This is not a good old fashioned maintenance case as it comes with a twist. When the lady making an application for maintenance did the needful to make her case in the Magistrate’s Court the defendant party opposed the application on technical grounds saying the papers have not been signed by the applicant.
When another maintenance application was filed that too was rejected on technical grounds but when a third one was filed it was entertained in the Magistrate’s Court whereupon an appeal was filed in High Court. When the High Court judge upheld the order to proceed with the case, an appeal was filed by the respondent — the party that was being sued for maintenance — in the Court of Appeal challenging that order. (Ranjith v. Piyaseeli - SLR - 325, Vol 2 of 2006 [2006] LKCA 34; (2006) 2 Sri LR 325 (February 17, 2006).)
This was an appeal from the order dated 22.01.2002 of the learned High Court Judge of the High Court of Sabaragamuwa Province, held in Kegalle, upholding the order of the learned Magistrate of Kegalle made on 21.03.2001. Briefly, the facts were as follows:
“The applicant-respondent-respondent (respondent) made an application, bearing No.75299/89 on 08.09.1987 under the old Maintenance Ordinance of 1899, praying for maintenance for her daughter born on 09.02.1987, alleging that her daughter was born out of a relationship she had with the appellant. The learned Magistrate after inquiry ordered the appellant to pay a sum of Rs. 350/- per month as maintenance. The appellant appealed against that order to the Court of Appeal. The Court of Appeal allowed the appeal on the ground that the respondent had not signed the application made by her in the Magistrate’s Court as required by law. Thereafter the respondent filed a second application on 08.11.1991 bearing No. 97673/ 91.” 
Almost the entire case rested on whether the principle of Res Judicata is applicable. In layman’s terms Res Judicata means that a case that has been tried in a competent court cannot be brought to justice again.
Did Res Judicata apply in this case? The Court of Appeal held that what’s dismissed on technical grounds does not qualify for an exemption under the principle of Res Judicata. The previous two applications filed by the applicant for maintenance had been dismissed on various grounds. In the second instance, it has been dismissed on grounds that the application, though by a mother of an illegitimate child, had not been made on time.
The Court of Appeal judgement held that the new application was made under terms of the new Maintenance Act. It was contended that this Act does away with many of the fetters that are associated with securing maintenance for an illegitimate child.
The Appeal Court order notes:
“Two previous applications had been made with regard to the same child, but both had been dismissed on technical grounds. One was dismissed on the grounds that the application was not made within twelve months of the birth of the child as per the prevailing Maintenance Ordinance.”
Judges of the Court of Appeal held that there was no inquiry held into the matter on which the said application was dismissed. It was dismissed simply on the premise that the applicant had been cohabiting for a considerable period of time with the defendant but had not yet made the application for maintenance in the twelve month period that was allotted for application. But how was this determined? There was no evidence led in any kind of judicial inquiry that would have adduced proof of such. Therefore it was deemed a decision made merely on technical grounds, and therefore it was held that Res Judicata doesn’t apply in this instance.
The Court of Appeal judgement held:
“Accordingly, the two previous maintenance applications filed by the appellant were not decided on the merits. To constitute a judicial decision a res judicata, the decision must be on the merits. It must be a final decision on the merits. As regards decision on merits, Spencer Bower in the “Doctrine of Res Judicata” 3rd edition at page 173, quotes from Lord Brandon (1985) 1W. L. R. 490(1)(House of Lords) at 499.
“A decision on procedure alone is not a decision on the merits. Looking at the matter positively, a decision on the merits is a decision which establishes certain facts as proved or not in dispute, states what are the relevant principles of law applicable to such facts, and expresses a conclusion with regard to the effect of applying those principles to the factual situation concerned”.
The Court of Appeal held that the provisions with regard to Res Judicata or the hearing of a case that ‘has been heard by a competent Court’ does not apply in Maintenance cases as the codified law in the Maintenance Act and the previous legislation on Maintenance both have specific previsions dealing with Res Judicata. Though in Samichi vs Peiris (16 NLR 257) it has been held that it’s the provisions of the Civil Procedure code that count with regard to Res Judicata, nevertheless Supreme Court ruled later that this is not a correct interpretation as it is clear that when the law is codified one cannot go outside the codified law to find law that states something to the contrary.
The judgement further notes:
“The provisions in section 34,207 and 406 of the Civil Procedure Code embrace the principles of res-judicata. It is to be noted that the procedure adopted with regard to applications under the Maintenance Ordinance (now under the Maintenance Act, No. 33 of 1999) is not according to the provisions of the Civil Procedure Code. Shiranee Ponnambalam in Law and Marriage Relationship in Sri Lanka” 1982 publication, at page 274 states as follows:
“It has been held in Anura Perera Vs. Emaliano Nonis, it is not possible to introduce provisions of the Criminal Procedure Code other than those expressly mentioned. By a parity of reasoning it would follow that it is not permissible to introduce provisions of the Civil Procedure Code other than those made applicable by the Ordinance.” Basnayake, C. J. in the case of Herath Vs. Attorney-General countered the position that the whole of our law of res-judicata is to be found in sections 34,207 and 406 of the Civil Procedure Code.
A second Supreme Court judgement overruled the three judge Bench decision that had been made earlier:
Basnayake, C. J. commenting on the decision in Samichi vs. Pieris made the following observations (at 219):
“With the greatest respect to the two most eminent judges who formed the majority I find myself unable to agree that theirs is the proper approach to the interpretation of a Code. The principles of interpretation applicable to a Code are stated in the case of Bank of England vs. Vagliano Brothers 1891(AC 107, 60 LJQB 145). In that case Lord Halsbury stated at 120: I am wholly unable to adopt the view that where a statute is expressly said to codify the law, you are at liberty to go outside the Code so created, because before the existence of that Code another law prevailed.”
Accordingly, the provisions in sections 34,207 and 406 (of the Civil Procedure Code) which embody the doctrine of res-judicata, will not apply to maintenance proceedings, the Court of Appeal ruled in the matter under review.
The objection raised by the appellant was overruled and the proceedings were remitted to the Magistrate’s Court of Kegalle for the learned Magistrate to proceed with the inquiry with regard to the application bearing No. 5473/Maintenance made by the respondent. ‘The respondent will be entitled to the costs of this appeal and also the costs of the appeal in the High Court,’ it was ruled. The appeal was dismissed with costs.
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