Dhammananda There ». Saddananda !Thero299
1977Present: Pathirana, J., Malcolm Perera, .J. and ,;Wanasundera, J.
MEDDEGAMA DHAMMANANDA THERO, 1st Defendant-Appellant and Another
DEKATANA SADDANANDA THERO, Plaintiff-RespondentS.C. 136/70 (F)—D.C. Gampola, 11011/L
Buddhist Eccelesiatical Law—Action for declaration that plaintiffViharadhipathi of Buddhist Temple—-Nature of such action—Death of defendant—Does action abate—Scope and applicabilityof maxim “ actio personalis moritur cum persona ”—CivilProcedure Code, sections 392,404—Buddhist Temporalities
Ordinance (Cap. 318) section 20.
Plea of res judicata by defendant—Validity thereof—Decision of MahaSangha Sabha—Irregularities in proceedings at inquiry—Violationof rules of natural justice—Can such decision be acted upon—^Abandonment of right to be Viharadhipathi—Evidence giventhereof by such priest—Plea of prescription—Imposter cannotacquire title to incumbency by prescription.
The plaintiff filed this action against the original 1st defendant(since deceased), the 2nd (also since deceased) and the 3rd defen-dants claiming to be the lawful Viharadhipathi of the MahaloluwaPurana Vihare. He asked for a declaration that he was the rightfulViharadhipathi, for an order ejecting the defendants from the saidTemple and for damages. The mode of succession applicable wasthe sisyanu sisya paramparawa. The 2nd defendant died duringthe trial in the District Court but it was agreed by Counsel appear-ing for the parties that no substitution was necessary as he hadbeen sued as an agent of the 1st defendant and the action againsthim had abated on his death. The trial proceeded against the 1stand 3rd defendants only. After trial, judgment was entered infavour of the plaintiff as prayed for but without an order fordamages. The 1st and 3rd defendants appealed.
During the pendency of the appeal the 1st defendant-appellantdied and the record was returned to the District Court for substitu-tion. Thereafter, the 3rd defendant filed petition and affidavitobjecting to any substitution on the ground that the action by theplaintiff being a personal action to establish the right to an officeabated on the death of the 1st defendant. Reliance was placed onsection 392 of the Civil Procedure Code. At the inquiry into theseobjections no order for substitution was made and the record wasreturned to the Appellate Court at the request of both Counsel. Itwas submitted there by Counsel for the 3rd defendant-appellantrelying on the Divisional Bench judgment of Dheerananda Therav. Ratnasara Thera that the suit had abated on the death of the1st defendant, inasmuch as the cause of action was purely personal.
Dhammananda Them v- Saddananda Thero
It was submitted on behalf of the plaintiff-respondent thatalthough tne plaintiff had sued for a declaration to the office ofViharadhipathi the plaint showed that it was in substance anaction both for the office of Viharadhipathi and the temple and itstemporalities. The action could therefore continue after the death ofthe 1st defendant in view of the provisions of section 404 of the CivilProcedure Code as on the assumption that the 1st defendant wasthe Chief Incumbent of the temple, by operation of law there wasa creation or devolution in favour of his successor in title. It wassubmitted further that there was a distinction between section 392which referred to the necessity for identity of causes of action for anaction to survive and section 404 which referred to the identity ofinterests which enable the causes of action to continue. Finally itwas submitted that by reason of the refusal to substitute thesuccessor of the deceased 1st defendant on whom the interests devol-ved, the appeal of the 1st defendant had abated.
Held:(1) That in an action for declaration of title to the
office of Viharadhipathi of a temple, on the death of the plaintiff orthe defendant (if he too claimed to be the Viharadipathi) the actioncan be continued by or against the successor-in-title under section404. The maxim actio personalis moritur cum persona will not applyin such a case to abate the action. The action though in form anaction for a status or an office is in substance an action for a templeand the temporalities which by operation of law belong to theViharadipathi of the temple.
(2) That inasmuch as no substitution Jrad been made in place ofthe deceased 1st defendant-appellant this appeal stood abated.
Per Pathirana J. : “ I have next to consider the applicability of themaxim in relation our law particularly Chapter XXV of the CivilProcedure Code which relates to continuation of action after altera-tion of a party’s status and examine to what extent the maxim ismodified by statute. In considering this question I have also to keepin mind two other relevant maxims of equal importance in relationto litigation. The first is the maxim “ interest reipublicae ut sit finislitium,” viz. the general interests of the community in the termina-tion of disputes and in the finality and conclusiveness of judicialdecisions, and secondly, the maxim “Nemo debet bis vexari pro unaet eadem causa ”, viz. the right of an individual to protected fromvexatious multiplication of suit.
In fact the aim and purpose of the Civil Procedure Laws of thiscountry are primarily directed to the speedjr and final determinationof all actions and the avoidance of multiplication of action exceptin exceptional circumstances. It is not in dispute in this case thatthe Civil Procedure Code applies.
Chapter XXV which refers to continuation of actions and thesections in the Code relating to res judicata are the principle mediaby which this aim and purpose is sought to be achieved. Whereverpossible every reasonable construction must be placed which wouldhelp the Court to continue the action rather than see the actionabated or force a party on whom a deceased party’s interests de-volved to resort to fresh litigation with the attendant expense anddelay such a process necessarily involves.”
Dheerananda Thero v. Ratnasara Thero, 60 N.L.R. 7, distinguished.
Inasmuch as the 3rd defendant in this action had in his answerdenied the plaintiff’s title to the said temple the Appellate Courttook the view that it was incumbent on the plaintiff to establishhis title not only against the 1st defendant but also against the 3rddefendant. Submissions on behalf of the 3rd defendant-appellantwere also therefore heard.
Dharnmonanda Thero v. Saddananda Thero
The 1st defendant-appellant had at the trial urged that thefinding in an earlier action 3102/L, operated as res judicata againstthe plaintiff in regard to his right to the incumbency of the temple.This was on the basis that one Vajiragnana Thero, the tutor ofthe plaintiff who the plaintiff claimed was the eldest pupil ofDhammarakkita Thero was a party to that action. It was commonground that Dhammarakkita Thero had been Viharadipathi of thistemple until his death in 1933.
Held : (3) That the said decree did not operate as res judicata-as Vajiragnana Thero was not a party to that action.
The question was also raised as to whether the 1st defendant-appellant or the said Vajiragnana Thero was the senior pupil ofDhammarakkita Thero. The learned District Judge had held thatit was Vajiragnana Thero and that the 1st defendant was in factthe pupil of one Seelaratana Thero.
Held : (4) That on an examination of the evidence in this case thelearned trial Judge was right in holding that the 1st defendant-appellant was not the pupil of Dhammarakkita Thero but was apupil of Seelaratana Thero.
On the question of whether Vajiragnana Thero was the seniorpupil of Dhammarakkita Thero as claimed by the plaintiff, the 1stdefendant-appellant’s position had been that Dhammarakkita Theroduring his life time had dismissed Vajiragnana Thero from hispupilage. He also relied on a decision of the Maha Sangha Sabhamade on 2.11.47 to the effect that Vajiragnana Thero though ordainedby Dhammarakkita Thero was not robed by him. The 1st defendant-appellant had also claimed title to the Viharadhipathiship byprescription.
Held : (5) That on the evidence Vajiragnana Thero was and re-mained the pupil of Dhammarakkita Thero. The decision of the MahaSangha Sabha relied on by the 1st defendant-appellant could not be-acted upon inasmuch as there were such substantial irregularities inthe procedure at the inquiry and also a violation of the principles ofnatural justice, that little reliance could be placed on this decision,even assuming that the Tribunal had jurisdiction to consider thethe matter. This decision did not in any event act as an estoppel or-res judicata against the plaintiff’s claim that Vajiragnana Thero was-the pupil of Dhammarakkita Thero.
(6) That the plaintiff’s claim that he was the successor-in-title•of Vajiragnana Thero to the incumbency should be upheld.Gnanawasa Thero who was the senior pupil and who gave evidenceon this point for the plaintiff had clearly abandoned his rights tothe Viharadipathiship.
Held further : That the 1st defendant’s claim to be entitled tothe Vi
MEDDEGAMA DHAMMANANDA THERO, 1st Defendant-Appellant and Another and DEKATANA