031-NLR-NLR-V-79-1-MEDAKANDE-DHAMMANNANDA-THERA-Petitioner-and-METARAMBA-MAHINDA-THERA-Responde.pdf
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Dhammananda Thera v. Mahinda Thera
1977Present: Pathirana, J., Ratwatte, J. andWanasimdera, J.
MEDAKANDE DHAMMANANDA THERA, Petitioner
and
METARAMBA MAHINDA THERA, RespondentS. C. 301/77— D. C. Colombo 13515/L
Buddhist Ecclesiastical Law—Action praying that plaintiff be declaredViharadhipathi of temple and restored to possession of temporali-ties—Death of plaintiff pending action—Whether rights to suesurvives—Nature of such and action—-Administration of Justice(Amendment) Law, No. 25 of 1975, sections 572, 577—CivilProcedure Code, sections 392, 404.
The original plaintiff filed action against the defendant prayingfor a declaration that he was the lawful Viharadhipathi of a templecalled “ Jayatilakaramaya ” and for the ejectment of the defendantpriest from the said temple and the plaintiff’s restoration topossession thereof. The mode of succession to the temple was theSisyanu Sisya Paramparawa and the temple was exempted fromsection 4(1) of the Buddhist Temporalities Ordinance. After theevidence had been led and at the stage when addresses by counselwere going on, the original plaintiff died. The petitioner claimingto be the senior pupil and entitled to succeed him as Viharadhipathimade on application under section 577 of the Administration ofJustice (Amendment) Law No. 25 of 1975 for substitution. Thedefendant objected taking up the position that the right to sue didnot survive on the death of the original plaintiff and that the actiontherefore abated under the provisions of section 472(1).
Held : That if the petitioner establishes that he is the successorin title of the original plaintiff under section 577 of theAdministration of Justice Law (which is the same as section 404of the Civil Procedure Code) he is entitled to continue with theaction as the person to whom the interests of the deceased plaintiffhave passed. An action for declaration of title to the office ofViharadhipathi of a Buddhist temple is generally though in forman action for office or statue in substance an action for the templeand its temporalities and where a plaintiff asks for declaration oftitle to the incumbancy and for an order of ejectment, such ejectmentis not purely incidental to the claim to be incumbent. The actionis therefore one not merely for the office of Viharadhipathi but forthe other interests attached to the office as well which are disclosedin the plaint.
Meddegama Dhammananda Thero v. Dekatana SaddanandaThero, 79 (1) N.L.R. 289 followed.
Cases referred to :
Podiya v. Sumangala Thero, 58 N.L.R. 29.
Dheerananda Thero v. Ratnasara Thero, 60 N.L.R. 77.
Pannananda Thero v. Sumangala Thero, 68 N.L.R. 367.
Charlis Appu Kapurala v. Manis Appu, 71 N.L.R. 351.
Vajiragnana Thero v. Anomadassi Thero, 73 N.L.R. 529.
Application to revise an order of the District Court,Colombo.
PATH1RANA, J.—Dhammarumda Thera v. Mahinda Thera
281
Eric S. Amerasinghe, with Nihal Singaravelu and M. B. Pera-muna, for the petitioner.
A. C. Gooneratne, for the respondent.
Cur. adv. vult.
December 12, 1977. Pathirana, J.
The petitioner makes this application by way of revision to setaside the order of the learned District Judge refusing hisapplication to continue the action in substitution for the originalplaintiff, on the ground that the action had abated on the deathof the original plaintiff as it was a personal action, namely anaction to be declared entitled to the Viharadhipathiship of thetemple in question.
On 2.10.72, the original plaintiff Upananda Nayaka Thera,instituted this action against the defendant priest praying—
for a declaration that he was the lawful and rightful
Viharadhipathi of the temple called “ Jayatilakara-maya ”, and
for the ejectment of the defendant from the said temple
and that peaceful possession be handed over to theplaintiff.
The plaintiff’s case was that he was the lawful Viharadipathiof the said temple and had permitted the defendant to reside andmanage the affairs of the said temple during the plaintiff’sabsence from the Vihara. The defendant acting in violation of thepermission given to him to reside in the premises had sinceJanuary 1972 unlawfully and illegally disputed the plaintiff’srights to the incumbency of the said Jayatilakaramaya. To theplaint is appended a schedule which refers to the allotment oflands bearing assessment Nos. 18 and 19 with the boundaries inextent 0A. OR. 24.48P. “ together with the incumbency of theVihara and the temple called and known as Jayatilakaramaya andits appurtenances presently bearing assessment Nos. 87 and 90,Swama Chatiya Road, Grandpass, Colombo 14”.
The defendant in his answer denied the averments in the plaintand claimed that on his own right he functioned as the controllingViharadipathi of the temple for over 30 years. He asked for adismissal of the plaintiff’s action.
It is not disputed that the mode of succession to the said templeis sisyanu sisya paramparawa and the said temple is exemptedfrom section 4(1) of the Buddhist Temporalities Ordinance.
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PATHIRANA, J.—Dhammananda Thera v. Mahinda Thera
There were several dates of trial and the plaintiff's and thedefendant’s respective cases were closed and addresses hadcommenced. A date for further addresses was given for 9.4.76.However, on 6.4.76 the original plaintiff died. The petitionerclaiming to be the senior pupil of the deceased-plaintiffand entitled by succession to the office of Viharadhipathifiled petition and affidavit dated19.7.76 and made an
application under section577 of the Administration of
Justice Law (Amendment), No. 25 of 1975, that he had a right tocontinue the action in substitution for the deceased plaintiff ashis rights had devolved on him. The defendant filed objectionto the said application stating that the action of the originalplaintiff was for a declaration for a personal right and thereforeon the death of the plaintiff the right to sue did not survive andthe action therefore abated under section 572 (1) of the Adminis-tration of Justice Law. The defendant further stated that therewas no claim in the action to the temporalities of the temple bythe original plaintiff.
The learned District Judge was of the view that this was apersonal action on an examination of the averments pleaded inthe plaint. He followed Dheerananda Thera v. Ratnasara Thera,60 N.L.R. 7, which was a case under section 392 of the Civil Pro-cedure Code which is the same as section 572(1) of the Adminis-tration of Justice Law, where a Bench of three judges took theview that where a plaintiff’s suit against a defendant is primarilyto establish his personal right to the office of Viharadipathi ofa temple his cause of action was purely personal and the suitwould abate on the death of the defendant during the pendencyof the suit. He also held that the decision of this Court in Panna-nanda Thera v. Sumangala Thera, 68 N.L.R. 367, did not applyto the facts of the present case as in that case the plaintiff suedboth for a declaration that he was the lawful Viharadipathi of aVihara and was also entitled to possess the temporalities thereof.It was held in that case that when the plaintiff priest died duringthe pendency of the action, a person who can establish that hewould be the successor in title to the incumbency upon the as-sumption that the deceased plaintiff himself had been the incum-bent was entitled to substitution under section 404 of the CivilProcedure Code. According to the learned District Judge in thepresent case there was only a claim for the Viharadipathiship andno claim was made for the temporalities, as such section 404 ofthe Civil Procedure Code which corresponds to section 577 ofthe Administration of Justice Law did not apply. Dealing withthe contention that the cause of action and the prayer in thepresent case sought to eject the defendant and restore the plaintiffto the possession of the temple and therefore the action did not
PATHIRANA, J. —Dhammananda Thera v. Mahinda Thera
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abate on the death of the original plaintiff, the learned DistrictJudge was of the view that the relief claimed to eject the defen-dant from the Vihara was a claim which was only incidental tothe main claim in the case, namely, an action for a declarationof title to the Viharadipathiship of the temple. There was noclaim for the temporalities in the present case.
Mr. Eric Amerasinghe who appeared for the petitioner beforeus submitted that an examination of the plaint would reveal thatthe proprietary rights were in the forefront of the case and notincidental. He laid stress on the fact that the averments in theplaint disclosed quite clearly that the right to the temple whichstood on a land which was described in the schedule to the plaintwas in issue in the case.
The plaintiff’s case was that he had consented and permittedthe defendant to reside and manage the affairs of the temple inthe plaintiff’s absence from the Vihara and that in violation of thepermission given by the plaintiff to reside in the premises he hadsince January 1972 unlawfully and illegally disputed the plain-tiff’s rights to the incumbency of the said temple. There was aclaim that the defendant should be ejected from the temple andpeaceful possession handed over to the plaintiff. Mr. Amerasingherelied strongly on the judgment of Podiya v. Sumangala Thero,58 N.L.R. 29, where Sansoni, J. seemed to think that other rightsbesides a personal right were involved in the office of Viharadi-pathi of a temple. He speaks of lesser rights in property which aViharadipathi by virtue of his office acquires. In this case thequestion was whether the pupil was a privy of his tutor for thepurpose of the law of res judicata. Sansoni, J. held that this wasso and made the following observations : —
“ I do not think that it is essential in order to constituteone person the privy of another that there should be a ques-tion of ownership of property arising ; there are lesser rightsin property which a Viharadipathi, by virtue of his officeacquires. For instance, he is entitled to the unhampered useof the Vihare for the purpose of maintaining the customaryreligious rites and ceremonies. He can claim full possessionof it even though the title in respect of it and of the otherendowments of the Vihare is vested in a trustee. See Guna-ratne Nayake Thero v. Punchi Banda Korale (1926) 28 N.L.R.145. Again, he is entitled to the control and management ofthe temple premises and might regulate its occupation anduse to the extent that no other priest can select for himselfa particular place in the Vihare independently of him against
284PATH1RANA, J.—Dhammaitanda T/tera v. Mahinda Thera
his wishes. A priest who is guilty of contumacy is liable tobe ejected by him. See Piyadasa v. Devamitta (1921)23 N.L.R. 24. ”
In the judgment in S.C. 136/70 (F)—D.C. Gampaha 11011/Lwhich was delivered on 7.12.1977 this Court considered the samequestion whether an action for a declaration of title to the officeof Viharadipathi of a temple abates on the death of the plaintiffor the defendant in the case. In that case I took the view(Malcolm Perera, J. and Wanasundera, J. agreeing) that theaction can be continued by or against the successor in title undersection 404 of the Civil Procedure Code which is the same assection 577 of the Administration of Justice Law. We took theview that the action though in form an action for a status or anoffice was in substance an action for a temple and its tempora-lities which by operation of law belonged to the Viharadipathiof a temple. We considered in that case the judgments of thisCourt in Dheerananda Thera v. Ratnasara Thera (supra),Pannananda Thera v. Sumangala Thera (supra), Charlis AppuKapurala v. Manis Appu, 71 N.L.R. 351, and Vagiragnana Thera v.Anomadassi Thera, 73 N.L.R. 529 and we expressed the followingview : —
“ When an usurper, imposter or trespasser disputes therights of a lawful Viharadipathi of a temple, this usuallytakes the form of occupying the temple and or its tempora-lities, the temple being a symbol of the office of the Vihara-dipathi. In the result in an action for declaration of title tothe office of Viharadipathi of a temple though in form it isan action for an office or status, it is in substance an actionfor the temple and all its temporalities. In the present case,the plaintiff who is asking for a declaration of title for theincumbency also asks for an order of ejectment. Ejectmentfrom what ? Obviously from the temple and its temporalities.The action is therefore not merely for the office of Viharadi-pathi but also other interests attached to that office, whichas I have pointed out earlier are disclosed in the plaint.Ejectment of the defendant cannot therefore be said to bepurely incidental to the claim to be the incumbent. The tem-ple and the office are so inextricably interwoven that it isalmost impossible to visualise the one without the other. Toeject means to oust the defendant from the temple and putthe plaintiff in possession of the same temple. ”
We, therefore, take the view that it is competent if the peti-tioner establishes that he is the successor in title of the originalplaintiff in this case, under section 577 of the Administration of
Moosajees v. Eksath Engineru Kamkaru Samithya
285
Justice Law (same as section 404 of the Civil Procedure Code)to continue with the action as the person on whom the interestsof the deceased plaintiff have passed. We, therefore, set aside theorder of the learned District Judge and remit the case to theDistrict Court for inquiry into the application of the petitioner.If the District Court is satisfied that the petitioner is the lawfulsuccessor in title to the incumbency on the assumption that thedeceased plaintiff himself had been the incumbent, then thepetitioner will be entitled to substitution under section 577 ofthe Justice Law, as the person on whom his interests have de-volved.
The petitioner will be entitled to costs of this application bothhere and in the District Court.
Ratwatte, J.—I agree.
Wanasundera, j.—I agree.
Application allowed.