035-NLR-NLR-V-22-RATWATTE-v.-RATNAIKE.pdf
( 1*2 )
1920.
Present: Bertram C.J. and Schneider A. J.
RATWATTE v. RATNAIKE.
44—D. O. (Inty.) Kandy, 27,189.
Claim in reeonvention—Allegation by plaintiff that defendant had noright to dismiss him—Prayer that plaintiff might be dqdaredBasnayake NUame—Answer of defendant that dismissal was legal—Claiminthe altemativethat the plaintiff should be dismissed by Court.
The plaintiff claimed to be the Basnayake.STilame of the Katara-gam Dewale. He denied the right of the defendant to dismiss himfrom that office, and prayed that, he might be declared the Bas-nayake Nilame of the Dewale, and also asked for an injunction andfor damages.
. The defendant in his answer maintained that the dismissal waslegal, and prayed in the alternative that, if there was any defectin the dismissal, the Court itself should remove the plaintiff fromhis office.
Held, that it was competent for the defendant to claim inreconvention that the plaintiff should be dismissed from his office.
rpHE facts appear from the judgment.
A. St. V. Jayaimrdene, for the appellant.
H. J. C. Pereira, for the respondent.'
( 123 ?
August 3, 1920. Bbkfram C. J.—1920.
This is an appeal from an order of the District Judge of the Kandy Batwcm «.District Court directing in the course of action that a particular ■Rorfno’**issue should be added to those already settled. The action wasbrought by the plaintiff, who claimed to be the Basnayafce Nilameof the Kataragam Dewale at Kandy. He complained that thedefendant, purporting to act as President and Secretary of theKandy District Committee, had summoned the plaintiff before himby a notice, which was so framed and served as to give him noopportunity of appearing, and he thereupon purported to dismissthe plaintiff from his office of Basnayake Nilame.' The plaintiffdenied the right of the defendant to dismiss him. He furthercomplained that the defendant inserted a paragraph in a newspaperannouncing that he had been dismissed, thus causing a loss ofprestige and reputation of the plaintiff, and he prayed that hemight be declared the Basnayake Nilame of the Dewale. He alsoasked for an injunction and for damages.
After the answer was delivered a further cause of action wasalleged, anda paragraph wasadded,alleging thatafurther paragraphhad been published in the public press which was of a defamatorynature, withregard tothe matters to which I have previously referred.
In his answer the defendant justified his dismissal of the plaintiff,maintained that the dismissal was perfectly legal, prayed for the- dismissal of the action and for the confirmation of the plaintiff’sdismissal from his office as Basnayake Nilame, and prayed in thealternative that, if there was any defect in the dismissal, the Courtitself should remove the plaintiff from his office. The answer alsoin reconvention prayed for damages.
The point which we have to decide is whether in answer to sucha claim it is competent for the defendant to claim in reconventionthat the plaintiff should be dismissed from his office. That claimin reconvention is based upon section 39 of the Buddhist Temporalities Ordinance, No. 8 of 1905, under which any person interestedin the temple or in the performance of the worship or of the servicethereof may sue any trustee in respect of any misfeasance, breachof trust, or neglect of duty, and may claim the removal of the trusteefrom his office.
It is urged by Mr. Jayawardene that this claim in reconventioncannot properly be tried in connection with tlje present action. Hecites as his authority for that proposition the case of Silva v. Perera,*and in particular the passage from Kotze's Van Leemoen, which isquoted in the course of the judgment in that case. I do not thinkthat passage in Van Leeuwen ought to be too harrbwly construed.Theprinciple which those words lay down is, no doubt, unexception*able, and is accepted as part of the law of this Colony, that is to say, 1
1 /1914) 17 X. L. R. 206,
( 124 )
1920.
Bhbtram
O.J.
. Batuatte v.Ratnaike
that where a claim in reconvention ia made, the thing claimed mustbe of the same right, kind, and quality as the matter claimed inconvention. But on any reasonable construction of those words,it seems to me that the present case falls with them-The main claim in the action is that the plaintiff be declared theBasnayaka Nilame ot the Kataragam Dewale. Bis principalcomplaint is that the defendant has purported to depose him fromhis office. It does not seem to me unreasonable that the defendantshould reply, in the first place, justifying the defendant’s dismissal,and olaiming that he was legally dismissed in pursuance of thepowers alleged to be vested in the defendant, and that he shouldfurther pray that, if it should appear by reason of some defect ofprocedure the dismissal was not a lawful dismissal, the Court in theexercise of its powere under section 39 should itself remove the• Basnayake Nilame from his office. It will probably be necessary,when the Court investigates the action, to refer to the complaintson which the Basnayake Nilame was dismissed, and it would becertainly the most convenient course that the complaints madeagainst this gentleman should be investigated in the action whichhe himself brings before the Court. At the same time, it is obviousthat the particulars of the alleged misfeasance and acts of mis-conduct with which,the plaintiff is charged are no particulars at all.The District Judge has not accepted them as particulars. He hasmerely made an order that a certain issue shall be added to thosealready accepted. That issue is in general terms. It is “ Has theplaintiff been guilty of misfeasance or neglect of duty, and if hisdismissal by the defendant be illegal, is he liable to dismissal bydecree of Court ? ”
It is quite clear that, if the plaintiff is to be called upon to answera charge of this sort, it should be made against him with the greatestdefiniteness and particularity. The list of so-called particularswhich has been filed in the case gives him ho sort of information.It is vague and general in its terms. It contaihs only a single date,and most of the paragraphs simply make use of the phrase “ at anytime ” iojc the purpose of indicating what it is that is charged againstthe plaintiff. It would not be proper that a gentleman exercisinga public duty should be called upon to meet vague and generalcharges of this nature. The District Judge will no doubt see, whenthe matter comes up before him again, that all charges that thedefendant has to make against the plaintiff are specified with thefullest particularity.
For the reasons I have explained, I am of opinion that the appealshould be dismissed, with costs.
Sckneideb A.J.—I agree.
Appeal dismissed.