130-NLR-NLR-V-51-SINNALEBBE-et-al-Appellants-and-MUSTAPHA-et-al-Respondents.pdf
BA8NAYAKE J.—Sinnalebbe v. Mustapha“(41
1949Present: Basnayake J. and Gratiaen J.
STN>?aLEBBE et al., Appellants, and MUSTAPHA et al.,Respondents
5. C. 52 Inty.—D. C., Batticaloa, 570
Muslim Intestate Succession and Wakfs Ordinance (Cap. 60)—Sed.iorvt 15 and 16—Application by persons interested in mosque—Omission to make all trusteesrespondents—Fated irregularity—Power of Court to add re>n.nMn$ trusteesas parties—Civil Procedure Code, section 18.
A court, has no jurisdiction to entertain an application made undoc Motions IBand 16 of the Muslim Intestate Succession and Wakfs Ordinance unloss allthe trustee® of the charitable trust or place of worship in question nro maderespondents. Where the petitioners omit to name srr.no of the trustees asrespondents the court has no power to invoke the aid of section 18 of the CivilProcedure Code in order that tho remaining trustees may bo added as parties.
A
aJlPPEAL from an order of the District Court, Batticaloa.
V. Perera, K.C., with H. Wanigatunga, for appellants.
E. B. Wikramanayake, K.C., with J. N. David and NainaMarikar, forrespondents.
Cur. adv. vult.
December 14, 1949. Basnayake J.—
On April 19, 1948, the nine persons who are respondents to thisappeal (hereinafter referred to as the petitioners) made a preliminaryapplication under section 16 of the Muslim Intestate Succession andWakfs Ordinance (hereinafter referred to as the Ordinance) for leaveto make an application under section 15 of that Ordinance. They namedthe two appellants as respondents to that application. Tho petitionersalleged that they wero regular worshippers and members of the con-gregation of the Mosquo called Meera Pallivasal at Kattankudy and thatthe first appellant was tho Chief Maracair and the second appellant aMaracair of that Mosque, and asked that leave be granted to make aregular application to the District Court under section 15 of the MuslimIntestate Succession and Wakfs Ordinance,
542
BA8NAYAKE J.—Sinnalebbe v. Mustapha
On Jane 22, 1948, leave was granted and on July 30, 1948,a petition under section 15 was filed. The appellants thereupon lodged“ a statement of objections The matter thereafter proceeded to trialon the ioUutrmg issues :
Were there more than two trustees of the Meera Pallivasal at the
date of filing of this application ?
If so, have all the trustees been made parties ?
If not, can this application be entertained r
The learned District Judgo hold that there were thirteen trustees of theplace of worship known as Meera Pallivasal and that only two of themhad been named as respondents to the petition. He also held that theapplication was one that he could entertain and made order that theremaining trustees be added as parties. The present appeal is from thatorder.
The question that arises for decision on this appeal is whether thelearned trial judge has jurisdiction to entertain under sections 15 and16 of the Ordinance an application to which all the trustees of the charit-able trust or place of 'worship are not made respondents. '
Section 15 gives the right to any five persons interested in a Muslimplace of worship, after obtaining leave under section 10, to apply bypetition to the District Court within the local limits of whose civil juris-diction the subject of such place of worship is situate in order to obtainan order for any or all of the purposes enumerated therein. The enact-ment requires a person invoking its aid to “ apply by petition to whichthe trustee or trustees (if any) shall be made respondents In theinstant case the petitioners have omitted to make eleven of the trusteesrespondents to either the application for leave or the petition.
Seotiona 15 and 10 are provisions which regulate procedure in a courtof law and must in this context be construed as imperative in accordancewith the general rule of interpretation applicable to enactments regulatingprooedure in courts. Unless the requirements of the statute are compliedwith the court has no jurisdiction to proceed with the matterl. Thelanguage of section 15 docs not to my mind admit of the addition ofparties to the petition after it is filed. Apart from that, the Ordinanceis a new statute, and where a new statute creates new rights and obliga-tions and provides a special procedure for enforcing those rights andobligations the provisions of the Civil Procedure Code will not, in theabsence of any provision in that behalf, regulate the procedure undersuch an enactment2. Care has been taken in similar enactments1where the ordinary civil courts are designated as the forum for the settle-ment of disputes thereunder to make express provision prescribing theprocedure to be observed. The Ordinance makes no such provisionand the court has no power to invoke the aid of section 18 of the CivilProcedure Code as the learned District Judge appears to have done.
' Boiland v. Peacock, (1912) 1 K. B. D. 1S4 at 156.
Patmore «. OmxMtwistle Urban Council, (1898) A. C. 387 at 394.
The Queen v. County Court Judge of Beeea, (1887) 18 Q- B. D. 704 at 708.
Wilkinson v. Barking Corporation, (1948) 1 Att B. R. 664 at 667.
Section 3, Insolvency Ordinance.
Section 32, Land Acquisition Ordinance.
Section 116, Trusts Ordinance,
Section 17, Land Settlement Ordinance,
NAGALIN’GAM J.—Annamalai v. Qvfu*ttxtm>/543
The ordor of the learned District Judge cannot be sustained and isaccordingly set aside. The appellant’s appeal is allowed with costs andthe petitioner’s petition will stand dismissed with costs.
In order to remove any doubt, I wish to state that the petitionersor any other persons qualified to make an application under sections 15and 16 of tho Ordinance in respect of the place of worship known asMeera Pallivasal are not precluded by this judgment from making aproperly constituted application thereunder.
Gratiaen J.—I agree.
Appeal allowed.