024-NLR-NLR-V-67-T.-A.-DINGIRI-APPUHAMY-and-5-others-Appellants-and-TALAKOLAWEWE-PANGANANDA-THE.pdf
Present: Abeyesundere, J., and Sirimane, J.T.A. DINGIRIAPPUHAMY and 5 others, Appellants, andTALAK OL AWE WE PANGANANDA THERO and another,
Respondents
S. G. 350 of 1962—D. G. Kurunegala, 1184jSpl.
Buddhist ecclesiastical law—Action against bhikku on ground of parajika—Misjoinderof defendants and causes of action—Dismissal of action on that ground—Validity of such order—Civil Procedure Code, s. 17.
There is no provision in the Civil Procedure Code or any other law requiringan action to be dismissed where there is a misjoinder of causes of action. Itis, therefore, improper for the Court to dismiss an action on the ground ofmisjoinder of defendants and causes of action without giving an opportunityto the plaintiff to amend his plaint.
The plaintiffs, who were dayakayas of a Vihare, sued for a declaration that the1st defendant, who was a bhikku resident in the temple, was guilty of “ parajika ’ ’and had, therefore, forfeited his right to be a bhikku. They also prayed for anorder directing the 2nd defendant, who had jurisdiction over the temple in hiscapacity as Mahanayake Thero, to take the necessary measures if the 1stdefendant was declared to have forfeited his right to be a member of the Sangha.
Held, that there was a misjoinder of defendants and causes of action. Inas-much a^, under section 17 of the Civil Procedure Code, no action should *'edefeated by reason of misjoinder of parties, the plaintiffs should be givenan opportunity to amend their plaint so that the action should proceed againstthe 1st defendant only.
-A.PPEA1i from a judgment of the District Court, Kurunegala.
H. V. Per era, Q.G., with Vernon Jonklaas, for the Plaintiffs-Appellants.
E. B. WiJcramanayaJce, Q.G., with P. N. Wikramanayake, for the 1stDefendant-Respondent.
George Gandappa, for the substituted 2nd Defendant-Respondent.
January 22, 1965. Abeyesundere, J.—
The plaintiffs are dayakayas of the Sulugal Vihare in the KurunegalaDistrict. The 1st defendant is a bhikku resident in and maintained outof the temporalities of the said Sulugal Vihare. The substituted 2nddefendant is the Mahanayake Thero of the Malwatte Vihare in Kandy.The original 2nd defendant was the predecessor in office of the substituted2nd defendant.
The plaintiffs alleged that the 1st defendant was convicted of theoffence of murder of a bhikku called Seelananda, that he was sentencedto death, that such sentence was commuted to one of imprisonment,that he was imprisoned for about 10 years and that thereafter he wasreleased from prison, and that he was guilty of “ parajika ” as he hadcommitted the aforesaid offence of murder. The plaintiffs also allegedthat the said Sulugal Vihare was subject to the jurisdiction of the Maha-nayake Thero of the Mai watte Vihare, that they made a complaint to thesaid Mahanayake Thero in regard to the offence committed by the 1stdefendant, and that the said Mahanayake Thero had failed and neglectedto hold an inquiry into such complaint and make an order thereon.
In the answer filed by the 1st defendant he admitted his convictionof the aforesaid offence of murder and the sentence passed on him.The original 2nd defendant stated in the answer filed by him that “ hehad considered the matter referred to in the plaint against the 1stdefendant and had decided that the 1st defendant had not committedan offence, which would cause his expulsion from the priesthoodas contemplated in the Buddhist ecclesiastical law ”.
The plaintiffs prayed for a declaration that the 1st defendant hasforfeited his right to be or to officiate as a bhikku and to be resident inand maintained out of the temporalities of the said Sulugal Vihare. Theyalso prayed for an order directing the 2nd defendant to take such measuresas may be necessary if the 1st defendant is declared to have forfeitedhis right to be a member of the Sangha.
The learned District Judge who tried the action found that there was amisjoinder of defendants and causes of action and on that ground dis-missed the action. The plaintiffs have appealed from the judgmentand decree of the learned District Judge.
It is clear from the plaint that the relief sought by the plaintiffs fromthe 1st defendant and the relief sought by them from the 2nd defendantare not in respect of the same cause of action. There is therefore amisjoinder of defendants. The causes of action pleaded in the plaintare not against the two defendants jointly. There is one cause of actionagainst the 1st defendant and another cause of action against the2nd defendant. There is therefore a misjoinder of causes of action.
Section 17 of the Civil Procedure Code provides that no action shall bedefeated by reason of the misjoinder of parties. The action of theplaintiffs should not therefore have been dismissed on the ground of mis-joinder of defendants. There is no provision in the Civil Procedure Codeor any other law requiring an action to be dismissed where there is amisjoinder of causes of action. It was improper for the learned DistrictJudge to have dismissed the action of the plaintiffs on the ground ofmisjoinder of defendants and causes of action without giving an oppor-tunity to the plaintiffs to amend their plaint.
amend their plaint so that the action may be against the 1st defendantonly. The 1st defendant shall also be allowed to amend his answer ifbe desires to do so. The issues already framed shall be abandoned andfresh issues shall be framed on the amended pleadings. The trial of theaction shall be proceeded with on the basis of the fresh issues.
The 2nd defendant is entitled to the costs of this appeal which shall bepaid by the plaintiffs. All costs as between the plaintiffs and the 1stdefendant will be costs in the cause.
There are cross-objections to the judgment and decree preferred by the2nd defendant. It is unnecessary to decide those objections in viewof the fact that I dismiss the action in so far as it is against the 2nddefendant.
SnuMAN®, J.—I agree.
Decree set aside.