance on 10th November 1954seeking maintenance for herself. By his order delivered on 10th Sept-ember 1955 the Magistrate dismissed the application of the applicant.She appealed to this Court and was successful in obtaining a reversalof the Magistrate’s order. The order of this Court delivered on 6thAugust 1956 fixed the allowance payable by the defendant to the applicantat Rs. 100 a month. The question that arises upon this appeal relatesto the date from, which maintenance becomes payable as a result of theorder of this Court.
The learned Magistrate has held that maintenance is payable from10th September 1955, the date the Magistrate made the order dismissingthe application which was reversed by this Court. The defendant’scounsel argues that maintenance is payable only from 6th August 1956,the date of the reversal of the Magistrate’s order and the date onwhich the Supreme Court made its order directing the payment of.maintenance.
• The argument of counsel necessitates the examination of Section 2 ofthe Maintenance Ordinance-and of Sections 347 and 350 of the CriminalProcedure Code.. Section 2 of the Maintenance Ordinance is the provisionof law which empowers the making of an order for maintenance.This section empowers a Magistrate to make such an order.and providesthat maintenance shall be payable from the date of the order. It willbe observed that but for this statutory limitation it might have beencompetent for a Magistrate to direct that maintenance be payable fromthe date of the application itself.
• A person dissatisfied with an order refusing maintenance has a rightto appeal to this Court, and Section 17 of tho Ordinance "enacts that“ Sections 33S to 352 of the Criminal Procedure Code shall apply tosuch appeal ”. Under Section 347 of the Criminal Procedure Code,
T. S. FJSRXAXDO. J.—Solomon Fernando v. Padma Fernando
353
this Court is empowered on an appeal to alter or reverse an order of aMagistrate’s Court, and it seems to mo that when this Court made itsorder on Gth August 195G it was acting in terms of Section 347, and thatit reversed the Magistrate’s order dismissing the application. ThisCourt lias no original jurisdiction in the matter of making an order formaintenance; its jurisdiction is purely appellate ; and, in reversing theorder dismissing the application and in directing payment of maintenance,this Court was doing no more than substituting for the Magistrate’sorder of 20th September 1955 an order for maintenance ; in other words,this Court held that the Magistrate should on 10th September 1955 havemade an order allowing maintenance. This Court’s order now standsin the place of the Magistrate’s order and should, hi* my opinion, takeeffect on the dato on which the Magistrate’s order would have takeneffect if there had been an allowance by the Magistrate of theapplication.
Where a person has appealed against the allowance of an applicationfor maintenance and this Court dismisses the appeal, it is beyond disputethat the date of the order under Section 2 of the Maintenance Ordinanceis tho date the Magistrate made the order. Where a person appealsagainst the quantum of maintenance and is successful hi obtaining onappeal an increase or a reduction of the quantum, it is not possible tocontend successfully that the date from which the order allowing thealtered maintenance takes effect is any other than the date on which theMagistrate made tho order. I am not convinced that a different resultis obtained where, on appeal, a refusal of maintenance is reversed andin place of the order dismissing the application there is substituted anorder allowing maintenance. What the Court of Appeal docs is toascertain what decision the Magistrate should correctly have reachedin tho premises and to direct that further action be taken in tho case cntho basis that the Magistrate has reached what it (the Court of Appical)considers was tho correct decision.
Had it not been for the express enactment to the contrary containedin Section 2 of the Maintenance Ordinance, it would have boon j>ossibloto contend that an applicant is entitled to maintenance as from the dateof neglect or refusal to maintain on the part of the person legally liabloto do so. A court of law should bo slow to give an interpretation to thisexpressed limitation of the operative date which would have tho effectof pilacing an applicant for maintenance at a greater disadvantage thanthe strict meaning of the limitation demands.
Teamed Counsel for the defendant drew attention to Section 350 (2) ofthe Criminal Procedure Codo and contended that iqion tho receipt of therecord back from tho Supreme Court the Magistrate isrequired to makean order conformable to the Supreme Court’s order, and that this ordercan only operate as from the date on which it is mado by the Magistrate’sCourt. This contention would in normal circumstances render theoperative dato of tho order for maintenance a date even subsequent tothe date on which the Supremo Court delivered its order. I do notthink it profitable to consider the nature of orders that may have to bo
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made by Magistrates in a ministerial capacity in compliance with judicialorders of the Supreme Court in hypothetical cases. It would sufficeif I consider the order the Magistrate was called upon to make conformableto the order of this Court delivered on 6th August 1956. As this Courtordered the payment of maintenance .and as this Court had no originaljurisdiction to make such an order, what this Court did, as I have statedalready, was to substitute for the Magistrate’s order of 10th September1955 its owm order of 6th August 1956. Tho date from which this Corn t’sorder took effect therefore in my opinion related back to 10th September1955, and .that is tho date from which the defendant has to paymaintenance. Tho .Magistrate was therefore correct in directing thatmaintenance has to be paid from 10th September 1955.
I would dismiss the appeal with costs.
Appeal dismissed.