Sri Lanka Law Reports
 2 Sri LR.
v.REV. GUNARATHANA THERO
COURT OF APPEALWEERASURIYA, J., ANDDISSANAYAKE, J.
CA NO. 453/89 (F)
DC PANADURA NO. 18846/LJUNE 14. 2000
Civil Procedure Code s. 392 – Action based on personal rights – Declaration ofa status – Does it abate upon proof of disrobing – Ecclesiastical demise.
The plaintiff-respondent instituted action seeking a declaration of his allegedstatus as incumbent.-Trial commenced on 12. 02. 1986, concluded on 3. 3. 1989and judgment was delivered on 26. 9. 1989 in favour of the plaintiff-respondent.Before the judgment was delivered the plaintiff-respondent had given up robes.
It is manifest that this action being an action to establish personal rightto an office abates upon proof of disrobing.
The subsequent proceedings of continuing with the action and thedelivery of the judgment is not permissible for want of jurisdiction -Subsequent proceedings constitute an illegality and not a mere proceduralirregularity.
APPEAL from the judgment of the District Court of Panadura.
Cases referred to:
Punnananda v. Weliwitiye Soratha – 51 NLR 372 at 376.
Ramasarup Das v. Rameshwar Das – 1950 AIR (Patna) 134.
Deerananda Thero v. Rathanasara Thero – 60 NLR 7.
P. A. D. Samarasekera, PC with Kirthi Sri Gunawardane for defendant-appellant.Plaintiff-respondent – absent and unrepresented.
Cur. adv. vult.
Jayaratne v. Rev. Gunarathana Them (Weerasuriaya, J.)
October 07, 2000WEERASURIYA, J.
Learned President's Counsel appearing for defendant-appellantsubmitted that the plaintiff-respondent had given up robes and ceasedto be a Buddhist monk from 02. 05. 1989 and since that date livingas a layman. A certified copy of the declaration regarding upasampadaof the plaintiff-respondent has been produced marked X. In cage 23thereof there is a remark to the effect that the said declaration hadbeen amended upon intimation by the Mahanayake Priest thatMoratuwe Gunarathana Thero gave up robes on 02. 05. 1989 andbecame a layman.
Trial in this case which commenced on 12. 02.1986 was concludedon 03. 03. 1989 and the judgment was delivered on 26. 09. 1989in favour of the plaintiff-respondent. However, in terms of the extractof the Upasampada declaration marked X, the plaintiff-respondent haddisrobed on 02. 05. 1989 as evidenced by the entry in cage 23 thereof.Therefore, before the judgment was delivered on 26. 09. 1989, theplaintiff-respondent has disrobed.
It was observed in Punnananda v. Welivitiye Sorathat'} that –
"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 incapacity to exercise them. These rights can accordinglydescend to a pupillary successor."
In terms of section 392 of the Civil Procedure Code whichprovides for continuation of actions after alteration of a party's status,the death of a plaintiff or defendant shall not cause the action to abateif the right to sue on the cause of action survives. Therefore, converselyif the right to sue or the cause of action does hot survive on thedeath of either the plaintiff or the defendant, it would cause the actionto abate.
Sri Lanka Law Reports
[2002/ 2 Sri LR.
The following observations in the Indian case Ramasarup Das v.Rameshwar DasP> are relevant in examining this question:
"If a plaintiff is suing to establish his right to a certainproperty in his own rights and not by virtue of his office,certainly the cause of action for the suit will survive, and hislegal representative can continue the suit on the death of theoriginal plaintiff, either during the pendency of the suit or ofthe appeal. But, where the plaintiff's suit is primarily to establishhis personal right to an office which would entitle him topossession of the property in question, on his death, eitherduring the pendency of the suit or during the pendency ofthe appeal, the right to sue would not survive, and the suitwill therefore abate."
In the instant case, undoubtedly action was instituted based on'personal rights seeking a declaration of his alleged status as incumbentand the claim for the ejectment of the defendant was purely incidentalto the question of incumbency.
Therefore, the question to be examined relating to the effect ofdisrobing by the plaintiff-respondent is two-fold namely, whether theaction abated in terms of section 392 of the Civil Procedure Codeand whether the proceedings thereafter constituted an illegality andnot a curable procedural irregularity.
It is manifest that this action being an action to establish personalright to an office abates upon proof of disrobing by the plaintiff-respondent which is equivalent to ecclesiastical demise. Thesubsequent proceedings of continuing with the action and thedelivery of the judgment is not permissible for want of jurisdiction.In the circumstances, subsequent proceedings constitute an illegalityand not a mere procedural irregularity. (vide Deerananda Thero v.Rathanasara Therd31).
Therefore, I proceed to set aside the judgment delivered on.26. 09. 1989.
DISSANAYAKE, J. – I agree.
JAYARATNE v. REV. GUNARATHANA THERO