Namasivayam V. Saraswathy

1959     Present: Basnayake J.

NAMASIVAYAM, Appellant, and SARASWATHY,
Respondent

S. C. 1,192-M. C. Mallakam, 6,080

Maintenance-Issue of summons-No examination of applicant on oath or affirmation-Jurisdiction of Magistrate-Maintenance Ordinance-Section 14.

It is a condition precedent to the issue of summons in proceedings under the Maintenance Ordinance that the applicant should be examined on oath or affirmation and that the Magistrate should be satisfied that there is sufficient ground for proceeding.

APPEAL from a judgment of the Magistrate, Mallakam.

H. W. Tambiah, with Sharvananda, for the defendant-appellant.

No appearance for the respondent.

Cur. adv. vult.

 February 11, 1949. Basnayake J.-

On June 19, 1948, the applicant, one Saraswathy (hereinafter referred to as the applicant), wife of Sinnathurai Namasivayam, the defendant-appellant, (hereinafter referred to as the defendant), made an application for maintenance, in writing, as required by section 13 of the Maintenance Ordinance (hereinafter referred to as the Ordinance), in which she com­plained that her husband having sufficient means failed and neglected for the last eight months to maintain her and his child Thavamany Devi aged six years and asked that the defendant be ordered to make a monthly allowance for their maintenance under section 2. On the same day without following the procedure indicated in section 14 the learned Magistrate made order that summons should issue on the defendant.

Learned counsel for the defendant submits that the failure of the learned Magistrate to follow the procedure prescribed by section 14 of the Ordinance vitiates all subsequent proceedings had on the application. I think learned counsel's submission is entitled to succeed. Section 14 is imperative in its language and it requires the Magistrate to examine the applicant on oath or affirmation and record such examination and issue summons if there is after such examination sufficient ground for proceeding. It appears therefore that the judgment of the Magistrate that there is sufficient ground for proceeding is a condition precedent to the issue of summons and to all subsequent proceedings. Although the enactment is affirmative and does not expressly prohibit the issue of summons without the examination contemplated therein, it is a rule of construction that " every statute limiting anything to be in one form, although it be spoken in the affirmative, yet it includes in itself a negative "1[Viner's Abridgement, Tit. Neg. A. pl. 2.]. Another rule of construction that should be noticed in this connexion is that " if an affirmative statute, which is introductory of a new law, direct a thing to be done in a certain manner, that thing shall not, even although there be no negative words, be done in any other manner " 2[Dwarris on Statutes, p. 477.].

A Magistrate's jurisdiction under the Maintenance Odinance is a special jurisdiction created by the statute and it is a rule of construction that when a statute confers jurisdiction upon a tribunal of limited authority and of statutory origin, the condition and quali

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