GUNARATNE v. PUNCHIBANDA

050-NLR-NLR-V-29-GUNARATNE-v.-PUNCHIBANDA.pdf


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Present: Schneider J. and Maartensz A.J.GUNABATNE v. PUNCHIBANDA.
67—D. C. Kandy, 33,617.
Buddhist Temporalities—Claim for Maintenance ' by ' incumbent—Resjudicata—Pastmaintenance—Claim toright—Civil' Proced’tre
Code, s. 207—Ordinance No. 8 of 1905, *. 30.
The decree in an action for maintenance brought by the 'in-embent of a Buddhist temple against the trustee is not rosadjudicate in a subsequent action for a similar claim by thesuccessor in' office of the incumbent.
A decision as to what is a reasonable sum for maintenancedoes not involve an adjudication on a right within the meaning ofsection 207 of the Civil Procedure Code.
An incumbent is not entitled to claim past maintenance except inthe form of reimbursement"' of expenses incurred in maintaininghimself or the priesthood.
Where the trustee of a-Buddhist temple has acted under the' instructions of the District Committee in defending an action he isnot personally liable in costs.
A
PPEAL from a judgment of the District Judge of Kandy.
The plaintiff, claiming to be the High Priest of the Dambulla
Vihare, instituted this action to recover a sum of Rs. 965 for past-maintenance from the defendant, who is the^ trustee of the vihare.He also claimed an order for future maintenance. The defendantpleaded that the plaintiff, not being resident in the vihare was notentitled to maintenance and that the claim for past maintenanceWas not sustainable. At the trial the plaintiff contended thataction No. 20,156 of the same Court estopped the defendant fromopposing the plaintiff’s claim. The learned District Judge heldthat the decision in the previous action was res judicata not onlyon the question of plaintiff’s right to maintenance but also uponthe plaint as to what is a reasonable sum- for maintenance.
H. V. Perera, tor defendant, appellant.
Keuneman, tor plaintiff, respondent.
October 27, 1927. Schneider J.—
The plaintiff, stating that he had been appointed the high priestof the Dambulla vihare in June, 1924, instituted this action inJanuary, 19%, claiming a balance sum of Rs. 965 as due to him
Id*?
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1027.
SCHKEIDJSB
J-
GunartUnt
Ptmvhibanda
at the rate of Bs. 60 per mensem for past maintenance up to thedate of action from the defendant who is the trustee of that vihare.He also claimed an order that future maintenance be paid at the6ame rate. The defendant pleaded three defences. First, thatthe plaintiff not being resident in the vihare was not entitled tomaintenance. Next, that B-s. 15 a month was a reasonableallowance for maintenance; and lastly, that the claim being forpast maintenance was not sustainable. He also pleaded thata larger sum than that, admitted by the plaintiff in his plaint, hadbeen paid to him by the defendant. At the trial the plaintiffpleaded that action No. 20,156 of the same Court decided in 1912,estopped the defendant from opposing the plaintiff’s claim by thedefences raised.
At the trial nine issues were framed and the District Judgedecided that he would try the issues numbered 8 and 9 as he thoughtthat they would probably dispose of the whole case. He heardargument upon those two issues which raised the question whetherthe decree in the action mentioned was res judicata in regard tothe plaintiff’s claim of a right to receive maintenance (issue 9)and the question whether it was competent to the Court to entertainthe action as it involved an ecclesiastical matter (issue 8.) Hedelivered his judgment in September, 1926, holding on issue 8that the Court had jurisdiction respecting the subject-matter cfthe action upon considerations other than the decision in actionNo. 20,156, and that the decision in the action mentioned wasres judicata not only on the question of the plaintiff’s right- to claimmaintenance as the issue he tried set out but “ also on issues 1,2, 5, 6, and 8.” I agree with the District Judge that his decisionof issue 9 involved the decision of issues 1 and 5 which merelyraise the same question in different forms. The defendant-appellant’s counsel has admitted the light of the plaintiff, a non-resident high priest, to claim maintenance out of the temporalitiesof the vihare. If I may say so, he has made this admission rightly,because although in his answer the defendant denied that theplaintiff was entitled to that right, he at the same time admittedin the answer that he paid certain sums of money to the plaintiffin recognition of the right claimed by the plaintiff. On this appealwe are, therefore, not called upon to decide whether the decisionof the action No. 20,156 is res judicata as regards the claim madeby the plaintiff in this action to a light of maintenance. Butas the learned Judge has held that it is res judicata not only asregards that right but also upon the question whether Rs. 60per mensem is a reasonable sum for the maintenance of the plaintiff(issue 2) and upon the question that the plaintiff is entitled toclaim for past maintenance (issue 6) it would appear that it isnecessary to consider th<* question whether the holding is right
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that it is res judicata in regard to these two matters. In my opinionit is not res judicata in regard to any claim made or question raisedin thi6 action. It is well settled law that a judgment in personamor a decree, as our Civil Procedure Code puts it (section 207),binds only the parties and “privies.’* “Privies” include allpersons who succeed to the position of a party or hold in subordi-nation to his rights. But the person ^stopped must claim throughthe party and not independently. It is this general rule of lawwhich our Code sets out in the explanation below section 207of the Code that “ every right to relief of any kind which can beset up between the parties to an action upon the cause of actionfar whieh the action is brought becomes on the passing of thefinal decree a res adjudicata which cannot afterwards be made thesubject of action for the same cause of action between the sameparties.” It was argued before us, and it appears to have beenargued also in the lower Court, that section 207 is not exhaustive ofthe whole law of res adjudicata obtaining in Ceylon. This argumentrests upon the authority of Samichi v. Peiristl decided by a PuliBeneh of this Court. But there is no distinction between the lawof Ceylon and that of England on the point that a matter is resadjudicata only as between the parties and their privies to thelitigation.
The whole of the record in case No. 20,158 was before us andshowed that the question of the right of the plaintiff to claima sum of money as arrears of maintenance due to him as the HighPriest of the Vihare, although he did not reside within the vihare,was adjudicated upon, and that the plaintiff obtained a decreefor the payment of a sum of Rs. 2,160 as for arrears of maintenanceand also for payment at the rate of Rs. 720 per annum for futuremaintenance. The parties to that action were not the plaintiffand defendant in the present action, but the priest who held theappointment of High Priest at that date and the then trusteeof the vihare. The defendant in the present action might beregarded as a “ privy ” of the defendant in that action for thereason that he is the successor in title of that defendant- to thetemporalities of the vihare and that action decided the right ofthe plaintiff in it to a claim for maintenance, out of those tempora-lities. Thereis accordinglyan identity ofthe defendants in the
two actions;but is thereof plaintiffs?I thinknot.Apriest
becomes thehigh priest ofthe vihare inquestionnotbyvirtue
of any formof successionrecognized bythe lawbutbybeing
appointed to the office by some person or persons. The law hasnot recognized a continuity of succession to temporal rights asexisting between one high priest so appointed and his successor
1 (1913) 16 N.L. if. 257.
1037.
SOHNStDBa
J.
GunarcUhs
v.
PunehibOnda
( 252 )
1027.
‘ S0BN9n>EB
J.
Qunaratoe, •.v?V>,‘ .» •
. punehibanda
as it has in recognizing the succession called Sisfiiyanu Sissia Pararn-parawa. To regard such a continuity of succession as existingwould be to invest a high priest with the character of a corporation“ sole ”,for which there is no authority in law. There being noidentity of parties in the two actions the older action not onlydoes not estop the parties to this action upon any matter in disputebut it is irrelevant and should not have been admitted as evidencein this case. If there, had been an identity of parties it. wouldhave estopped the defendant from denying the' right of the plaintiffto claim maintenance but not from raising in this action the abs-tract question whether ■ a person in the plaintiff ’s position r;ansustain a claim for past: maintenance. For one reason that questionas an abstract question was not raised or tried in that case butit was impliedly dealt with in that the plaintiff there was alloweda sum of money for past maintenance. The defendant’s conductin that action was an admission of that right, and an admissioncan create an estoppel. But assuming that the question wasexpressly 'adjudicated upon, that would not prevent it from beingonce again raiseds in this action. In the view I take of the law,that was an erroneous decision. It is well settled law that .anerroneous decision as regards the law will operate -as res adjudicaiaquoad the subject-matter of the action in which it is given but. nafurther, and that it does not prevent the Court from decidingthe same question between the same parties in a subsequent actionaccording to law (Katiritamby et al. v. Parupathi Pillai et aL).1 Nordoes the older case estopped the defendant in this case from raisingthe issue as to what was reasonable sum to be paid for maintenance.The decision as to what was a reasonable sum in that case did notinvolve the decision of a claim to a 41 right It is only .wherethe decision is of a right (section 207) that the decree in one actionwill operate as a bar in a subsequent action. If it were otherwiseit would involve the importing of the evidence in the older actioninto the present.
: I bold therefore that the older action does not debar the defendantfrom raising any one of the issues he has raised-in the present action.In my opinion the plaintiff cannot maintain this action to recoverthe sum of Rs. 965 claimed for past maintenance.
The .plaintiff’s right to claim maintenance from the defendantarises from the provisions of section 20 (6) of the Buddhist Tem-poralities Ordinance, No. 8 of 1905, which enacts that the ** issues,rents, profits, and offerings shall be appropriated to the maintenanceof the priesthood and ministerial officers attached to each temple.”
.A claim made for maintenance implies that the necessity formaintenance exists, or ha6 existed, because the person claimingbad no other .means of maintenance, or has not been maintained
i [1921) 23 N, L. R. 209.
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by other than the person from whom it is claimed. It wouldappear that it is in recognition of this principle that in the Mainte-nance Ordinance^ No. 19 of 1889, in section 3 it is provided thatthe .order for maintenance shall be for an “ allowance payablefrom the date of the other.’* Under that Ordinance no claim forpast maintenance can be made. The assertion of right to a claimfor past maintenance was attempted to be asserted in Hanaaingheet al. v. Pieris,l but the Court refused to recognize such a right.That case was in regard to the claim of a wife and a child madeagainst the husband and father—and the claim of a Buddhistpriest, it seems to me, will be governed by the. same principle.This view was taken in a decision of this Court which has not beenreported. I refer to S. C. No. 344—D. C. Kandy No. 285,151 *In Iris judgment Ennis J., speaking of the claim for damages, bywhich he means for past maintenance, says he finds “ a difficultyin supporting the judgment on that point as the priesthood and*the ministerial officers attached to the temple, appeared to havebeen maintained in some way, and any balance*of income left over-bad unquestionably vested in the trustee, 'but ’ that the personclaiming past maintenance might be able to show that he hasa personal claim in connection with expenditure from his ownpocket for the maintenance of the priesthood, or that he had’incurred obligations to pay others in respect of that maintenance-and to be entitled to reimbursement. I venture to say thatthat would appear to be the correct view of the law. The plaintiffin this • action * does* not claim to be reimbursed because he hasincurred obligations in 'maintaining himself. His action for therecovery of the 'sum! of Rs.-965 therefore fails. On this point hiecounsel- contended that’-.he should be given an' opportunity to*amend -his plaint if .necessary and prove that he has a claim forreimbursement. I am not disposed to allow any such indulgencefor that'would* be to allow the whole character of the action to bealtered.
rThiere remains the claim for future maintenance at the rate ofRs. 60. I am unable to accept the District Judge’s finding thatthat* is a reasonable sum. His finding on this question was greatlyinfluenced by* the ■ decision of the older case and his regarding itas rest judicaia on that question. The evidence shows that theliigh priest was never at any time paid regularly at the rate ofRs. 60 per mensem or Rs.-720 per annum but that the paymentswere always i in arrear. The evidence of Hapugoda, the Secretaryof the District Committee, is that the accounts from 1913 to 1924show that the high priest has been paid on an average not morethan Rs. 30 or Rs.* 40 per mensem. The defendant, the trustee,says that he can pay the'plaintiff between Rs. 20 or Rs. 25 per1 (1009) 12 N. L*. R; 21.: * S. C. Minutes, May 2$, 192*.
’ 1021
Schneider:
J.
Gunaratne
v.
Punchibanda
1927.
&CHNEIDEB
J.
Qufwratne
v.
JPundhibanda
( 2«t )mensem. It seems to me that it would be unreasonable consideringthe uncertain sources from which the income is derived to fix adefinite sum which, has to be paid monthly or yearly. The amountallowed for the plaintiff’s maintenance must depend upon theincome actually recovered and the disbursements which haveto be made. The District Committee and the trustee wouldappear to be the persons to determine the allocations. I wouldgive judgment for the plaintiff for a sum of Us. 30 per mensemas from the date of action till date of this decree, and thereafter,for such reasonable sum as the trustee can/pay upon a properallotment of the income received by him.
I think th£ District Judge was not justified in ordering the(defendant personally to pay the costs of this action. The defendantis accountable to the District Committee. He has acted upon•the instructions of that Committee in defending this action. Thetresult of the defence justified his conduct. The Ordinance (No. 8•of 1900, section 30) specially provides that a trustee who is a.defendant is not to be personally liable in costs for any act bona fide•done by him under any of the powers or authorities vested in him;under the Ordinance. I set aside the decree of the lower Court.and direct that decree be entered for the plaintiff for future mainten-ance, meaning thereby maintenance as from the date of thisaction in terms of my, holding above, and that the defendant’s;costs of this action and of the appeal be paid 'from the incomeof the temple. The plaintiff must Bear his own costs.
It was urged that the defendant was debarred from raising!by this appeal the questions involved in the issue decided by theDistrict Judge in his judgment in September, 1926, because thertime for appeal from that judgment had elapsed before this appealwas filed. I do not think it necessary in regard to this contention.to say anything more than that the appealable time has to bereckoned not fi*om the date of the judgment, but of the order or•decree (Civil Procedure Code, section 756). The matters decided‘by the judgment of September, 1926, were reduced into the form.of a decree and entered into the decree of January 12, from whichrthis appeal has been preferred. This appeal was therefore preferred-within the time allowed by law, and the objection fails.
!Maartensz A.J.—I agree.