108-NLR-NLR-V-63-A.-ALIYARLEBBAI-Appellant-and-K.-PATHUMMAH-Respondent.pdf
Aliyarlebba* v. Pathummah
671
1961Present: T. S. Fernando, J., and Sinnetamby, J. *A. ALIYARLEBBAI, Appellant, and K. PATHUMMAH,
Respondent
S. C. 1—Quazi Court of Karavaku, 3620
Maintenance—Illegitimate child—Muslim-parties—Plea of res judicata—
Applicability—Scope of obligation of Quazi to examine at least two witnesses—Maintenance Ordinance (Cap. 76), s. 6—Muslim Marriage and Divorce Act,No. 13 of 1951, ss. 28 (2), 47 (6), Schedule 3, Rule 11, Schedule 4, Rule 7.
Where an application for the maintenance of an illegitimate child is dismissedby a Quazi after the evidence of the parties is recorded, the dismissal of theapplication, whether upon insufficiency of evidence or upon refusal of anapplication for postponement, bars a second application for the same relief.
In an inquiry held under section 47 (6) of the Muslim Marriage and DivorceAct No. 13 of 1951, Rule 7 of the Fourth Schedule of the Act must be inter-preted to mean that the Quazi’s obligation to examine at least two witnessesarises only if there are two or more witnesses in attendance at the inquiry.
572
T. S. Jb'ERNAUDO, J.—AMyarlebbai v. Pathummah
y_PPEAIj from an order of the Board of Quazis.
Izadeen Mohamed, with M. T. M. Sivardeen, for the defendant-appellant.
E. R. 8. R. Coomarasmamy, with Hanan Ismail, for the applicant-respondent.
Cur. adv. vull.
July 7, 1961. T. S. Fekstahdo, J.—
This appeal canvasses the correctness of an order made by the Boardof Qnazis holding that the dismissal by a Quazi of an application formaintenance after taking the evidence of the parties does not bar theapplicant from maintaining fresh proceedings for the same relief.
To appreciate the point involved, it is necessary to set out the historyof the applications made by the applicant, the respondent to this appeal,for maintenance in respect of her illegitimate child. It does not appearthat, under the law applicable to proceedings for maintenance amongMuslims, there is any provision similar to that contained in section 6 ofthe Maintenance Ordinance (Cap. 76) to bar applications for mainten-ance not instituted within 12 months from the birth of the child.
The applicant first applied to the Quazi court on 8th December 1953.The child was then stated to be about 3 years old. This application wasnumbered 5842. After the case had been mentioned in court on twooccasions and before summons could be served on the defendant, theappellant on this appeal, the application was on 12th January 1954 dis-missed on the applicant being absent on the calling date.
After a lapse of nearly three years, i.e. on 24th December 1956, theapplicant instituted proceedings a second time—application numbered1827—and, after the case had been set down for inquiry on severaloccasions, on 11th May 1957 it was marked “ ready for inquiry today”.The inquiry was commenced, presumably later that day, and theapplicant’s evidence was recorded on affirmation in the course of whichshe stated that the appellant is the father of her illegitimate child.She was tendered for cross-examination, but no questions were put toher by the appellant. The Quazi then recorded the evidence of theappellant, also on affirmation, in the course of which he denied that hewas the father of the child. He was in turn tendered for cross-examination by the applicant, but no questions were put to him by theapplicant. In the course of the applicant’s evidence she did say shehad “ no witnesses at this moment to prove the case ; hence I amnot going for inquiry ”. The appellant also stated when his turn cameto give evidence that he was not ready for inquiry as “ my witnessesare at the moment not procurable After the evidence of the applicant
T. 8. FERNANDO, J.—Aliyartebbai v. Pathummah
573
and the appellant had been recorded the Quazi dismissed the applicationfor maintenance. He has also made the following entry of record :—“Application disallowed”. This entry probably means in the contextthat an application for a postponement was refused by him.
The applicant next instituted proceedings once again, that is, for thethird time—on 12th August 1959. This third application was numbered3620, and the appellant raised before the Quazi during the proceedingsthe plea of res judicata, but the judge ruled that the order inapplication No. 1827 was no bar to the later application No. 3620 beingmaintained, and went on to decide the Question of paternity and,holding against the appellant, ordered him to pay byway of maintenancea sum of Rs. 15 a month as from the 12th August 1959.
An appeal preferred by the appellant to the Board of Quazis wasdismissed, the Board holding that application No. 1827 came to bedismissed without the court proceeding to inquiry. The Board soughtto distinguish the proceedings in application No. 1827 from the coursewhich the case of Punchi v. Tikiri Banda 1 followed by taking the viewthat in application No. 1827 there was no decision on the merits andthat there was no withdrawal of the case as happened in Punchi's case.
I regret I am unable to agree that the distinction so sought to be madeby the Board is a valid one. When the Quazi disallowed the applicationpresumably made for a postponement and thereafter proceeded totender the applicant for cross-examination and to record the evidenceof the appellant, it is difficult to take any view other than that aninquiry was held. Moreover, to reproduce the words used by theQuazi himself, the application was dismissed, not that the inquiry wasput off. There was, in my opinion, an adjudication on the applicationto the effect that the applicant had not satisfied the Quazi on the mainissue of paternity. In BanJciri v. Kiri Hattena 2 it has been held that, inproceedings under the Maintenance Ordinance against a putative fatherfor maintenance, the dismissal of a previous application, whetherupon insufficiency of evidence or upon any other defect is a decisionupon the merits, and that such decision bars a second application.This case was followed in Jainambo v. Izzadeen 3 where the Court wasconsidering a case between Muslim parties on an appeal from a decisionof the Board of Kathis. For the reasons indicated above I am of theopinion that the view taken by the Quazi and the Board of Quazis inthe case now before us is contrary to authority, and that the plea ofres judicata raised by the appellant should have been upheld. Itfollows that this appeal should be allowed and the applicationNo. 3620 dismissed.
It is necessary before disposal of this appeal to advert to an argumentadvanced by learned counsel for the applicant in an effort to resistthe plea of res judicata. He referred us to Rule 7 of the Rules forinquiries under section 47 of the Muslim Marriages and Divorce Act,
1 (1951) 54 N. L. R. 210.8 (1891) 1 Ceylon Law Reports 86.
8 (1938) 10 Ceylon Law Weekly 138.
Kandasamtf v. SubraYnaniarn
74
No. 13 of 1951, contained in the Fourth Schedule to that Act and toRule 11 in the Third Schedule of the same Act and contended that theplea cannot succeed because the Quazi has not examined the minimumnumber of witnesses specified in the said Ride 11. Section 47 (6) of theAct enacts that every inquiry under that section shall be held as nearlyas possible in accordance with the rules in the Fourth Schedule, andsection 28 (2) which brings the Third Schedule into operation itselfdeclares that the procedure laid down in that Schedule shall be followedso far as the nature of the relief claimed in each case renders it possibleor necessary to follow that procedure. Rule 7 of the Fourth Schedulewhich is the Rule invoked in the applicant’s aid by her counsel itselfonly provides that the provisions of Rule 11 in the Third Schedule as 4to the record of proceedings shall apply so far as may be in the case ofinquiries held under the rules in the Fourth Schedule. If therefore anapplicant does not bring or cause to be brought before the Quazi theminimum number of witnesses, it is difficult to see how the Quazi canexamine at least that number of witnesses. The rule must be interpretedto mean that the Quazi is obliged to examine at least two witnesseswhere there are two or more in attendance at the inquiry. In view ofthe nature of the relevant provisions, we are of opinion that that partof Rule 11 which relates to the minimum number of witnesses doesnot embody an imperative provision of the law. There has not thereforebeen, in my opinion, any legal defect in the procedure followed by theQuazi in application No. 1827 ; nor can I see how even a defect in theconduct of the proceedings by the Quazi can affect the validity of hisadjudication which has not been reversed by an appeal preferred asprovided by law.
There will be no costs of this appeal.
Sinnetamby, J.—I agree.
Appeal allowed.