1926 Present: Dalton J.

DE JONG v. KANDAPPA.

419-M. C. Colombo, 1,380

Vehicles Ordinance-Order for payment of hire-No appeal-Ordinance No. 4 of 1916, s. 49.

No appeal lies from an order made in a proceeding under section 49 of the Vehicles Ordinance to recover a sum of money due for hire of a vehicle.

APPEAL from an order made by the Municipal Magistrate of Colombo under section 49 of the Vehicles Ordinance for the payment of a sum of money as hire for a motor car due by the appellant to the complainant.

Weerasinghe, for appellant.

Garvin, for respondent.

September 14, 1926. DALTON J.-

A complaint was lodged by the respondent to this appeal against the appellant that the latter, who is termed the " accused," omitted to pay to him or to his driver the sum of Rs. 58.10 motor car hire, and

that he "did thereby commit an offence punishable under section 49 Ordinance No. 4 of 1916 (the Vehicles Ordinance)." In the words of the record of the Municipal Magistrate, in whose Court the complaint was heard, the verdict was " Guilty, " and the sentence as follows: -

"I. order the accused to pay the sum of Rs. 58.10 and costs, which latter I fix at Rs. 40.48."

From that decision, the appellant, who in his petition of appeal calls himself " the accused, " appeals, but on the appeal coming on for hearing, objection was taken for the respondent that there is no appeal from this decision.

The section under which these proceedings are taken is in the following terms: -

49. " If any person shall refuse or omit to pay to the proprietor or other person authorized to recover the same (the sum justly due for the hire of a vehicle) or shall deface or in any manner injure any such vehicle, it shall be lawful for the Police Court or Municipal Court having jurisdiction in the place in which any of the acts aforesaid were committed, upon complaint of the proprietor and summary proof of the facts, to award reasonable satisfaction to the party so complaining for his fare or for his damages and costs, and also reasonable compensation for loss of time in attending to make and establish such complaint; and upon the neglect or refusal of such defaulter or offender to pay the same, it shall be recovered as if it were a fine imposed by such Court."

On a careful perusal of this section it is difficult to! find any justification for the use of the words I have cited from the complaint, with respect to the alleged commission of what is called an offence which is said to be punishable under section 49. The word " offender " is certainly used, having reference to the defacing or injuring of a vehicle, as the word "defaulter " has reference to one refusing or omitting to pay his fare, but the section merely provides for reasonable satisfaction and compensation to be given, which may be recovered as if it were a fine. The word " offender " might with equal justification be used in various proceedings which are unquestionably purely civil. The word " penalty," it is true, do appear in the marginal note to the section, but that is not to be taken as part of the Ordinance. Even if it were otherwise, it may be noted that the same word is also used in the marginal note to section 25, which appears in that part of the Ordinance (Chapter IV.) which deals with civil liabilities only. The use of the word " offences " at the head of Chapter VII., within which section 49 falls, does not alter my view of the matter.

By section 57 of the Municipal Councils Ordinance, 1910, it is provided that no appeal shall lie from any judgment or order of a  Municipal Magistrate except as provided by the Criminal Procedure Code, 1898; or by any other law for the time being in force in respect of appeals from any judgment or order of a Police Court. In support of this argument that appellant has a right of appeal here, Counsel relies upon the provisions of the Criminal Procedure Code. He admits that there is no