Present : L. B. de Silva, J., and Abeyesundere, J.T.ARUMAITHURAI and others, Appellants, andV. ARUDCHELVANAYAGAM, Respondent
8. G. 257—D. G. Point Pedro, 49/TR
Hindu temple—Action for settling a scheme of management—Withdrauxil thereof onaccount of defect in Government Agent's certificate—Second action instituted inrespect of same subject matter—Procedure—Trusts Ordinance, s. 102(3).
In an action instituted under section 102 of the Trusts Ordinance to obtain adecree settling a scheme of management for a Hindu temple, there was a formaldefect in the certificate which the Government Agent had purported to issue interms of sub-section (3) of section 102 of the Trusts Ordinance. The action wastherefore withdrawn with liberty to file a fresh action on the same cause ofaction. Thereafter, the present action was instituted with a proper certificatefrom the Government Agent, but for the purpose of the present action noseparate application had been made by the plaintiff , to the Government Agentnor had any fresh inquiry been held by the Commissioner with respect to thatmatter.
Held, that it was not necessary to make a separate application to theGovernment Agent regarding the second plaint which the plaintiffs proposed tofile on the same subject-matter.
At PPEAL from an order of the District Court, Point Pedro.G. Ranganathan, for Plaintiffs-Appellants.
S. Skarvananda, for Defendant-Respondent.
October 31, 1963. L. B. »» Silva, J.—
The plaintiffs filed an action under Section 102 of the Trusts Ordinancepraying that a scheme of management for a Hindu Temple be settled byCourt for vesting the temple and the temporalities on Trustees, that thedefendant be ordered to render an account of the income for the last sixyears, and for damages in Rs. 3,000. These same plaintiffs had previouslyfiled an action on the same cause of action in TR 47 of the District Courtof Point Pedro. That plaint had been filed on the 13th September 1958.Before filing that action, these plaintiffs had made an application to theGovt. Agent under sub-section 3 of Section 102 setting out the subjectmatter of the plaint which they proposed to file. This matter was dulyreferred by the Govt. Agent to a Commissioner who inquired into thatdispute and the Govt. Agent had issued a certificate in terms of the sub-section. However, there was a formal defect in the certificate that theGovt. Agent had issued in that he had failed to certify that the Com-missioner had reported that the subject matter of the plaint was one thatcalled for the consideration of the Court and that it had not provedpossible to bring about an amicable settlement of the questions involved.In that certificate, the Govt. Agent himself had certified on these matters.In view of the objection taken to the validity of the certificate tie previousaction was withdrawn with liberty to file a fresh action on the same causeof action. Thereafter, the present action has been filed with a certificatefrom the Govt. Agent complying with the provisions of sub-section 3 ofSection 102 upon the same cause of action, but for the purpose of thepresent action, no separate application had been made by the plaintiffs tothe Govt. Agent nor had any fresh inquiry been held by the Commissionerwith respect to that matter.
The question for decision in this appeal is whether on the originalpetition which the plaintiffs had filed under sub-section 3 and upon theinquiry by the Commissioner and the certificate given by the Govt. Agentthe present action could have been filed in terms of sub-section 3 orwhether the effect of the earlier application and proceedings wereexhausted by the fact that the previous action was filed and was dismissedas stated earlier. The learned District Judge upheld the objection by thedefendant and dismissed the plaintiff’s action on this preliminary issuewhich was argued before him.
We, however, are of the view that it was not necessary to make aseparate application to the Govt. Agent with respect to each plaint thatthe plaintiffs proposed to file on the same subject matter. In this instance,there was a compliance with the provisions of sub-section 3 because anapplication had been made to the Govt. Agent setting out the subjectmatter of the action which the plaintiffs proposed to file. In fact a copyof the proposed plaint was submitted to him and the plaints in the firstaction and in the second action were the same. The Commissioner hadinquired into that matter and made a report to the Govt. Agent and theGovt. Agent has given the certificate as contemplated in this sub-section.A similar objection, but under Section 461 of the Civil Procedure Code wastaken in S. C. 649/€0(F) D. C. Trincomalee 6131 and this Court has held inthat case that a separate notice under that Section was not required inrespect of every plaint filed upon the same cause of action. The findingin that case will be applicable to a construction of the provisions of sub-section 3 of Section 102 of the Trusts Ordinance so far as the presentobjection of the defendant is concerned.
We, therefore, set aside the order made by the learned District Judgeupholding the objection of the defendant and dismissing plaintiff’s actionwith costs and send this case back for trial on the remaining issues.Issues 9 and 10 are answered in favour of the plaintiff. The plaintiff isentitled to the costs of the proceedings in the District Court on 25.5.61and costs of this appeal.
Abe yes und ere, J.—I agree.
Order set aside.
T. ARUMAITHURAI and others, Appellants, and V. ARUDCHELVANAYAGAM, Respondent