Sri Lanka Law Reports
[1998J 3 Sri LR.
COURT OF APPEALWEERASURIYA, J„
DE SILVA, J„
A. NO. 263/96
C. AVISSAWELLA NO. 19322/LOCTOBER 27, 1998
Civil Procedure Code – SS 85 (4), 86 (2), 404 – Viharadhipathi – Declaration- Ex parte – Defendant no longer a priest – Decree served on defendant in thecapacity of a layman – Substitution – Refused.
The plaintiff respondent instituted action seeking a declaration that he was theViharadhipathi of temple 'S’ and sought the ejectment of the defendant. OneSoratha Thera moved Court to substitute himself in the room of the defendanton the ground that the defendant had disrobed himself. No Order was made onthis application. The matter proceeded ex parte, and when the Fiscal reportedthat the Defendant had disrobed himself. Court made order to serve the decreeon the Defendant in the capacity of a layman. The plaintiff-respondent filed aMotion, moving for writ and stating that no inquiry in respect of the Applicationof Rev. Soratha was necessary. The petitioner moved Court to be substitutedin place of the defendant. The Application was refused.
The failure of Court to make an order on the application of Rev. Sorathawho claimed to be the Viharadhipathi had the effect of overlooking afundamental issue upon the maintainability of the action to a change ofstatus of the defendant due to disrobing.
The plaintiff was under a duty to take steps in terms of the provisionsof cap. XXV CPC.
Dhammasiri Thero v. Sugatha Them (Weerasuriya, J.)
The order to serve the ex parte decree on the defendant, in his newcapacity as a layman when he was sued on the basis of holding wrongfullythe position of Viharadhipathi of the temple in suit is wrong.
APPLICATION in Revision from the Order of the District Court of Avissawella.
Cases referred to :
Gooneratne v. Perera – 2 NLR 185.
Kulasekera Appuhamy v. Malluwa – 28 NLR at 249.
Punnanda v. Welivitiya Soratha, 51 NLR 372.
Dammaratena Unnanse v. Sumangala Unnanse – 14 NLR 402.
J.W. Subasinghe, PC with G. L. Geetananda for the petitioner-petitioner.Gamini Marapona, PC with Nishanthi Mendis for the plaintiff-respondent.
Cur. adv. vult.
December 18, 1998.
The plaintiff-respondent (hereinafter referred to as the plaintiff) byplaint dated 29.08.94 instituted action against Makure Vijithasiri Thero(hereinafter referred to as the defendant) seeking a declaration thathe was the Viharadhipathi of Sri Vidya Sanwardanarama Viharayamorefully described in the schedule to the plaint, ejectment of thedefendant therefrom and damages. The defendant, having served withsummons by his proxy filed in Court appointed Chandrani Ranawaka,Attorney-at-law to appear on his behalf and he was permitted to fileanswer on 05.06.95. On 05.06.95, an Attorney-at-law by the nameof Wijemanna tendered a proxy along with a petition and affidaviton behalf of Hisselle Soratha Thero praying that he be substitutedin place of the defendant on the ground that the defendant haddisrobed himself. The plaintiff opposed this application and he wasgranted time till 31.07.95 to file objections. Attorney-at-law for the
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 3 Sri LR.
defendant also moved for time to seek further instructions from thedefendant and she was given time till 31.07.95 to file answer. On
plaintiff filed his statement of objections and the defendantwas given further time till 23.08.95 to file answer. However, on
Attorney-at-law for the defendant informed Court that, shehad no instructions from the defendant and upon the application ofthe plaintiff, the case was fixed for ex parte trial on 10.09.95. Thecase proceeded to trial ex parte on 26.10.95 and the Additional DistrictJudge by her judgment dated 15.11.95 entered judgment for theplaintiff. Thereafter the fiscal reported that the defendant had disrobedhimself and the Additional District Judge made order to serve thedecree on the defendant in the capacity of a layman after his newaddress was furnished by the plaintiff. Thereafter, ex parte decreewas served on the defendant on 21.12.95 as evident from the journalentry dated 12.01.96 and the plaintiff filed an application for a writof exection. Further, the plaintiff on 06.02.96 filed a motion with acopy of the death certificate of Hisselle Soratha Thero and movedfor a writ alleging that no inquiry in respect of the application of HisselleSoratha Thero was necessary. On 12.02.96, the petitioner-petitioner(hereinafter referred to as the petitioner) by his petition and affidavit,prayed that he be substitute in place of the defendant and the learnedAdditional District Judge by her order dated 29.03.96, refused thisapplication. It is from the aforesaid order of the Additional DistrictJudge that the present application for revision has been filed.
At the hearing of this application, learned President's Counselappearing for the petitioner, presented the case of the petitioner asfollows:
that the learned Additional District Judge had erred in fixing thecase for ex parte trial;
That the learned Additional District Judge had erred by directingthe ex parte decree to be served on the defendant, when hehad disrobed himself; and
Dhammasiri Them v. Sugatha Them (Weerasuriya, J.)
that the learned Additional District Judge had misdirectedherself by holding that section 86 (2) of the Civil ProcedureCode was applicable.
Learned President's Counsel appearing for the plaintiff submittedthat the learned Additional District Judge had rightly held that thepetitioner was not entitled to relief in terms of section 86 (2) of theCivil Procedure Code.
It would be seen that Hisselle Soratha Thero by his petition andaffidavit, made an application to Court on 05.06.95 that the defendanthad disrobed himself and that he be substituted as the defendanton the basis that he was the Viharadhipathi of the temple in suit.To this application, the plaintiff filed his statement of objections on
It is to be observed that the learned Additional District Judgehad failed to appreciate the need and the significance of making anorder on this application before she could make an order for ex partetrial upon the application of the plaintiff on 23.08.95.
Learned President's Counsel for the plaintiff submitted that thedefendant had disrobed on 01.12.95 as evident from an endorsementin his Upasampada declaration. It is to be noted that, this documentand other documents tendered by the petitioner to counter this positionhad not been produced in the District Court. It seems to me that whatis significant is the application made by Hisselle Soratha Thero on
praying that he be substituted as the defendant due to thechange of status of the defendant, as he had ceased to be a Buddhistpriest. The application of Hisselle Soratha Thero was kept in abeyance,when in fact the question of the status of the defendant to participatein the action was in issue. The failure of the learned District Judgeto make an order on that application had the effect of overlookinga fundamental issue upon the maintainability of the action owing toa change of status of the defendant due to disrobing.
It is appropriate at this point to refer to section 404 of the CivilProcedure Code which is in the following terms :
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“404 – In other cases of assignment, creation or devolution ofany interest pending the action, the action may, with the leave ofthe Court given either with the consent of all parties, or afterservice of notice in writing upon them, and hearing theirobjections, if any, be continued by or against the person to whomsuch interest has come, either in addition to or in substitution forthe person from whom it has passed, as the case may require."
In the case of Gooneratna v. Perera01 at 185, Kulasekera Appuhamyv. Malluwa® at 249 it was laid down that pending the action in Section404, mean during the progress of the suit and before the passingof the final decree.
The Additional District Judge had observed that pupils of thedefendant could have made an application in terms of section 404of the Civil Procedure Code when the defendant disrobed himself.However, it is to be observed that when in fact, Hisselle Soratha Theropurporting to be the Viharadhipathi, made an application to have himsubstituted in place of the defendant, learned Additional District Judgefailed to make an order on that, before she made order to fix thetrial ex parte.
In the circumstances, it seems to me that Additional District Judgewas in error when she failed to inquire into the application of HisselleSoratha Thero to have him substituted in place of the defendant beforethe order was made for ex parte trial.
It is noteworthy that after the conclusion of the evidence by herjudgment dated 16.11.95, Additional District Judge directed to servethe ex parte decree on the defendant. Pursuant to this direction, thefiscal reported that the defendant had disrobed and thereupon theAdditional District Judge directed that the ex parte decree should beserved upon the defendant in his new address in his capacity as alayman.
CADhammasiri Them v. Sugatha Them (Weerasuriya, J.)393
Section 85 (4) of the Civil Procedure Code provides that the Courtshall serve a copy of the decree on the defendant in the mannerprovided for the' service of summons and that such copy shall bearan endorsement that any application to set aside the decree shallbe made to Court within fourteen days of such service. Thus, it wouldappear that it is a mandatory requirement to have the ex parte decreeserved on the defendant who could thereafter within 14 days as ofright could appear in Court and make an application to have suchdecree set aside on satisfying Court that he had -reasonable groundsfor Such default. It was contended that the defendant did not availhimself of the opportunity so afforded to purge his default.
The question that arises is whether, the defendant in the instantcase could have appeared in Court within 14 days of the service ofthe ex parte decree, when Hisselle Soratha Thero had explicitly statedin his affidavit that the defendant had disrobed. The defendant's actof giving up the priesthood consequent upon disrobing was neverdisputed. However, if the question was, as to the effective date ofdisrobing, such matter could have formed the basis of an inquiry bythe Additional District Judge. Further, the question whether or notHisselle Soratha Thero had locus standi to make the applicationcould have been inquired into and a decision made thereon.
It is relevant to refer to the observations of Windham, J. inPunnananda v. Weliwitiye Soratha(3) at 376 on the effect of disrobingas follows:
"Disrobing with the intention of giving up the priesthood, is theequivalent, ecclesiastically, of personal demise and it does notentail, any more than death entails, an abandonment of rights, butmerely a personal incapacity to exercise them. These rights canaccordingly descend to a pupillary successor."
It was held in Dammaratana Unnanse v. Sumangala Unnansd41that the fact that a tutor disrobes himself for immorality or other reasondoes not affect the pupil's status as regards the right of pupillarysuccession.
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In the circumstances, Additional District Judge was in error whenshe made order to serve the ex parte decree on the defendant, inhis new capacity as a layman, when he was sued on the basis ofholding wrongfully the position of Viharadhipathi of the temple in suit.The Additional District Judge was possessed of material that thedefendant had disrobed himself from 05.06.95 on the informationfurnished by Hisselle Soratha Thero and by the fiscal in his report.
Therefore, the plaintiff was under a duty to take steps in termsof the provisions of chapter XXV of the Civil Procedure Code. TheAdditional District Judge had come to a finding that the defendanthad failed to take steps in terms of section 86 (2) of the CivilProcedure Code to purge his default. It would appear that AdditionalDistrict Judge was in error when she made a finding that provisionsof section 86 (2) would apply.
For the foregoing reasons, I set aside the orders of the DistrictJudge dated 29.03.96 and 23.08.95 and proceedings thereafter anddirect that the petitioner be substituted in the room of the defendantand to permit him to tender his answer and proceed with the actionthereafter in accordance with the law.
I allow the application with costs.
DE SILVA, J. – I agree.
DHAMMASIRI THERO v. SUGATHA THERO