Thamotherampillai v. Ramalingam.
1932Present: Garvin and Dalton JJ.
THAMOTHERAMPILLAI v. RAMALINGAM et al.
274—D. C. Jaffna, 21,021.
Trusts Ordinance—Action by manager of a Hindu temple—Failure to obtain avesting order before action—Relief given by Court to obtain such anorder—Plaintiff's defect of title not cured—Defendant's acquiescence inorder—Right of appeal—Ordinance No. 9 of 1917, s. 112.
Plaintiff as the joint manager of a Hindu temple asked for a declara-tion that the first defendant was not entitled to a right of way over.thecourtyard of the temple.
The' defendant pleaded that the plaintiff was not entitled to maintainthe action without first obtaining a vesting order under section 112 ofthe Trusts Ordinance.
At the conclusion of the case, the District Judge reserved judgmentand then made order giving plaintiff an opportunity to obtain a vestingorder under the Ordinance.
Held, that the plaintiff was not entitled to cure the defect of his titleby obtaining a vesting order after the institution of the action.
Held, further, that under the circumstances the failure of the defendantto appeal from the order giving plaintiff time to obtain a vesting ordercannot be regarded as an acquiescence on his part to this order whichwould preclude him from raising the question in appeal.
^i^PPEAL from a judgment of the District Judge of Jaffna.
H. V. Perera, for defendant-appellant.
JJ. E. Weerasooria (with him E. B. Wickramanayaka), for plaintiff-respondent.
i 14 N. L. R. 276.
GARVIN J.—Thamotherampillai v. Ramalingam.
September 1, 1932. Garvin J.—
The plaintiff in this action sought a declaration that the first defendantis not entitled to a right of way over what was described as the souther^courtyard of the temple referred to in the plaint. The first defendantin his answer pleaded upon the merits that he was entitled to such aright of way and as a matter of law pleaded that the plaintiff could notmaintain the action as the temple and its properties were not vestedin him. The case went to trial upon a number of issues, among themthe following:—Can the plaintiff maintain this action without obtaininga vesting order under section 112 of the Trusts Ordinance. The plaintiff,I may here say, claimed to be joint manager with the second defendantwho evidently was made a party because he refused to join the plaintiffin bringing this action. The case went to trial and evidence was recordedon two reparate days of trial before a District Judge who apparentlyleft the station before the determination of the case. It was continuedbefore the District Judge who ultimately gave judgment in this case,the parties agreeing that the earlier proceedings should form part of therecord of the trial. At the conclusion of the case the learned DistrictJudge reserved judgment and then made an order upholding the firstdefendant’s contention that the action was not maintainable by theplaintiff. He decided, however, that he would give the plaintiff anopportunity to obtain a vesting order under the provisions of the TrustsOrdinance evidently upon the assumption that if the plaintiff succeededin obtaining such an order it would in its effect date back to the dateupon which this action was instituted and thus remove the defects oftitle upon which the first defendant based his contention that the actionwas not maintainable.
With the learned District Judge’s conclusion that the action was notmaintainable by the plaintiff I entirely agree, but I cannot, however,agree that the effect of obtaining after trial a vesting order would beto entitle the plaintiff to the relief he claimed, provided, of course, thatin other respects he showed his right to such relief. It is a well establishedprinciple of law that the rights of parties must be determined as at thedate of the action. Clearly, at the date of this action the plaintiff hadno right to maintain it. There is nothing in the Trusts Ordinance or inany other provision of any law that I am aware of which states that a,person may bring such an action in respect of temple property and atsome subsequent date clothe himself with title to the property by obtain-ing a vesting order and notwithstanding defects of title at the time ofthe institution of the action is entitled to escape from the consequences,of bringing an action at a time when he had not the right todo so.
It was urged by counsel for the respondent that the order made by theDistrict Judge, which is dated February 15, 1929, is an order from whichthe defendant should have appealed without waiting till after the plaintiffhad obtained his vesting order, and the Judge had delivered his laterjudgment, dated June 18, 1931, in which he dealt with all the'othepissues in the case. In the earlier order, the learned District Judge,having decided that the plaintiff was not entitled to maintain the action
GARVIN J.—Thamotherampillai v. Ramalingam.
and having also elected to give him an opportunity to obtain a vestingorder under the provisions of the Trusts Ordinance, stated as follows: —" Let the case be mentioned on the 27th instant. If by that time plaintiffhas taken steps under section 112 of- the Trusts Ordinance, this case willbe laid by till after the results of his steps. If no such steps are taken onor before the 27th, action will be dismissed with costs.” While I agreethat this is an order which was appealable and from which it mightperhaps have been as well for the defendant to have appealed at the firstinstance, it remains to be considered whether the defendant has deprivedhimself of his right to appeal from the consequences of this order, merelybecause he did not do so at a time at which he might have entered anappeal had he been so minded. A party is not, of course, bound to appealfrom every interlocutory order and has the right to exercise his right ofappeal upon all points when the proceeding in the Court below is deter-minded by a final judgment. But there are cases of this Court in whichit has been strongly indicated that it would be competent for the Appea/Court in certain circumstances, where a party fails to appeal frominterlocutory order which goes to the root of his case, to hold that he mustbe taken to have acquiesced in that order. In this case the only questionfor us, therefore, is whether it could fairly be said that the defendanthas acquiesced in this order and is, therefore, debarred from inviting uato consider at this stage whether or not the learned District Judge wasright. This is not a case in which by reason of the failure of the defendantto appeal from the interlocutory order further and lengthy proceedingsrelating to the maters in dispute were occasioned, or where in consequenceof the reversal of the order made by the learned District Judge, furtherproceedings or a further trial have been rendered necessary. The effectof the order was merely to suspend further proceedings, and if theplaintiff failed within ten days of the order to avail himself of this previousorder, judgment would automatically have been entered dismissing hisaction; and, thereafter, if somebody else and not the plaintiff wasvested with the property of the temple his action would again fail.Apart from the steps taken by the plaintiff in a separate proceedingto vest himself with title no step in prosecution of this action was taken.What happened was that immediately the plaintiff obtained his vestingorder, the record was sent to the District Judge, before whom this trialtook place and he thereupon wrote the judgment which was deliveredin this case. I do not think that, in these circumstances, we can holdthat the defendant acquiesced in the order of the District Judge, whichappears to have been made as has been already stated on the assumptionthat if the plaintiff availed himself of the opportunity accorded to himand obtained a vesting order he would be entitled to the remedy claimedby him.
For these reasons, I would set aside the judgment of the learnedDistrict Judge, and direct that the plaintiff’s action be dismissed withcosts both here and in the Court below.
Dalton J.—I agree.
THAMOTHERAMPILLAI v. RAMALINGAM et al