101-NLR-NLR-V-73-N.-VAJIRAGNANA-THERO-Appellant-and-GINTOTA-ANOMADASSI-THERO-Respondent.pdf
H. N. G. FEBHANUO, U.J.— V ajtraganara Thero v. GiniotaAnomadaesi Thero
529
1970Present: H. N. G. Fernando, C.J., and Tennekoon, J.
N.VAJIRAGNANA THERO, Appellant, and GINTOTAANOMADASSI THERO, Respondent
S.G. 118167(F)—D.C. Balapitiya, 1448JL
Action for declaration of right to an office—Death of plaintiff pending action—Abatementof action—Effect—Civil Procedure Code, as. 395, 403.
Where, pending an action for a declaration that the plaintiff was theControlling Viharadhipathi of a templo and its temporalities, the plaintiffdied and the action was abated on the ground that the cause of action didnot survive the death of the plaintiffs—
Held, that it was competent for tho person who claimed to be the deceasedplaintiff’s successor in office to institute a fresh action against tho samedefendant for similar relief.
Appeal from a judgment of the District Court, Balapitiya.
B. Wikramanayake, Q.C., with H. Samaranayake, for the plaintiff-appellant.
H. W. Jayeivardene, Q.O., with Walter Wimalachandra, for thedefendant-respondent.
June 2, 1970. H. N. G. Fernando, C.J.—
In this action the plaintiff sued the defendant fo:- a declaration that heis the Controlling Viharadhipathi of a templo and its temporalities, andalso for the ejectment of tho defendant from the temple. It wouldappear that a Monk who is claimed by the plaintiff to have been hispredecessor had instituted an earlier action against the same defendant forsimilar relief to that which is now claimed by the plaintiff. That actionwas abated upon the death of tho plaintiff in that action on the groundthat the cause of action did not survive the death of the plaintiff.
The learned District Judge has in the present case upheld an objectionthat because of the abatement of the former action Section 403 of theCivil Procedure Code is applicable,. and he dismissed the presentaction.
It seems to us that under Section 395 of the Civil Procedure Code it wasimpossible for tho former action to be continued because the legalrepresentative of'the deceased plaintiff in that action could not have sued
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1»—K 799—2^55 (1/71)
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Samarawcera v. Bandara
for a declaration that ho was the Viharadhipathi of the temple or forany ancillary relief. It seems to us that the former action fell withinthe principle applied in the case decided in GO N. L. R. 7.
The order dismissing the plaintiff’s action is set aside and the case isreturned to the District Court for trial on the issues other than issueNo. 26. The jilaintifT will ho entitled to the costs of this appeal and ofthe past proceedings in the District Court.
Teknekook, J.—I agree.
Order set aside.