100-NLR-NLR-V-05-SITHAMBARAM-v.-PALANIAPPA.pdf
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SITHAMBABAM v. PALANIAPPA.m2-
May 19, 20
D. C., Colombo, 16,768.and28‘
Voluntary association formed for worship of a god and for acqutnng property tobe dedicated to religious use—Dispute between members of the association-*
Refusal of one faction to permit the other to join in worship andadministration of the property—Action for restoration of rights andinjunction pendente lite—Delay of plaintiffs to come into court after riseof dispute.
Where a dispute arose between members of a voluntary association formedfor the worship of a god and for acquiring property to be dedicated to thetemple and for managing its affairs, and one faction was alleged to haverefused in July, 1901, to permit the other to join- in the worship andadministration of the-property belonging to the temple, and an action wasraised in May, 1902, praying that the plaintiffs may be declared jointly withthe defendants entitled to worship in the said temple and administer itsaffairs, and that an injunction may be allowed restraining the defendantsand their agents and servants from impeding the plaintiffs and their agentsand servants from entering and worshipping in the temple and administeringits affairs, pending the decision of the case,—
Held, that the delay of the plaintiffs to come into court ten months afterthe rise of the dispute disentitled them to the ad interim injunction prayedfor, so as to interfere before final decree with the course of the defendants’conduct.
O
N the footing of the following plaint, instituted on the 6thMay, 1902, the plaintiffs moved for an injunction again&t
the defendants.
The plaint ran as follows: —
The plaintiffs and the defendants are residents at Sea streetin Colombo within the local .limits of the jurisdiction of thisCourt, and comprise all the members of the voluntary associationof Nattu Kotte Chetties called Pudukovil Kngaram, which, has beenin existence since the year 1850, and was formed with the objectof perpetuating the worship of, the god Kadirasen, and acquiringmovable and immovable property to be dedicated to religioususe connected with the worship of the said god for the commonbenefit of the members of the said association.
The two temples' known as Pudu Kadirasen Kovil, situatedat Sea street in Colombo and at' Wellawatta, were built since thefomation of the said association with moneys collected from themembers of the .said association, and by usage' amongst them hasbeen dedicated to, and used for the worship of, the said god.
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1902.3.Divers lands and houses at Wellawatta and at Sea street, as
20> W®N as larSe quantities of gold and silver ornaments, have also fromtime to time been purchased with the moneys collected as afore-said for the use and benefit of the said temples.
A gold and silver car, to be used in connection with thecustomary religious festivals that are from time to time celebratedat the said temples, has been recently purchased in India at a cqstof Bs. 30,000 with the moneys collected as aforesaid, and the saidcar is expected to. arrive in Colombo shortly, when it is to be takenin solemn procession from the said temple at Sea street to the saidtemple at Wellawatte at the customary festival, which is to take placein the month of July next.
Since the acquisition of the said lands and the buildings ofthe said temples all- the members of the said association have had,as they still have, the common right and privilege to worship atthe said temples, and to join and to contribute to and to take anactive part in all religious festivals in connection with the temples,and the right to be summoned to and to attend all meetings inColombo in connection with the management of the affairs of thesaid temples, the investment and disposal of the funds of the saidtemples, the regulation of all matters connected with the prepara-tion for and celebration of the aforesaid festivals, as well as allother matters and things relating to or connected with the saidtemples or the property thereto belonging.
Owing to a recent dispute between the plaintiffs and thedefendants, the defendants have wrongfully taken exclusive-possession of the said temples, as well as all and singular the landsand tenements (save and except two houses at Sea street), the goldand silver ornaments, and all other property belonging to the saidtemples as aforesaid; and have placed persons in the said temples,and now keep them there, to prevent the plaintiffs from worship-ping therein, and to resist by force, if need be, the entry of .the-plaintiffs or any of them into the said temples, and have preventedand do prevent the plaintiffs or any of them from entering therein,:and the defendants are concerting measures, without calling theusual meeting of members hereinbefore referred to, for the soleand exclusive conduct by and among themselves of the forth-coming annual festival called Chittra Poosai, which is to be heldin connection with the said temple at- Sea street on the 12th dayof May, 1902, and which all the members of the said association-have had, as they still have, the common right and privilege to join,,to contribute to, and to take an active part in; and the defendantsdo further threaten to deprive' all and each of the plaintiffs oftheir and his right to co-operate in the preparation for and conduct
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of the said festival, or take any part therein whatsoever, to the .1902.damage of the plaintiffs of Rs. 5,000.M<ond%2°’
It has been a rule, binding by common consent on all themembers of .the said association since the year 1850, that no fundssubscribed by the members of the said association for religiouspurposes therewith connected shall be applied to any purposewhatsoever without the united consent of all the members of thesaid association expressed at a meeting for that purpose convened,an'd that no moneys should at any time be borrowed for suchpurposes without such united consent as aforesaid.
The defendants have, contrary to the said rule, borrowedlarge sums of money and expended the subscribed funds as wellas the borrowed funds of the said association in connection withthe purchase of the said car, and for divers religious festivals andotherwise during the past ten months without such commonconsent as aforesaid, and have further declared their intention,contrary to the said rule, to apply such funds to the said festival inMay and the customary bi-annual festival in July, 1902, withoutsuch common consent, the said funds being presently in thepossession and control of the defendants or some one ofthem.
The value of the said temples and the -immovable andmovable property thereto belonging as aforesaid, from whichthe plaintiffs are excluded, and which they are debarred fromenjoying as aforesaid, is of the value of Rs. 100,000, and the saidproperty is all situated at Colombo within the jurisdiction of thisCourt.'
Wherefore the plaintiffs pray—
That the plaintiffs, as members Of the said voluntary associa-tion, may be declared, jointly with the defendants, entitled (a) toworship in the Said temple; (6) to join and to contribute to and totake an active part in all religious festivals and ceremonies con-nected with the- said temples; (c) to be summoned to and to takepart in and vote at all meetings of the said association; (d) to the•custody and care of the movable and immovable properties be-longing to the said temples; (e) to borrow moneys, receivesubscriptions and donations, and from time to time to make'disbursements in connection with the said temples, and to purchaseproperty for the use and benefit of the said temples.
That the defendants, their servants, and agents be restrainedfrom impeding the plaintiffs or any of them from entering andusing the said temples for any purpose connected with the saidobjects of the said association, and specially the said festivals onthe 12th May, 1902, and in the month of July, 1902.
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1902.8, Thatthe defendants be restrainedfrom taking any steps
May 19,20,towards thecelebration of the festivals andtheremoval ofthe said
and-28.
——-car in procession to the exclusion of the plaintiffs.
That the defendants be restrained from applying the fundsof the said association in their possession, custody, or control, orany part thereof, to the said festivals, or from expending the samein connection with the management or otherwise of the said templeswithout the common consent of the plaintiffs and the defendants,
The plaintiffs further pray for an interim order restraining
the defendants, their servants, and agents from impeding theplaintiffs Orany of them from enteringandusing theaforesaid"
temples forany purpose concerned withtheobjects ofthe said
association, and specially the said festivals on the 12th day of May,1602, and in the month of July, 1902, and from taking any stepstowards the celebration of the said festivals or the removal of thesaid car to the exclusion of the plaintiffs, and from taking anysteps in the preparation for and conduct of. the said festivals with-out. summoning each of the plaintiffs to a meeting to settle thepreparation, conduct, and observance of the said festival, and fromapplying the funds of the said • association in their possession,custody, or control, or ahy part thereof, to the said festivals withoutthe common consent of the plaintiffs and defendants, and fromexpending the same in connection with the management orOtherwise of the said temples without such consent.
That the plaintiffs also pray that the defendants may bejointly and severally condemned to pay to them the said sum ofUs. 5,000 as damages.
The defendants appeared when plaintiffs moved for summonsand injunction and showed cause. The District Judge (Mr. D. F".Browne) heard counsel for both sides, and allowed “ an interim“ order restraining the defendants, as prayed in paragraph 5 of the“ plaint, until the hearing and decision of the application for the"•interim injunction.”
On a subsequent day counsel for' plaintiffs moved on thematerials already before the Court for an interim injunctionpendente lite, in terms of paragraph 5 of the plaint, plaintiffs under-taking to be answerable in all damages.
Counsel for defendants having examined the deponent of theaffidavit filed by plaintiffs, the District Judge allowed the interiminjunction by the following order on the 12th May:—
“ If I have apprehended the chief points of the contention ofthe counsel for the defendants, ‘ they are that the plaint does not
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disclose any cause of action that it avers one right of a religiouscharacter—to worship in the temple—and four rights of matters ^^J[0gg20,of a non-religious character, viz. (to quote para. 5 of the plaint), to——
join and to contribute to and to take an active part in all religiousfestivals in connection with the temple; to be summoned to andto attend all meetings at Colombo in connection with themanagement of the affairs of the temple; the regulation of allmatters connected with the preparation for and celebration ofthe aforesaid festivals, as well as all other matters and thingsrelating to or connected with the temple or the property theretobelonging.The ' lattermight be precisedinto^—to managein
Xagaram or general meetings the affairs of the temple in general;to prepare for religious festivals; and to take an active part inthe festivals themselves.
“ And the counsel for the defendants says that the plaint andits cause of action are defective in not specifying whereon anysuch -right js founded,whence it springs;thatit mentionsno
rules. &c., of the Xagaram or any other voluntary associationwhich are a charter of the rights of its members, or a mutualcontract between its members, whereon they can claim rights atlaw to be enjoyed by themselves or to be allowed and obeyed byothers. Finally, he drew attention that there is no speciallegislationhere relatingto voluntary associations,such as obtains
elsewhere,and might,if in force, havebeenhelpful tothe
plaintiffs' case.
“ It appears to me that we may consider these matters in the lightof local decisions, which are more or less cognate thereto, viz., asto when a Civil Court here has or has not jurisdiction to interferein cases involving issues more or less concerning mattersecclesiastical. As regards voluntary associations themselves,
I remember only two cases here, and those concerned, I believe,the right of a secretary to recover subscriptions. The laterdecisions as regards this point of jurisdiction are, I believe, thosereported in 2 S. C. B. 354, 1 N. L. R. 354, and 2 N. L. R. 30, inthe latter of which Bonser, C-J-, pointed out that the principlesof law governing the case were stated by Lord Cranworth inForbes v. Eden (L. R. 1, Scotch Ap. 568). These I may simplystate to be that Courts can take cognizance of the rules of avoluntary society entered into for the regulation of its own affairswhen there arise questions concerning the due disposal andadministration of property. In that case, no doubt the plaintiffs(priests) alleged that they had been debarred from exercising theoffice they held in a voluntary association, and also that a right ofproperty connected with that office had . been infringed, and that
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1902. they thereby suffered pecuniary loss; and here it is true that theM%]92820' Plainti£Es make no averment of any such pecuniary lose. In the
other cases, also of priests, this question of pecuniary loss was
made the test of their right to.sue, but, as Lawrie, J., remarked ofthe plaintiff in 1 N. L. B. 355, ‘ he does not sue as trustee,’ i.e.,in respect of a right to have and control property independent ofany personal benefit to himself thereby.
“I therefore. consider that in this case there arises the largerquestion of the right of a person to sue to have himself main taintedin the exercise of rights to take part in ‘ the due disposal andadministration of property.’ The plaintiffs claim a right to Becalled to and take part in the meetings of the Nagaram in connec-tion with the management of the affairs of the temple and theregulation of all matters, and things connected with thetemple or the property thereto belonging. They set out in thatplaint what is the property,—generally speaking, templess, house 'property, and gold and silver articles,—and they say they have aright in conjunction with defendants to administer these, and thattheir value is Rs. 100,OOO.
But jt is objected that it is not shown whence those rights arise,what rules or regulations of the voluntary association give themthose rights.
“ For my part, I consider that, as they should avoid pleadingevidence, and as verypossibly there areno written rules of
management formulating the practice which has obtained for overfifty years, they have sufficiently averred in the 5th and 7thparagraphs of the plaint that certain rights and privileges ofadministering the property , of the temples belong to them andtheir exclusion therefrom.
“ And if it were necessary that they should aver loss of somebenefit or advantage to themselves, I do not know that this mustnecessarily be that which in the first instance is a . monetaryloss. The evidence sofar is that by theact ofthe defend-
ants the plaintiffs have been interfered with in the fullexercise of their rightsof worship at thetemple.Possibly an
action de injuria wouldbe open to themthereby,and if they
have suffered the annoyance, pain, or any depreciation in theirsocial position thereby, for which in that section they would begiven a monetary compensation, I should consider that is a losswhich, accompanying their exclusion from the exercise of therights, would give them a cause of action. As to what was urgedof contradiction between first plaintiff’s’ evidence and his cross-examination, I have not observed aught so far save as to the words‘ all the members ’ in the first. paragraph of the plaint. I do not
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know why that averment was made. I have had the query in mymind whether the pleaders wanted to avoid thereby some technical Jrequirement of the Voluntary Association Act which wouldrequire all to be in Court, suing or being used, when one memberas a secretary cannot sue? But when we have section 18 in ourCivil Procedure Code, and also section 16, I cannot see why Jtshould have been so. But even if it were, I doubt if the causeof pction were so falsified thereby that relief should be refused.
“ As to the objection of delay. I do not think I am yet iu a positionto say whether the plaintiffs should be held chargeable therewithor with any default in not having paid as yet into the templetreasury the dues or subscriptions which admittedly they areliable to pay. The first plaintiff’s cross-examination has given usso few of the facts, that if I were to attempt to enshrine them iua nursery rhyme, I could not get any further than the initial lineof ' sing a song of sixpence..' The great event of the separationof the co-religionists into two parties over some secular quarrelhas arisen apparently from a trivial cause; and whether it isthat defendants excluded plaintiffs .and the latter neverthelessdetermined that the collection for the temple funds should stillbe made, to be delivered thereafter, so that the common cause-should not suffer; or whether it was that they withheld funds tocompel a typical re-instatement of the member of their party bythe return of the fine to him, however nominal its amount-(and to me its* insignificance of amount suggests that censure andnot fine was in truth the punishment imposed), I am not yet ina position to judge, nor, consequently, who should have takenaction for a derisory result if peace were not made, but did not,and so is in the fault of delay. Very possibly both parties are tobe commended for their abstention from more serious measuresso long as there might be reconciliation, and there should be nosuch blame to either.
“ I think I have glanced at most of the subjects discussed, withthe result that I find that, so far as the little evidence yet adducedinforms me, there has been a voluntary association for over fiftyyears, who had such a general procedure as plaintiffs indicate,whereby it. may be assumed that the rules were that the procedureshould be such; and that after this time there has been a departurefrom the procedure, in that those entitled to confer upon anddirect the administration of property have not been called todo so by the defendants, chief of whom is one designated asthe trustee or manager of the temple—I suppose somewhatresembling the managing director in a limited company—and that
the exclusion has even been directed to affect the plaintiffs in27-
1902.
May 19, Wrand 28.
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1002. the religio.us element of the lives of each of them personally.
May 19,20, Should that change be suffered to continue, or should the status beand28. restore(j a8 far aB possible in the direction of suffering all to joinin such matters, as their co-operation therein might tend to restoreamity? The balance of convenience plainly is that, whiledefendants continue to enjoy their original rights, the plaintiffsshould be also allowed to participate therein, they having giventheir undertaking that the monetary interests of the commonassociation should not suffer thereby.
“ I therefore allow the plaintiffs the ad interim injunctionwhich is prayed, and I grant it because it gives to the plaintiffsand yet allows to the defendants all that, if there had been nobreach in their amity, each would fully have.”
The defendants appealed.
The- ease was argued in' appeal on the 19th and 20th May,' 1902.
Bawa (with him Van Langenberg and F. M. de Saram}, forappellants.—T-he plaintiffs are not entitled to an injunction, owingto' the ..delay which has occurred between July last, when thedisputes between the parties, arose, and the May following, whenthe plaintiffs came into Court. This delay shows that theirapplication for an injunction now is simply vexatious. Whyshould not the state of things which has existed during the lastten months 'continue for soipe time more, till the action is> finally- disposed of ih the Court below? In the case of Malar v. Kandu(8 S. C. 5?. 97), it was. held that delay disentitled a party to thisform-of relief. Vice-Chancellor Bacon said, “It is one of the‘ ‘ most wholesonie rules that a person who comes for the extra-“ ordinary relief of an injunction should come speedily.” Isaacson v.Thomson, 41 L. J. Chancery 101; D. G., Kalutara, 8,025; SupremeCourt Minutes, 6th June, 1899. But the plaint is defective. It isalleged vthat though the plaintiffs and defendants together forman association for worshipping a certain god, yet they have theright to acquire property and hold it -for the benefit of all themembers of the association, and that in point of fact they holdproperty worth Rs. 100,000, and have a right to administer itaccording to certain customary ways. An association of more .thdn twenty persons which carries on business for profit isillegal if not registered under section -2 of Ordinance No. 9 of1867. Ij> is admitted by the plaintiffs that hundreds of Nattu KotteChettiesare members of the'association. And it has been heldthat under the Indian Companies'’ Act X. of 1866 such an associa-tion could not obtain an injunction if not registered (Sabaji v.Sagu, I. L. R. 1 Bombay, 550). The plaint does not say that the
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temple and the properties in the hands of the parties are vested1802.
in anybody. The title deeds are not produced, and it is neither^ '
alleged nor proved in whom the title is. Some mention is madeof a Nagaram, but its constitution is not set out, and there isl,noevidence that any of the parties to the suit are beneficiallyaffected by the properties said to be in existence. If no right isshown to the property, the complaint simply amounts to adeprivation ’ of some religious rites and privileges. Our CivilCourts will not interfere in matters purely religious. Marshall’sJudgments, 656; Creasy's Reports. 155; Kurukkal v. Kurukkal(1-8. C. R. 3547); Lebbe v. Koreen (1 N.L.R. 351); Aysa Vmma v.
Abdul Lebbe (Rd-mandthan, 1867, 240); Ayer v. Changarapillai(2 N. L■ R. 30). In purely ecclesiastical matters such as the presentcase appears to be, in that the plaint alleges that the defendants didnot allow plaintiffs to take part in certain religious ceremonies',our Courts will pot. interfere. Assuming that the association waslegally formed, it cannot be said that the plaintiffs were, at thefiling of the plaint, members of it, as' they admit that for severalmonths previous thereto they had not conformed to the rule orpractice which requires them to make contributions in the mannerpleaded in the plaint; and it .is not denied that they are in unlaw-ful possession of some of the funds, In these circumstances theyhave no right to come into Court praying for such relief as theyhave grayed. • Under section 87 of the Courts Ordiuahce theright to grant an injunction is exercisable only where the injurycaunot be easily assessed in damages. Here damages have beenactually estimated and averred. In Adappa v. Arumugam (28. C. C. 98), it was held that no injunction should be issued whenirremediable damage is not likely to arise. Zilva v. Lee (6 8. C. G.
144). No irremediable damage has been established.
Dornhorst (withSampayo. H. J.G.Pereira, andDe Mel), tor
respondents.—Theplaint submittedtoCourt is acopyof that
drawn by Messrs.Withers and Layard(afterwards -Judgesof this
Court) in D. C.,Colombo, 46j inasimilar case.Mr.Justice
Clarence granted an injunction to the plaintiffs in that case.The plaintiffs and defendants -are members of the -'Nagaram.They have a common interest in all the properties purchased.The plaintiffs have done nothing to forfeit this membership.Defendants have not denied on oath any allegation made jn theaffidavit filed on behalf of the plaintiffs, nor Have averred any-thing against the plaintiffs, who were entitled to withhold their’subscriptions in view of t-heir exclusion from worship in thetemple and management of ,the concern. The plaintiffs stand
1902.
May 19, 20,and 28.
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aloof in consequence of a decision arrived at by them. Thatdecision is bond fide. It is immaterial now to consider whetherit was right or wrong. Kerr’s Injunctions, 467 (second edition).In the case of P&lai v. Tam,by (2 8. C. R. 59}, the injunctionallowed by the District Court was mandatory and restraining.The mandatory injunction ordered the defendant to remove abuilding already erected, and the restraining injunction^ bade thedefendant not to erect buildings so as -to prevent free access oflight and air to plaintiff’s house. The Supreme Court recalledthe mandatory injunction, but allowed the restFaining injunction,notwithstanding the delay of four years on the part of the plaintiff.So here, the plaintiffs do not want to undo anything, but desire toprevent future misdeeds. Then, as to the want of registration ofthis association—[Moncreiff, A.C.J.—We do not want to hearyou on this point. Wendt, J.—The object of the associationappears to be religious and charitable, not procurement of worldlygain]. Then, as to the jurisdiction of the District Court, thedispute here is not purely religious, as was the case in AysaUmma v. Abdul Lebbe {Ram. 1867, p, 240). The plaint disclosesthat the dispute is also about property. In Fernando v. Bonjean{Ram. 1875. p. 168), known as the Madu Church Case, it was heldthat where a society was: formed on a consensual basis, anyaggrieved person who complains of a violation of its laws andusages, if such rights relate to a matter of mixed spiritual andtemporal character, was entitled to come into Court. Thisprinciple rested on a judgment of the Privy Council in Brown v.TKe Curate and Churchwardens of Montreal {44 L. J. P. C.Cases, p. 1); Ayer v. Changarapillai {2 N. L. R. 30); Chanyara-pillai v. Chelhah {5 N. L. R. 270); Forb'es v. Eden (L. R. 1 ScotchAppeals, 568). Then, as to irremediable injury, that element wasnecessary under the Koman-Dutch Law, but our Code does notview it as essential. Nevertheless, it may be reasonably contendedin this case that the exclusion of the plaintiffs from worship attheir temple is a denial of spiritual benefit which cannot bocompensated for by money, and in this sense it is an irremediableinjury. [Moxcreiff, A.C.J.—I see that even in the Code there isprovision for an application to the Supreme Court for an injunction on the ground of irremediable injury.] Yes, to the SupremeCourt. The injunction' granted by the District Court cannot doany harm to the defendants. The English and Indian Courtshave granted injunctions even in doubtful cases, on the strengthof the doctrine of balance of convenience. Reed v. Richardson{45 L. T. Rep. 54}; O’Kinealy, p. 426, commenting under section492. The injunction has simply left the parties in statu quo ante.
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Preston v. Luck (L. It- 37 Chcui. Dtv. 507, per Cotton, L. J.).1902.
Lastly, aBout the alleged delay. The plaintiffs are not to blame.
They kept the door ajar for reconciliation as long as they thought '
it was possible. The District Judge found that no materials werelaid before him to charge the plaihtiffs with delay. The SupremeCourt granted in the case of Pillai v. Tamby (3 S. C. R. 59) aninjunction, even though plaintiff delayed coining into Court forfour years.*
Bawa replied.
' Cur. adv. vult.
28th May, 1902. Wexdt, J.—
This is an appeal by the defendants against an interlocutoryorder of the District Court restraining them ad interim frominterfering with the exercise by plaintiffs of their rights asmembers of a voluntary association of Nattu Kotte Ohetties calledthe “ Pudu Kovil N agar am, ” to which both parties belong. Thisinjunction was granted on the 12th May, 1902, after hearing thedefendants before issue of summons upon the plaint, and thematerial before the Court was the plaint itself and the firstplaintiff’s affidavit in support, supplemented by the cross-examina-tion of the deponent thereon.
It would appear that the association is in great part, if notaltogether, a religious association, but it is possessed of consider-able immovable and1 movable property purchased out of theassociation funds, including two temples in Colombo dedicated tothe Hindu god Kadirasen, the perpetuation of whose worship* isstated to be the principal object of the association. Festivals inconnection with this worship are held by the association at certainseasons of the year. There appears to have been one in March last;another (called “ Chittra Poosai ”) fell on the 12th instant, thevery day on which the present injunction issued, and' it wastherefore postponed; and a third (the most important, called“ Vale ”) occurs in the month of July, and marks the beginningand ending of the association year.
There are no written rules of the association, and, as might beexpected, the qualifications and rights of members are left in somedoubt by the evidence. The fact, however, that the twenty-oneplaintiffs were members until at least July, 1901, is not denied.The members have the right to worship at the said temples, andto join and contribute to and take an active part in all religiousfestivals in connection with the temples, and the right to besummoned to and to attend all meetings in Colombo in connec-tion with the management of the temples, the disposal of the funds
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1902.
Maj J9,and 28
Wendt,
thereof, and the celebration of festivals. It is averred to be a ruleM- of the association binding on all its members, since its foundationin 1850, that no funds subscribed by members for religious pur-poses shall be applied to any purpose whatsoever “ without theunited consent of all the members expressed at a meeting for thatpurpose convened.
Paragraph 6 of the plaint (which was filed on 6th May instant)averred that “ owing to a recent dispute " between plaintiffs anildefendants, the latter had wrongfully taken exclusive possessionof the temples and other property of the association, had placedand maintained persons in the temples to exclude the plaintiffstherefrom by force if necessary, and were concerting measures,without calling the usual meeting of members, for the sole andexeclusive conduct by and among themselves of the forthcomingannual festival “ Chittra Poosai, ” and threatened to depriveplaintiffs of their rights to co-operate in the preparation forand conduct of that festival, to plaintiffs’ damage of Bs. 5,000.The plaint and. affidavit in support assign no date to thesewrongful acts .of defendants, beyond such as is to be inferredfrom the reference to the “ recent dispute, ” but paragraph 8 of theplaint charged that defendants had, contrary to rule, borrowedmoney and expended such money as well as the subscribed fundsof the- association on the purchase of a gold and silver car, andon the festivals, “ during the past ten months, ” without theaforesaid united consent of the members. The first defendant isdescribed as the “ trustee of the association ” and as “ manager ofthe temple.
One of the grounds upon which the. defendants have resistedthe issue of an interim injunction is that of plaintiffs’ delay, andto dispose of this point it is necessary to examine the evidencebearing upon it in connection with the allegations of the plaintwhich I have just particularized. First plaintiff in his examinationstated that at the meeting of the association in July, 1901 (whatmight be called, the regular annual general meeting), the plain-tiffs objected to the purposes to which certain funds had beenapplied, on the ground that they were not temple purposes. Theobjection failed, and “ the plaintiffs all withdrew from theNagaram last July, and defendants have conducted it since then.They do not allow us in, and even interdicted us from breakingcocoanuts [one of the ceremonies performed in the temples]. Wewere expelled (literally stopped) from all ceremonies. ” Firstplaintiff further stated:“ Since we. objected to the wrong use of
temple moneys, we have not been summoned to the Nagaram. I didnot get notice to attend the Nagaram meetings, as I was not asked
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to and I did not go. After the row we, in a body, separated from
the Nagaram. Four or five of us went after July to the temples“ndzs. ’
with cocoanuts to have them broken, but the temple servantsj
would not break these, and we could not offer them with inoense
and bring them broken home. ” The 1st plaintiff proved' that
he had not paid his subscriptions (payable daily at a certain rate
proportioned, to the quantity of rice received into his stores) for
the year ending last July, owing to some disputes, but the other
plaintiffs paid up to that date. Since then, however, none of the
plaintiffs had paid at all. First plaintiff had, however, collected
the subscriptions of the other plaintiffs, and now held them in .
the name of the temple. He expresed his readiness to deposit
them even now if the dispute were settled. He had not got from
his co-plaintiffs the special contribution which is made for the
Chittra Poosai. First plaintiff further stated that " every Chetty
who comes to Ceylon is a member of the Nagaram. We have to
pay a contribution in order to attend the temple. All Chetties
can worship at the temple, but cannot take a part in the affairs of
the Nagaram without so contributing as I have described. There
is also a necessary contribution to the festival of Chittra Poosai.
and people who do not contribute cannot take part in it, but can
simply go there1. ”
I read this, evidence as establishing that plaintiffs, dissatisfiedwith the management of the association, withdrew from it inJuly, 1901. and the defendants, the majority of the members,carried it on as. before, ignoring the plaintiffs. I say “ as before,»”because nothing is said! to have been done by defendants whichwould have been open to objection, except on the ground thatthe plaintiffs had had no voice in the doing of it. For ten monthsthis state of affairs has continued, and the plaintiffs did. notinvoke the Court’s aid to enforce their rights. The defendantshave done nothing new; they have begun to • prepare for thenecessary festival, as they did for a previous one in-March, whichthey carried out without consulting plaintiffs. The latter didnot even then ask for the present injunction. It is true first-'plaintiff said that some of the Chetties had urged the parties tosettle their differences, and had so urged them about ten times upfio March last, and even after that up till. now; but be did not saythat anything like negotiations have been on foot as between theparties themselves, that defendants’ conduct has shown signs ofyielding or has given plaintiffs reason to believe that the differ-ences wopld be arranged without recourse to law. We have been.asked to bear in mind, and I have given the fact due weight, thatpeople are naturally reluctant to bring before the Court disputes
( 366 )
1902. among members of a religious association intimately associated
May 19,20, with matters- of religious observances and ceremonies. But theandZ8. Court jn such cases has regar<l only to civil rights of property, and
Wendt, J. when these are infringed', a party must beware lest his dilatori-ness in • applying to the law should deprive him of the right toclaim the extraordinary remedy of an interlocutory injunction.
I am of opinion that plaintiffs’ delay in coming to Court disen-titles them to interfere before final decree with the course ofdefendants’conduct,,which has continued for ten months. Soon
afterJulylast theymust 'havebeen apprised of the position
defendants took up. They were then denied the rights ofmembers, to which they believed themselves entitled, and theymight then have invoked the aid of the Court. They didnot do so, and their withdrawing in a body, not insisting ontheir rights but lying by for so long, comes very near, if itdoesnot amount, toacquiescencein defendants’ course of action.
Thecasescited toivs at theargument established that one
of the most wholesome rules on this subject is that a plaintiffcoming to Court for the extraordinary relief of an injunctionshould come speedily. I do not think it can-'be said that plaintiffsin this action -have come speedily, and whatever be the rightswhich they might establish at the hearing, I think they are notentitled to the interim injunction which they have obtained.
I would therefore set aside the order of the District Court withcosts.
Moncreiff, A.C.J.—
•
I aim of the same opinion. The simple question was whetherthe plaintiffs, having brought an action for the restoration of theirprivileges as members of an association to which the defendantsalso belong, were entitled pendente. Ute to an injunction whichwould substantially grant them the privileges which they seek bytheir action. Has the attitude taken up by the plaintiffs entitledthem to this indulgence? So far as I can understand, theyseparated themselves from the main body. Mr. Domihorst tookupon himself the responsibility for a part of the evidence givenby Palaniappa Ohettv, but that witness on more than one occasionaccepted the words put to him. Towards the end- of theevidence, he says that “ after the row we, in a -body, separatedfrom the Nagaram. ” Apart from this evidence, the wholeincident, as described by the plaintiff, leaves on my mind theconviction that they separated themselves from the other party.If they had' done so -for the purposes of litigating and vindicatingtheir rights, and had taken steps to do so at once, they might
( 807 )
have asked for this injunction, but instead of doing so theyproceeded to collect contributions and to use the temple propertywithout paying rent; they also desisted from contributing tothe funds of the association. All this was contrary to the rules,unwritten as they were, of the Nagaram, and, as the plaintiffsthemselves admitted, the mere cessation to contribute was suffi-cient to debar a member from taking part in the affairs of theNagaram. • They have delayed even taking steps to ascertaintbeir legal position for a considerable number of months, and asthey have' maintained their independent attitude towards the othermembers of this association for so many months', I think that nohardship will be inflicted upou them if they continue to preservethat attitude until the decision of the suit.
It was said that they were entitled to be restored to the xtatuxquo ante. I doubt whether this injunction does restore thatstatus, or whether thaF status can be temporarily restored, but Iam quite certain, from the pertinacity with which both sides havefought this matter, that the balance of inconvenience would besecured if the injunction were allowed to stand. For these reasonsI agree with my brother that the injunction should be dissolved.
1002.
May 19, SO,
and 29.
Vtoucnxm,
A.C.J.