Sri Lanka Law Reports
(1981) 1 S. L. R.
LAVENDRIS AND OTHERS
WEERARATNE, J., WIMALARATNE, J.
AND VICTOR PERERA, J.
Buddhist ecclesiastical law — Res judicata — S. 406 of the Civil Procedure Code — Is trus-tee privy or successor in title of Viharadhipathy? Section 20 of Buddhist TemporalitiesOrdinance.
Where two earlier plaints on the same subject matter filed by a former Viharadhipathyhad been dismissed for formal defects in the plaint and not after adjudication the plea ofres judicata cannot succeed.
A trustee appointed by the Public Trustee under the Buddhist Temporalities Ordinanceis not the privy or successor in title of the Viharadhipathy for the application of S. 406of the Civil Procedure Code.
Cases referred to
KanapathipiUai v. Kandiah (1942) 44 NLR 42
Dias v. Ratnapala Terunnanse 1938) 40 NLR 41
Appeal from judgment of the Court of Appeal
A. A. de Silva with S. Dassanayake and U. S. Dharmaratne for plaintiff — appellant.Walter Wimalachandra with C. 8. Walgampaya for defendant — respondent.
Cur. adv. vuit
VICTOR PERERA, J.
The plaintiff-appellant as the duly appointed Trustee of Raja MahaViharaya, Hittatiya Matara, filed this action on the 16th September1976 against the defendant-respondents seeking a declaration oftitle to the premises described in the Schedule to the plaint allegingthe same belonged to the temple and for ejectment of the defen-dant-respondents. The defendant-respondents filed answer and seve-
Chulalankara Thero v. Lavendris and Others
ral issues were framed at the trial. On the application of the partiedit was agreed that the following issue be taken up as a preliminaryissue:- .
"Do the decrees in cases'Nos. 3224 an 3721 operate as estoppel
by. res judicata against the plaintiff?".
The learned District judge after hearing submissions by the partiesheld that the said decrees in the two earlier cases were not resjudicata and directed that the trial do proceed on the other issues.
.The defendant -respondents appealed from the said judgment tothe Court of Appeal. The Court of Appeal reversed the finding ofthe learned District Judge and held that the said two earlier decreeswere res judicata and directed that the plaintiff-appellant's actionbe dismissed with costs.
The plaintiff-appellant has with leave obtained from the Courtof Appeal, appealed to this Court. The admitted facts in the presentcase are that the Raja Maha Vihara of Hittatiya is not exemptedfrom the provisions of Section 4 (1) of the Buddhist TemporalitiesOrdinance (Chap. 318) and that the present plaintiff-appellant hadbeen duly appointed the Trustee for the said temple by the PublicTrustee by virtue of the letter of Appointment dated 20.12.1973,filed.of record with the plaint in this case. The letter of appoint-ment given in pursuance of the powers vested in the Public Trusteeunder Section 11 (2) of the Buddhist Temporalities Ordinancesets out that by reason of the nomination dated 10th September1973 made by Kirthi Sri Ariyajothi Thero, the Viharadhipathiof the said temple, Godagama Chulalankara Isthavira, the plaintiff-appellant, was appointed the Trustee. It is clear from this letterof appointment, that the Viharadhipathi and the Trustee for thetemple are two separate persons.
By virtue of the provisions of section 20 of the Buddhist Tem-poralities Ordinance, all property movable, belonging or in anywiseappertaining to or appropriated to the use of any temple vests in ■the Trustee who may sue for the recovery of any such property.Thus the plaintiff-appellant, as trustee, alone had the legal rightto institute this action on behalf of the temple for the recoveryof the property alleged to belong to the temple after his appoint-ment as Trustee.
The defendants-respondents relied on two decrees in cases3224/L and 3721/L as res judicata. The case No. 3224/L was filed
Sri Lanka Law Reports
(1981) 1 S. L. R.
in September 1970 by Kirthi Sri Ariyajothi Thera as Viharadhi-pathi of the temple against K. A. Lavendris, the 1st defendant-respondent in the present case, fora declaration of title as propertyof the temple and for ejectment on the basis that the 1st defen-dant had taken a lease of the premises from him on Deed No. 4868dated 31st March 1941 for 10 years and had continued in occupa-tion with his leave and licence thereafter, till June 1970 when the1st defend ant-respondent started disputing the title of the templeto the said land. In the plaint the said Ariyajothi Thera as Vihara-dhipathi averring that the temple was exempted from the provisionsof Section 3 of the Buddhist Temporalities Ordinance sued, simpli-citer, as the Viharadhipathi. The learned District Judge in hisjudgment in that case held that as the plaintiff in that case had notpleaded that the temple was exempted from the- operation ofSection 4(1).of the Buddhist Temporalities Ordinance, he couldnot maintain the action as Viharadhipathi. The action was dis-missed and decree dismissing the action was entered on 30thNovember 1972.
The second case No. 3721 was filed on 30th October 1973 bythe same Ariyajothi Thera as Viharadhipathi against the same1st defendant and also against his son the 2nd defendant in res-pect of the said premises. In the plaint he averred that the templehad not been exempted from the operation of Section 4(1) ofthe Buddhist Temporalities Ordinance and he sued as the Control-ling Viharadhipathi. However,, when the case came up for trial theplaintiff while conceding that the temple had not been exemptedfrom the operation of Section 4(1), admitted that a Trustee forthe temple had been appointed by the Public Trustee.On 4thApril. 1975, the action was withdrawn and a formal decree dismis-sing the action was entered. In point of fact the present plaintiff-appellant had been appointed on 20th December, 1973.
The first question that comes up for consideration is whether theplea of res judicata arises under the circumstances. The dismissal ofthe two earlier actions were merely for the reason that there wereformal defects, in the first case, the.failure to plead exemption fromthe provisions of Section 4(1) of the Buddhist TemporalitiesOrdinance and in the second case the fact that the temple hadnot been exempted from the provisions of Section 4(1) and that aTrustee had been appointed after the action was filed.
The plaintiff in the first case failed to make out a legal status tomaintain the action and in the second case he renounced his allegedclaim to sue on the discovery that he had no legal status to file ormaintain the action. It is significant that when he filed case No.
Chulalankara Thero v. Lavendris and Others
3721/L on 31st October 1973, the plaintiff Ariyajothi thero hadalready in September 1973 nominated the present plaintiff-appel-lant for appointment as Trustee by the Public Trustee. Thus he wasfully aware that the temple had been brought within the operationof Section 4(1) of the Ordinance though no Trustee had beenappointed at the date of the plaint .
The term 'res Judicata' by its very words mean a matter uponwhich the Court has exercised its judicial mind and pronounced adecision in regard to the claim of the plaintiff or the defendant. Inthese cases there was no adjudication in regard to the subject matterof the actions. The title of the temple if any, to the land remainedintact, but the identical plaintiff in both cases was found notentitled to maintain those actions. There was a termination of the' two actions as such but there was no termination of the actualcontroversy by a judgment one way or the other. Therefore the pleaof res judicata did not strictly arise for determination in the presentaction
But it could have been urged that the decrees of dismissal inboth actions operated as statute bars in terms of Section 406of the Civil Procedure Code. This section creates a statutory barwhich precludes a plaintiff from bringing another action when anearlier action brought by him in respect of the same subject matterhas been withdrawn or dismissed unless liberty to file a fresh actionhas been granted at the time of withdrawal or dismissal. In regardto Ariyajothi Thera the plaintiff in the earlier actions, the plaintiffsand the subject matter in the two cases were the same. In this casethe plaintiff is a different person. No doubt, a statutory bar eventhough not operative as res judicata would operate against a plain-tiff if he could be regarded as privy or successor in title to theplaintiff in the earl ier actions.
The question therefore to be considered in this case is whetherthe plaintiff-appellant a Trustee duly appointed for the temple is asuccessor in title to Ariyajothi Thero, the Viharadhipathi of thetemple, the plaintiff in the earlier action. In determining thisquestion one must examine in this light the relationship of a Viha-radhipathi of a temple over which he presides and his rights to theproperty belonging to the temple. If the temple is not broughtwithin the operation of Section 4(1) of the Buddhist Temporali-ties Ordinance, the Viharadhipathi's rights in regard to the.propertybelonging to the temple are unaffected and he is regarded as thecontrolling Viharadhipathi. On his death, his pupillary successorin title is vested with all the rights his tutor was entitled to and
Sri Lanka Law Reports
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he would be his privy or successor in title. When a temple is broughtwithin the operation of this Section 4(1), the Viharadhipathi'srights to preside over the temple are unaffected. His rights to thetemple property are not lost. But when a Trustee is appointed forthe temple, the management of the temple property alone vestsin the Trustee in terms of Section 20 of the Ordinance and it ishe who could sue for the recovery of property of the temple interms of Section 18 of the Ordinance. On the death of theVihara-dhipathi, his pupillary successor becomes his successor in titlenotwithstanding the appointment of a Trustee. The rights of theTrustee in regard to management and the right to sue come intobeing by the fact of his being duly appointed a Trustee for thetemple. The present plaintiff-appellant is therefore in no waya privy or successor in title of Ariyajothi Thera, the ViharadhipathiThe title to the temple or to the property did not vest in theplaintiff-appellant as Trustee and the plaintiff-appellant did notderive any title from the Viharadhipathi. In this case the plaintiff isdifferent and therefore the reliefs claimed as Trustee are different.The plaintiff in the earlier cases had no right to sue in the mannerhe did. The plaintiff-appellant has been clothed with the right tosue and therefore his appointment as Trustee has given rise to therelief he claims. The earlier actions and the present action aretherefore not in respect of the same subject matter. A situationsuch as this was considered in the case of Kanapathipiiiai v. Kandiah*1 * and the Supreme Court held that the identical plaintiff who hadsubsequent to the dismissal of a mortgage action in respect Of thesame bond, taken the necessary steps entitling him to sue, wasentitled to maintain the second action on the same bond and thatthe action was not barred by section 406 of the Civil ProcedureCode. Ariyajothi Thera, the plaintiff in the earlier actions, couldhimself have filed this action, if he had subsequently clothedhimself with the right to maintain this action by having himselfappointed the Trustee for the temple. This is clear from the judg-ment of the Supreme Court in the case of Dias v. Ratnapala Terun-nanse. Soertsz, J. held in that case that an incumbent of aBuddhist temple which is not exempted from the provisions ofSection 4(1) of the Buddhist Temporalities Ordinance was notentitled to vindicate title to land belonging to a temple. The actionfiled by him as Viharadhipathi as such was dismissed. The SupremeCourt, however, held that there were liberal provisions in theBuddhist Temporalities Ordinance to meet such contingencies asdelay or the non-appointment of a trustee, for instance in sections9, 10&11 of the Ordinance and that'" it is still open to the templeto avail itself of these provisions and bring a properly constitutedaction." In this case instead of Ariyajothi Thero getting himselfappointed Trustee and himself filing a properly constituted action,
Chulalankara Therov. Lavendris and Others
the plaintiff-appellant as the duly appointed trustee has filed thisaction and that was precisely what he had to do in order to recoverthe property claimed by him as belonging to the temple under thesecircumstances.
The Court of Appeal appears to havemis-directed itself by start-ing with the premise that the present plaint was filed on the basisthat the plaintiff had been "duly appointed by the Public Trusteeas Viharadhipat-hi by the Letter of Appointment dated 20.12.73",and that the case 3224/L and 3721/L were filed by the plaintiffin these cases " in his capacity of Trustee of the Vihare". TheCourt of Appeal held that the present plaint has also been filedby the plaintiff claiming to be the Trustee and that hence thepresent plaintiff is privy "in his capacity as Trustee to the plaintiffwho filed case No. 3721/L also in the capacity of Trustee of thesame Vihara." Factually the position was different. It is this confu-sion that resulted in its setting aside the order of the DistrictJudge on his finding on issue (15). This appeal is accordinglyallowed. The learned District Judge is directed to proceed to trialon the other issues raised at the trial.
The plaintiff-appellant is entitled .to the costs in the DistrictCourt, Court of Appeal and.in this Court.
WEERARATNE, J.WIMALARATNE, J.
I agreeI agee
CHULALANKARA THERO v. LAVENDRIS AND OTHERS