KUSALAGNANA THEROVSASSAJI THERO AND OTHERSCOURT OF APPEALWIMALACHANDRA, J.
CA No. 286/03(LG)
DC MT. LAVINIA 1103/98/LJANUARY 13 AND 21,2004
Buddhist Temporalities Ordinance – Action by Viharadhipathi – Death of Plain-tiff – Civil Procedure Code, section 404 – Substitution as legal respresentative -Original plaintiff had disrobed – Party seeking to be substituted not presentedfor higher ordination by the original plaintiff – Disrobing – Effect – Intention ofleaving priesthood – Is it to be considered?
Plaintiff Nandarama Thero instituted action seeking a declaration that he bedeclared as the lawful Viharadhipathy. Subsequently the priest disrobed.Theperson who sought to be substituted was ordained by Nandarama Thero on12.06.1999. However, Nandarama thero had disrobed on 01.10.1998. Thetrial court allowed the substitution.
cqKusalagnana Thero vs281
Assaji Thero and others (Wimatachandra, J)
Sri Lanka Law Reports
(2005) 1 Sri L R.
The test to be applied in deciding whether a Buddhist priest discardedhis robes with the intention of renouncing the priesthood is whetherthe act of disrobing was done (1) voluntarily and (2) with the intentionof permanently giving up robes.
Per Wimalachandra, J.
“It appears to me that when the said Nandarama Thero disrobed toobtain a photograph as a layman, to apply for a National Identity Card,definitely his intention would have been to give up robes permanently, it is avoluntary act with the intention of permanently giving up robes."
Having given up the intention of leaving the priesthood, and declaringand affirming an affidavit to that effect, he cannot thereafter claim to bea bhikku by putting on robes again. He ought to go through the proce-dure of robing and higher ordination afresh to become a bhikku again.
As Nandarama Thero had disrobed on 01.10.1998, Assaji Thero whowas ordained on 12.06.1999 by Rev. Nandarama. cannot claim to bea pupil of the said Thero,
LEAVE TO APPEAL from an order of the District Court of Mt. Lavinia with leavebeing granted.
Cases referred to :
Somaratna vs Jinaratane – 42 NLR 361
Gooneratne vs Ratnapala Therunnanse Matara case 227 – at -365-364
Premaratne v. Indasara – 40 NLR 235
S.C.B. Walgampaya, P.C. with E.L. Tirimanne for 1st defendant- respondentpetitioner.
W. Dayaratne for 1st respondent.
Cur. adv. vult,
April 29th 2005WIMALACHANDRA, J
The 1st defendant – respondent- petitioner has filed this application forleave to appeal from the order of the learned Additional District Judge ofMount Lavinia dated 24.07.2003.
Kusalagnana Thero vs
Assaji Thero and others (Wimalachandra, J)
Briefly the facts as set out in the petition are as follows —
The plaintiff, Randiligama Nandarama Thero instituted this actionin the District Court of Mount Lavinia for a declaration that he be declaredas the lawful Viharadhipathi of Neelammahara Purana Viharaya, andfor the ejectment of the 1 st, 2nd and 3rd defendants respondents (1 st,2nd and 3rd defendants) and for damages. On the summons returnabledate all three defendants apperared in Court and filed their proxies. TheCourt granted them time to file their answer. In the meantimeKumaragama Assaji Thero of Raja Maha Vihara, Navinna, Maharagamafiled an application on 28.10.1999 under section 404 of the Civil ProcedureCode, and sought that he be substituted in place of the original plaintiffas the legal representative, for the reason that the original plaintiff haddisrobed. The 1st, 2nd and 3rd defendants filed objection to the saidapplication of Kumaragama Assaji Thero (the party seeking to besubstituted as plaintiff) on'the ground that the said Assaji Thero wasnot a pupil of the original plaintiff.
It is the position of the 1 st, 2nd and 3rd defendants that the originalplaintiff the said Randiligama Nandarama Thero disrobed on 01.10.1998and had taken the lay name “ Thotapola Deniya Gedera Asoka Banda”according to the affidavit submitted by him to the Commissioner for theRegistration of Persons to obtain the national identity card as a layperson.
After an inquiry into the application made by the said Assaji Therowho sought to be substituted in place of the original plaintiff, the learnedDistrict Judge made order on 24.07.2003 rejecting the objection of the 1 stto 3rd defendants and allowed the application made by the said AssajiThero. It is against this order that the 1 st to 3rd defrndants have filed thisapplication for leave to appeal. When the matter was taken up for inquiryboth counsel agreed to file written submissions and invited the Court tomake its order on the written submissions and if.the court grants leave toappeal, the parties further agreed that the appeal also be decided on thesame submissions.
The 1st 2nd and 3rd defendants object to the application forsubstitution in place of the original plaintiff on the ground that the saidAssaji Thero was not a pupil of the original plaintiff, as the original plaintiffhad disrobed on 01.10.1998, about 7 1 /2 months before the date of higher
Sri Lanka Law Reports
(2005) I Sri L R.
ordination of the said Assaji Thero and the plaintiff could not have presentedthe said Assaji Thero for higher ordination.
The question to be decided in this application is whether the saidKumaragama Assaji Thero is the pupil of the original plaintiff, RandiligamaNandarama by higher ordination. It is settled law that under the BuddhistEcclesiastical Law pupilage is conferred by robing or by presenting forhigher ordination. The said Assaji Thero claims that he is the pupil of theoriginal plaintiff by higher ordination. According to his Upasampada decla-ration, in column 19, which gives the name of the Bhikku presenting athigher ordination, the name of Randiligama Nandarama Thero appears.The date of higher ordination of the said Assaji Thero is 12.06.1999.
In the circumstances the question for consideration is even thoughthe name of Randiligama Nandarama Thero appears in the declarationregarding Upasampada of the said Assaji Thero (P2) whether the saidNandarama Thero had given up his robes with the intention of disrobinghimself, before the higher ordination of Assaji Thero.
The test to be applied in deciding whether a Buddhist priest dis-carded his robes with the intention of renouncing the priesthood is whetherthe act of disrobing was done :
With the intention of permanently giving up robes.
It was held in the case of Somaratana Vs. Jinaratana' that temporarydisrobing in the emergency of a grave illness does not amount topermanently renouncing the priesthood. In this case Soertsz. J. citedwith approval the view taken by Bonser C.J. and Withers, J. in the case ofGooneratne Vs. Ratnapala Terunansei2] at 365-364 Soertsz, J. said :
“In that case it was held that for disrobing to produce such aresult as is here claimed, it must be voluntary and with a clearintention to renounce the priesthood. It follows that a temporary,and obviously pro forma departure from the priesthood in theemergency of a grave illness cannot produce such a result. Seealso PremaratneV s. Indasaral3>
C/Kusalagnana Them vs285
Assaji Them and others (Wimalachandra, J)
In Premaratne Vs. Indasara (supra) it was held that it is themental element that is of primary importance.”In the instant case the original plaintiff, the said RandiligamaNandarama Thero had disrobed on 01.10.1998. The question is whetherhis act of disrobing on 01.10.1998 had been carried out with the intentionof permanently renouncing the priesthood.
The learned counsel for Kumaragama Assaji Thero, the party seekingto be substituted in place of the plaintiff submitted that the said RandiligamaNandarama Thero disrobed on 01.10.1998 only for the purpose of obtaininga photograph as a laymen to apply for a national identity card and not withthe intention of giving up robes permanently. At the inquiry held in theDistrict Court it was established that the said Nandarama Thero the plaintiff,had affirmed the affidavit marked “F3” wherein he had stated that he disrobedon 01.10.1968. Halwitigala Yasassi Thero who was a Justice of the Peace,before whom the said affidavit marked “F3” was affirmed in giving evidencein the District Court, said, that he saw Nandarama as a layman on thedate of attesting the said affidavit and thereafter he saw him when hecame to give evidence in the District Court also as a layman. It appears tome that when the said Nandarama Thero disrobed to obtain a photographas a layman, to apply for a national identity card, definitely his intentionwould have been to give up robes permanently. As held in Premaratne t/s.Indasara (supra) it is the mental element that is of primary importance atthe time he disrobed. That is whether he had the intention of giving uprobes at the time he disrobed with the clear intention to renounce thepriesthood. In my view it is a voluntary act of the said Nandarama Therowith the intention of permanently giving up robes. This is borne out by theaffidavit (marked “F3”) of the said Nandarama Thero, attested by HalwitigalaYasassi Thero. It reads as follows :
However the said Nandarama, the original plaintiff, gave evidencecontrary to the aforesaid affidavit (F3). At the inquiry he said he disrobed
2S6Sri Lanka Law Reports(2005) 1 Sri L R.
on 28.10.1999. But according to his own affidavit (marked F3) he hadgiven up robes on 01.10.1998. ln“F3?’he had in unequivocal terms affirmedto the fact that he disrobed on 01.10.1998. He had voluntarily given uprobes with the intention of leaving the priesthood permanently. In thesecircumstances having given up robes with the intention of leaving the priest-hood, and declaring and affirming an affidavit to that effect, he cannotthereafter claim to be a bhikku by putting on the robes again. He ought togo through the procedure of robing and higher ordination afresh to becomea bhikku again.
The said Assaji Thero sought to be substituted in place of the origi-nal plaintiff the said Nandarama Thero on the ground that he is a pupil ofthe said Nandarama Thero by presenting him for higher ordination. As theoriginal plaintiff the said Nandarama Thero had disrobed on 01.10.1998.the said Assaji Thero cannot claim that he is a pupil of the said NandaramaThero by higher ordination.
In these circumstances I am of the view that the learned DistrictJudge erred in holding that the said Nandarama Thero disrobed tempo-rarily only to obtain a photograph as a layman for the national identitycard, but thereafter he continued as a bhikku until the date of the higherordination of the said Assaji Thero.
For these reasons I grant leave to appeal. The order of the learnedDistrict Judge dated 24.07.2003 is set aside and the appeal is allowedwith costs. It appears to me that none of the defendants have made anyapplication to substitute all or one of them in place of the original plaintiffwho is now disrobed. Accordingly, if an appliaction is made by a party, thelearned Judge can after holding an inquiry according to law, make an orderwith regard to the substitution in place of the original plaintiff.
Appeal allowed; order set aside.