096-NLR-NLR-V-05-TISSEHAMY-v.-SAMUEL-APPU.pdf
1902.June 2.
( 884 )
TISSEHAMY *. SAMUEL APPU.
P. C., Matara, 7,839.
Maintenance Ordinance, No. 19 of 1889—Magistrate declining to make orderfor maintenance—Appeal to Supreme Court.
The order of a Magisterate who, after hearing evidence in a case ofmaintenance, declines to make an order for maintenance, is one that c isappealable to the Supreme Court, under section 17 of the Ordinance.
T
HE applicant prayed for an order of maintenance in terms ofsection 8 of Ordinance No. 19 of 1889, alleging that she was
the “ kept wife ” of the respondent; that she was unable to main-tain tbe child born of him; and that he had refused to give hermaintenance, though able to do so.
After hearing evidence, the Police Magistrate declined to make,an order for maintenance, not being satisfied that the respondentwas the father of the child.
Applicant appealed.
The ease came up for argument in appeal before Middleton, J.,but in view of conflicting decisions ■ brought to the notice of theCourt by the counsel for the respondent, his Lordship directedthat the question should be considered and disposed of by theCollective Court. The case accordingly came on for hearingbefore Moncreiff, A.C.J., Wendt, J., and Middleton, J., on the2nd June, 1902.
Walter Pereira, for respondent.—There is no appeal in a caselike this. The decisions of the Supreme Court are conflicting onthis point. The earliest, decided in 1892 by three Judges, is infavour of the respondent (Fernando v. Iamperumal, 2 C. L. R. 88).There it was held that no appeal lay against an order of the.Magistrate refusing to make an order. For nine years afterwardsthe point does not seem to have come up or been questioned. But in1900, in Etna v. Emneru (4 K. L. R. 4). Bonser, C.J.. doubted thecorrectness of that decision, and in 1901 Browne. -J., held.that such-an order was appealable (Perera v. Pody Singho, 5 N. L. R. 243).Under section 3. of the Ordinance No. 19 of 1889, the only orderthat can be made by the Magistrate is an order allowing theapplication, and section 17 gives an appeal against the order.There is no other order possible. [Wendt, J.—If the Court issatisfied, it may make order allowing maintenance. Those wordsimply that, if it is not satisfied, it may make order refusing to makeany order.] Tt is submitted that such an implied power is not tobe presumed, and there can be no appeal unless the right of appealis expressly given.
(330)
Print, for appellant, relied on the judgment of Bonser, C.J.in Perera v. Pody Singho. In Fernando’s case, reported in 2 C. L. II■88, the order was, “ the application is dismissed.” Burnside, C. J.,interpreted that to mean, ” I make no order.” Here the Magistratedeclines to make the order for maintenance, which is tantamountto dismissal of the application. The order there was entirelydifferent from the order here. Section 17 says that any person
who shall be dissatisfied with any order under section 8 may
appeal. Burnside, C.J., thought that, while giving a Magistratepower to make an order granting the application, the sectionimpliedly gave him power to make an order refusing to allowmaintenance. The order of refusal is therefore an order undersection 3, and any order under that section is appealable undersection 17.
2nd June, 1902. Xonoreift, A.C.J.—
I have no doubt that this objection is not good. The appellantin the Police Court of Matara prayed for an order of maintenanceupon the defendant. The Magistrate, after inquiring into thematter and hearing evidence, said, “ I decline to make an orderfor maintenance.” The applicant appealed, and an objection wastaken in limine to the' effect that no appeal lay from what is not.strictly speaking, an order under the Maintenance Ordinance,No. 19 of 1889. That point was referred to a Court of three.Judges by the presiding Judge for argument.
The sole question is whether what the Magistrate said in thiscase is an order under section 14 of the Ordinance. The courseof the matter seems to be this. The applicant goes to the Magis-trate and asks for an order of maintenance, and upon that applica-tion he first of all examines the applicant, and if he thinks thereis no ground for the application, he may, in the words of section14, make an order refusing the order of summons. Then, whenthe matter is inquired into, if the Magistrate thinks that theapplication is well-founded, he may order the defendant to makean allowance that is provided for uuder section 3. but in thatsection there are no words referring to the refusal of the Magis-trate to make the order as being in itself an order. Now, section17 provides that any person who shall be dissatisfied with any Ordermade by a Police Magistrate under section 3 may appeal to theSupreme Court. It is to be observed that the words used in thissection are not “ an order made under section 3,” but “ any orderunder section 3.” For the respondent. Mr. Pereira relied uponthe judgment in the case of Fernando v. Iamperumal, reported in 2
1902.June 2.
{ m )
1802.C. L. B.86, in which, Mr. Justice Lawrie dissenting, Burnside,C.J.,.
June 2.and Withers, J., held that no appeal lay where in a similar case the
Monorbxff, Police Magistrate had said, “ the application is dismissed,’’ and inA.C.J.referringto those words the Chief Justice said, “I construethem
to mean‘ I make no order,’ consequently no appeal lies.”Mr.
Justice Withers agreed with him. But, as Bonser, C.J., pointedout, the matter was not argued before Mr. Withers, and the judg-ment of the majority can only be regarded as a pious opinion.Since then, in a case reported in 4 N. L. R. 4, and in another casereported in 5 N. L. R. 243, Bonser, C.J,, expressed a very clearopinion that the Ordinance does give an applicant the right ofappeal, although the Magistrate may not have in precise languagedeclared that he made an order dismissing her application.
I have no doubt at all that Bonser, C.J.. was right. The merefact that nothing is said about an order of dismissal under section3 does not establish that a refusal does not involve an order. Inmy opinion, it is not necessary for the Legislature to add what.was obvious without further expression in words. Moveover, aspointed out by Mr. Prins, section 17 speaks widely, not of theorder or of an order, but of “ any order under section 3.”
The mistake in this case, I think, has been due to too implicit anobedience to words. Words are very useful servants, but they arebad masters, and Burnside, C.J., I think, was misled by the formof section 3 into holding what was inconsistent with sense. It usedto be a common endorsement on a summons in the . EnglishCourts, ” No order.” That simply meant that the application wasrefused, but I have never heard it suggested that it did notamount in reality to an order of refusal. I think that this objec-tion should not be made. The case will go back in order that theappeal may be heard before the Judge who referred this matter tothe Court.
Wendt, J.—
In this matter the Magistrate, after hearing evidence, said thathe declined to make an order for maintenance. He was proceedingto ascertain whether, there were grounds for ordering the defendantto make an allowance to the complainant under section 3 of theOrdinance, and his order was not a refusal to exercise jurisdiction,but to exercise it in the complainant’s favour, for he proceededupon the finding that the applicant had to his mind failed to provethat- the defendant cohabited with her, and that he was the fatherof the child. I understand it to be a final order disposing ofthe application as against the applicant, whether that be' couched
( 337 )
in the language of a form of dismissing the application ordeclining to make an order. The simple question is whethersuch an order falls within the terms of section 17, upon whichthe applicant must rely for the right of appeal. I am of opinionthat it does.
It seems to me that in enacting in section 3 that the Magistrateupon proof of certain things might make an order for maintenance,the* Legislature also impliedly enacted that, if not so satisfied byproof, the Magistrate might refuse to make the order, and that iswhat I understand him to have done here. And. his order fallswithin the terms “ any order under section 3.” I think thereasons for this view are admirably stated by Mr. Justice Lawriein the last paragraph of his judgment in the case of Fernando v.Iamperumal-, and these reasons acquire additional weight fromthe concurrence with them of the late Chief Justice of this Court.I therefore concur in the order proposed by my Lord the ChiefJustice.
Middleton, J.—
The question in this case, as I understand the applicant-, iswhether the wordsused by the Magistrateonthe occasion when
he dealt with thiscase amount or not toanorder,and if they
do amount to an order, whether it is such an order as isappealable.
The words he used were, “ I decline to make an order formaintenance.” Now, 1 view any expression of opinion amount-ing to a final decision by a Magistrate as of necessity amountingto an order. To my mind there is no particular virtue in the wordswhich he uses, buthe must from > his officenaturallyeither order
that a thing is to be done, or that it may notbedone.In the case
here, although he used, words perhaps of an ambiguous character,it seems to me that what they really amounted to was, “ I orderthat this application be dismissed on whatever grounds hechose to dismiss it. Now, if these words amount to an order, Ihave no doubt that, under section 17 of the Ordinance, it is anorder which is appealable.. That section says that any personwho shall be dissatisfied with any order made by a Police Magis-tratemay appeal. For these reasons, and for the reasons
that have been given by the late Chief Justice Bonser in para-graphs 4 and 5 of his judgment in the case of Perera v. PodySinho, reported in 5 N. L. R. 243, I am of opinion that this is acase which should be allowed. I agree with the observationsthat fell from my brother Wendt and my Lord.
13 J. N. A 68216 (1/47)
1903,Jtme 2.
Wendt. J.