1936 Present : Fernando A J.

ABDUL WAHAB v. ISMAIL.

790-M. C. Colombo, No. 2,113.

Colombo Municipal Council (Constitution) Ordinance-Objection to person in voters' list-Status of objector not raised-Right to raise it in appeal- Question of law-Ordinance No. 60 of 1935, s. 23.

Where an objection was raised to a person whose name appeared in. the voters list of a ward in the Municipality by a party who had no status to raise it but whose status was not questioned before the Municipal Magistrate,-

Held, that the question of status was a question of law that may be raised in appeal under section 24 of the Colombo Municipal Council (Constitution) Ordinance, No. 60 of 1935.

THE respondent, whose name appeared in the list for New Bazaar East J. Ward, objected to the appellant's name, which appeared in the list of voters for the Maradana South Ward on the ground that he was not a tenant of the qualifying property within the terms of section 14 of the Colombo Municipal Council (Constitution) Ordinance, No. 60 of 1935. The Municipal Magistrate upheld the objection and the present appellant appealed from that order.

H. V. Perera (with him Mahroof), for the appellant.-The objector is a person registered as a voter for New Bazaar East Ward. The appellant was registered for Maradana North. The first objection is that the only person who can object must be voters for the same Ward. That point had been taken in a number of cases but over-ruled.

[Rajapakse, for respondent.-This point cannot be taken under sections 23 and 24.]

Section 24 gives the procedure in the event of an appeal. The Judge in the lower Court had to adjudicate on the matter before him. It is a point involved in the adjudication, and if no facts are necessarily involved, then a point can be raised for the first time. See The Owners of the Ship "Tasmania" v. Smith[1 (1890) 15 A. C. 224. ]. Now in this case the objector says that he was registered for one ward, while the appellant was for another ward. Paragraph (d) of the petition of appeal raises it.

The only qualification that an objector need have is that his name must be on the register. That is the one and only qualification. Hence there is no ambiguity. We take that point in the petition of appeal.

A broader meaning must be given to the word " involved in the adjudication", especially as the Supreme Court has held that an objector must be in the same ward. (Mohamed Junaid v. Meeram Pillai [2 (.1936) 38 N. L. R. 364.].)

There are no set forms to be followed in the procedure. The only point to be considered is whether the necessary facts are here. There is no provision for the Chairman to strike off the name in a list.

Now with regard to the rent, the owner sets it off in respect of the repairs to be done by the appellant. The learned Judge has accepted

these facts. He may be a tenant for service. Rent need not be payable in money. Actual payment is not necessary. Section 14 (3) (c) defines tenant.

L. A. Rajapakse (with him N. M. de Silva), for the objector, respondent.-One should draw a distinction between an " order" and an " adjudication". The former is a wider term than a judgment or adjudication. It is a decision given on matter brought to his notice. Issues are raised to focus the attention of the Judge.

Such a matter was not involved in the adjudication. Under summary procedure, however good the objections may be, they must not be considered. The other side must have notice of the objections either ex mero motu or brought to his notice. See Special Procedure for Courts of Requests, C. LXVI. Civil Procedure Code; Criminal Procedure Code, section 338.

[FERNANDO A.J.-In the present Ordinance, it does not state that the grounds need be stated. Suppose he merely says that he appeals against the order.]

He cannot do so. Under section 13 of 12 of 1895, though it does not say that the point of law should be stated, it had been held