N C WHITTON Vs. MAMMAD MAISTRY

JUDGEMENT

(1.) We are asked to revise an order of the 2nd, Class Magistrate of Vayitri, dated 17th March 1915, refusing to direct counter-petitioner under Section 35 of the Madras Planters, Labour Act (1 of 1903) to complete the performance of the contract entered into by him with petitioner. The Magistrate s ground of refusal is that he had already issued one such direction on 18th November 1913, in default of compliance with which counter-petitioner had been convicted and sentenced to two months rigorous imprisonment under Section 24(c) of the same Act. He had in addition been previously tried and convicted under the same section and clause on 28th March 1913 for failure in connection with the same contract. The Magistrate held, following Ponga Maistry v. Emperor 18 Ind. Cas. 415 : 36 M. 497 : 24 M.L.J. 186 : 14 Cr. L.J. 79, that he had no power to make more than one direction: and on this view dismissed petitioner s application.

(2.) Mr. Barton, who appears for petitioner, contends that the ruling above quoted is erroneous; and that apart from such special restrictions as may be involved in the particular contract, there is no limit to the number of successive directions which may be issued under Section 35 or to the number of prosecutions and convictions which may follow in default.

(3.) He has been at pains to explain that his client is prosecuting this petition simply as a test case and is only anxious to have the law on the matter determined. The counter-petitioner is not represented: but the learned Public Prosecutor has been instructed to oppose the petition and support the, Magistrate s order. He has done so not with reference to the abstract question of law on which the order is based: but by arguing that the two previous convictions of counter-petitioner and the previous direction have all been illegal and that for this reason, the direction now applied for should not be granted. We do not think we should be justified in ignoring such points when asked to interfere in revision to counter-petitioner s detriment.