Sugathananda Thera Vs. Ajith Bodinagoda and others
SUGATHAANANDA THERAVS.AJITH BODINAGODA AND OTHERSCOURT OF APPEAL.
DC 1658/02/LOCTOBER 18. 2004,
JUNE 6, 2005.
Civil Procedure Code section 16- Injunctive relief sought – Maintainability
Plaintiff not a juristic person – Can an unregistered/unincorporated societysue?-Trust Ordinance – Section 5(1) – Instrument to be notarially executed
Is YMBA Wellawatta a juristic person?-Locus.
Sri Lanka Law Reports
(2006) 3 Sri LR.
The Plaintiff – respondents all describing themselves as officials of theWellawatta YMBA filed action alleging that the defendant was unlawfullyconstructing buildings protruding on to the land belonging to the plaintiffand sought an interim injunction and for a declaration that they are entitledto use the said land without any hindrance. Enjoining order was issued.
The defendant petitioner sought leave to appeal from the said order.
It was contended by the defendant petitioner that –
the plaintiffs cannot maintain the action without complying withsection16 of the Code.
that there is a valid trust existing as set out in the plaint.HELD:
Where there are numerous parties having a common interestin bringing or defending an action, one or more of such partiesmay with the permission of Court sue or be sued or maydefend in such an action on behalf of all parties so interested.The Court shall in such case give at the expense of the partyapplying so to sue or defend, notice of the institution of theaction to all such parties either by personal service or bypublic advertisement as the Court may direct.
There has been absolute non compliance with the provisionsof section 16 by the plaintiff respondent.
YMBA (Wellawatta) is not a juristic person. There is nocertification or registration under the Societies Ordinance. Insuch a situation the persons named as the officials of theWellawatta YMBA is legally non existent and would have nolocus standi.
Sugathananda Thera l/s. Ajlth Bodinagoda and others
Even an unregistered/incorporated society can sue/be suedprovided that the procedure set out in section 16 is followed.
There is no trust instrument. If there is a trust, in accordancewith section 5(1) of the Trust Ordinance, the instrument hasto be notarially executed, which requirement has not beenfulfilled.
The plaintiff – respondents are neither – trustees nor a juristicpersons.
APPLICATION for leave to appeal from an order of the District Court ofMt. Lavinia with leave being granted.
D. P. Mendis PC with Nadeera Gunawardena for defendant – petitioner.
Ranjan Suwandaratne with Ranjith Perera for plaintiff – respondent.
Cur. adv. vult.
June 21, 2006.
The Defendent – Appellant (hereinafter referred to as ‘the Appellant’)has tendered this leave to Appeal application seeking leave to appealagainst the order of the learned Additional District Judge of MountLavinia dated 31.10.2001 and inter – alia other reliefs as sought for inthe prayer to the Petition. The facts of the case are briefly as follows:The Plaintiff – Respondents (hereinafter referred to as ‘theRespondents’) all describing themselves as officials of the WellawatteY. M. B. A. filed action in the District Court of Mt. Lavnia alleging thatthe defendant namely the Venerable U. M. Sugathananda Thero(Appellant) a Buddhist Priest was unlawfully constructing buildingsprotruding on to the land belonging to the ‘Plaintiffs' and disturbing thePlaintiffs (Respondents) of their quiet possession of their land and
Sri Lanka Law Reports
(2006) 3 Sri L R
prayed for an Interim injunction and/or Enjoining Order restraining theDefendant, and for a declaration that they are entitled to use theaforesaid land without any hindrance.
The learned Additional District judge issued an Enjoining order asprayed for against which the Defendant (Petitioner) filed objectionsand sought that it be dissolved. The Defendant's (Petitioner's)Application was refused with regard to which the defendant – Petitionerhas tendered this application before this Court. On 13.12.2004 thisCourt granted leave to Appeal on the following questions of law:
Whether the Plaintiffs in DC Mt., Lavinia Case No. 1658/02/1can maintain this action without complying with the provisionsof Section 16 of the Civil Procedure Code.
Whether there is a Valid Trust existing in respect of the propertyset out in the schedule to the plaint.
The present Office – Bearers are the successors to the OriginalTrustees or their Assigns. Under these circumstances the followingfurther questions arise for consideration in this Appeal:
Whether the Plaintiff – Respondents have a Legal right toseek Declaratory relief sought in the prayer to the plaint inrespect of the property described in the schedule to theplaint.
If the above question is answered in the negative whetherthe Plaintiffs have any prospect of succeeding at the end ofthe action.
If question No.2 is answered in the negative whether theyhave the right to get an Enjoining order as a first step to theinjunctive relief sought by them.
The position of the Defendant – Petitioner is that the land was givenas a Crown Grant to the Trustees of the Y. M. B. A. who were named.
CASugathananda Thera Vs. Ajith Bodinagoda and others319
The Petitioner avers that the Defendant – Petitioner in accordance withparagraph 6 of the plaint commenced construction work on a landbelonging to some one else. The plaint states that the construction ismade to be jutting out to the land described in the schedule to theplaint. The Petitioner submits that as a preliminary matter the plaintshould have been rejected in limine as although the plaint states thatthe Wellawatta YMBA is a registered Society and is incorporated, nocertificate of incorporation was produced with the plaint, nor was anyevidence of Registration produced. It is further contended on behalf ofthe Petitioner that an un-incorporated society like the Plaintiff -Respondents in this case can bring an action or defend an action onlyif is comes to Court or is brought into Court after following the procedurelaid down in Section 16 of the Civil Procedure Code, for otherwise agroup of persons such as the Plaintiffs – Respondents have no locusstandi. The Petitioner avers that the Plaint is not in order and hencehas to be rejected. Thus the Petitioner contends that the Plaintiff -Respondents should never be granted an injunctive relief.
The Plaintiffs – Respondents contend that the Defendant – Petitionerpriest has no right, title or interest to the leased property which ispossessed by the YMBA Wellawatte and has wrongfully and unlawfullycommenced construction work in the adjoining property where thebuildings have been built encroaching upon the property possessedby the YMBA Wellawatta. The Respondent further disclosed in theplaint that the Defendant – Petitioner – Priest had forcibly entered thesaid property and went into the extent of cutting down certain treesand also caused damage to the boundary wall which have beenillustrated in the photographs produced by the Respondents. I haveexamined the Appeal of the Defendant – Petitioner, and the position ofthe Plaintiffs – Respondents.
In accordance with the plaint and on examination of the Documents,document E (Gazette dated 09.12.1966) signed by C. J. Serasinghe,Land Commissioner is a Notification under Crown Lands regulation2192) and refers to the Notice regarding the 5 trustees nominated onbehalf of the Y. M. B. A. Wellawatte with regard to the premises the
Sri Lanka Law Reports
(2006) 3 Sri L R.
subject matter of this case. By Special Lease under section 6 of theCrown Lands Ordinance, the land grant was received by 5 Trustees onbehalf of the Wellawatte YMBA on 17.08.1966 from His ExcellencyThe Governor General Mr. William Gopallawa. However the Constitutionof the YMBA annexed as B has no provision for Trustees. In such asituation when the Crown Grant is given to certain trustees for a specificpurpose, with the demise of the trustees and with no continuation ofthe trust, the trust fails, and the Crown Grant ceases to be operativefor the purpose for which it was granted and must hence return to theCrown. Among the 26 Plaintiffs – Respondents none of the originalTrustees are present, no new Trustees have been appointed, and thereis no provision for Trustees in the Constitution of the YMBA, Wellawatte,and hence there is no Locus Standi.
Section 16 of the Civil Procedure Code states that, “Where thereare numerous parties having a common interest in bringing or defendingan action, one or more of such parties may, with the permission of theCourt sue or be sued, or may defend in such an action on behalf of allparties so interested. But the Court shall in such case give, at theexpense of the party applying so to sue or defend, notice of theinstitution of the action to all such parties, either by personal serviceor (if from the number of parties or any other cause such service is notreasonably practicable, then) by public advertisement as the Court ineach case may direct”. There has been absolute non compliance withthe aforesaid provisions of section 16 by the Plaintiff – Respondents.
The Plaintiffs – Respondents styled themselves as officials of theWellawatte YMBA, the document marked as “A" with the plaint is onlysigned by 3 persons calling themselves as President, Secretary andjoint Secretary, and there are no proper proceedings of a valid meetingwhere a decision had been taken. In my view there is no certificate ofregistration or incorporation of the Wellawatte Y, M. B. A. if the YMBAwas registered under the Societies Ordinance, such certificate wouldhave been issued by the Registrar of Societies. As such certificate isnot produced, my conclusion is that the YMBA Wellawatte is not aJuristic person. In such a situation the 26 persons who referred to
CASugathananda Thera Vs. Ajith Bodinagoda and others321
themselves as Officials of the Wellawatte YMBA which is legally nonexistent would have no locus standi.
Even an unregistered or unincorporated Society can sue and besued provided that the procedure as set out in section 16 of the CivilProcedure Code is followed. However as the procedure in Section 16has not been followed by the Plaintiff – Respondents, one could concludethat the Wellawatte YMBA is unregistered and unincorporated.
The title to the land claimed by the Plaintiffs in terms of the plaint isbased on an alleged trust. There is no trust instrument that has beenproduced. For the sake of argument assuming that a trust is admitted,then in accordance with section 5(1) of the Trust Ordinance, theinstrument has to be notarially executed, which requirements has notbeen fulfilled. These plaintiffs are neither trustees nor a juristic person.
On a perusal of the complaint of the plaintiff – respondents againstthe defendant, although they have no legal status to complain, thePlaintiffs are guilty of laches and misrepresentation. On examinationof the police complaints they commence on 07.07.2001 and end on
but the plaint (X3) is dated 15.10.2002 which is more thanone year later. It is pertinent to note that the document illustrating thatthe respondents are officials of the Y. M. B. A. originated on 25.08.2002,although in accordance with the complaints J1 to J5 and K1 whichrange from 07.07.2001 to 01.08.2001 are irrelevant as they relate tocompliants made before 25.08.2002.
With regard to the questions of law raised in the interim order dated13.12.2004,1 supply the following Answers.
No. The provisions of section 16 of the Civil Procedure Codehave to be complied with.
It had not been proved that a valid trust existed in respect ofthe property set out in the schedule to the plaint.
Sri Lanka Law Reports
(2006) 3 Sri L R.
In the aforesaid interim order dated 13.12.2004,03 more questionswere framed, the answers to which are ‘No* Hence for the aforesaidreasons, I set aside the order of the learned Additional District Judgeof Mt. Lavinia dated 31.10.2002 and dismiss the Enjoining orderentered. No costs.
SRISKANDARAJAH, J.—I agree.V. Enjoing order Vacated.Matter set down for argument.
SUGATHAANANDA THERA vs. AJITH BODINAGODA AND OTHERS