THAMOTHRAM PILLAI v. ARUMOGAM

079-NLR-NLR-V-28-THAMOTHRAM-PILLAI-v.-ARUMOGAM.pdf


( 406 )
1926.
•,••i
Present: Schneider A.C.J. and L'yall Grant J.THAMOTHRAM PILLAI v. ARUMOGAM"
27—JO,. -C. Jaffna, 19,852.
Injunction?—Action by' one trustee against. anomcr-—Hindu ' Tempo-ralities—Courts Ordinance, s. 87 (I)..
In an action brought by the co-trustee of a Hindu templeagafnst .another for the removal of an obstruction, caused by abuilding to the free passage of religious -worshippers
Held, that the plaintiff was entitled, to! 'ask for . an . orderfor the removal of the building.
A
PPEA.Ii from a judgment of the District Judge'of Jaffna.
The facts appear from the judgment! ' M:'1
Hayley (with Rajaratnam), for defendant, rappellant.
H. F. Perera, for plaintiff, respondent
December 20, 1926. Schneider A.C.J.—
The plaintiff, a trustee and manager of a Hindu temple jointlywith the defendant, objects to the defendant erecting two roomsin the temple courtyard ojd the ground that they will causeobstruction to the free passage of the worshippers at the temple
( 407 )
Vnd also Inconvenience .to them during processions by straitenihgthfe space available. The defendant denied that any obstructionw£s caused in fact, or was likely to be caused, and pleaded thatthb rooms toe^e intended for a residence and1 store for the*** officiating priest” of the temple. It was stated in Court thattlib* -foundations had' already been laid elsewhere in the courtyardfor'a residence for the priest, and the parties agreed that the Judgeshbuld "'inspect and decide which building- is suitable for thatpurpose.” This was in April, 1925, before Mr. Woodhouse. InOctober, 1925, Mr; Kantawala, District Judge, inspected theplace- in the presence- of the advocates, proctors, and others, andnoted on the record that he would express " his impressions uponthe inspection- along with his judgment.” But instead of decidingthe- case upon the conclusions he arrived at as the result of hisinspection which he* was entitled to do, and could have done as thoseconclusions stand disclosed in his judgment, he entered upoii aIobg trial which has1 made no contribution of any Value to thedecision of the fact about which alone the parties were- in contro-versy. This District'Judge, we were informed*, is a Hindu gentle-man and familiaf with the- ceremonials and festivals • of the Hindureligion. Whether1 that statement be’ correct or not, he givesunmistakable ’ Indications of knowledge * and familiarity with aparticular religious'procession' in- regard'to the- conducting of whichthe evidence'-was ' principally directedtoprove the-■causing of
obstruction.Apart from the fact thatbythe agreement of the
parties the -Judge" Was constituted arbitrator of the matters indispute and his decision-therefore was final, hs there has been atrial and evidence called, I would say that I see no- reason what-ever to differ from ■ the learned Judge's finding that’the buildingcomplained about “ does cause obstruction and inconvenience tothe worshippers- who attend the temple during the* festivals andon other occasions.” This was issue 2. Upon that ■ findingplaintiff' was entitled to judgment. The District Judge gavejudgment for hiin. But there were three other issues. Issue 1raised the question whether it was competent for the defendantto put up the building without the consent of the plaintiff, whowas the manager jointly with him. One of the other two issuesraised the question whether the plaintiff was acting in the interestsof the templein bringing the action, orforthe benefitof his son-
in-law. Theother issue was whetherthedefendantwas acting
in the interests of his brother-in-law and with a_ view to harassingthe plaintiff's son-in-law, m putting up the building. It should bepointed out here that these issues did not raise—nor was thereany issue raising—the question whether the action could be -main-tained or not. The District Judge held that both- the plaintiffand the defendant had acted, not so much in the interests of
SCBMBXDBB
Thamothnun
BiU&iv.
Arumogam
( 408 )
1089* the temple, but, as alleged in the issues, in the interests of their^■""jftunsK respective relations. In other words, that both parties had actedA.CJ. without bona fides. On the first issue he held that the defend?ThamoOwam kad no right to put up the .building without the plaintiffsPiUaiv. consent. In the decree he granted an injunction restraining theArumogam defendantcontinuing the building of the rooms, provided
the plaintiff deposited within a fixed period Bs. 200 to the creditof .the temple for the purpose of erecting another building on asuitable site in lieu of the present one. He ordered the buildingto be demolished, and declared that if that sum of mopey werenot deposited that the defendant was at liberty to continue theerection of the building in such a manner as would cause the leastinconvenience to the “ temple processions/’ Finally be ordered■ each party to bear his own costs. The reasons’ which actuatedbim to make these orders as to the sum of money to be paid andthe costs would appear to be that he desired to punish both theplaintiff and the defendant for their want of bona fides. He findsthat the kurukal who gave evidence is the person whom the defend-ant described as the ‘ ‘officiating priest” for whose use the roomswere intended. He finds that this kurukal had not only not requested' the defendant to put up a residence for him at this particular spot,but that the kurukal says that be would not live in that buildingif it were completed because it is quite unsuitable, as it lacks water,a back compound, and privacy. He finds that there already existsa store-room for the temple vessels, and that if more accommodationwas required for that purpose, it could be easily obtained at asmall cost by constructing a roof over an existing building. Themain directions of the decree accordingly would appear to beeminently equitable. It does contain sotme inconsistencies.Although there is no evidence as to the terms of the trust uponwhich the parties hold the property, the evidence called at thetrial proceeded upon the footing that they held the property forthe benefit of the worshippers at the temple. That being so,when the Judge came to the conclusion that the building wouldcause obstruction and inconvenience to the worshippers, and thatthere was no real necessity for it, he should not have made theorder restraining the continuance qf the building depend upon theplaintiff paying a sum of money. I will not interfere with thatpart of his order which decreed him to pay that,sum of money, asthe plaintiff has not appealed against it. The decree is vague as tothe person who is to “ demolish” the building. It alsq fails to6&y what would happen if the defendant or any person underobligation to “ demolish ” it fails to carry out the order.
On appeal, Mr. Hayley attacked the plaintiff’s action as beingmisconoe^ffid. He argued that the Court had no jurisdictionto grantlrai injunction upon the facts relied on by the plaintiff,
( 409 )
inasmuch as the plaintiff's application cannot be sustained under th$ ^provisions of section 87 of the Courts Ordinance, under the provisions scmnsmBKof which alone a District Court is empowered to grant injunctions.
The initial weakness of this objection to the action is that it is Thomotkramtaken for the first time on appeal. But as it goes to the root ofthe matter, I will deal with it. If what the plaintiff demandsin this action be brought within section 87 (1) of the CourtsOrdinance, the argument fails, and there can be no other objectionto the success of the action upon the findings of fact which theDistrict Judge had arrived at, and which, as I have already stated,
I accept. The material portion of section 87 is .the following: —
“ Where it appears from the plaint that the plaintiff demandsand is entitled to a judgment against the defendantrestraining the commission or continuance of an act, thecommission or continuance of which would produceinjury to the plaintiff, it shall be lawful for such Court togrant an injunction restraining any such defendant frpmcommitting or continuing any such act.
Can what the plaintiff complains as being done by the defendantbe said to produce injury to the plaintiff? “ Injury 99 wouldmean the infraction of a legal right. It is found as a fact thatthe existence of the building which is being erected would causeobstruction to a religious procession in which the worshipperstake part. Its existence would, therefore, be an infraction oftheir legal right to have this procession conducted and take partin it. The plaintiff, as manager or as trustee, is bound to see thatno such obstruction is caused. If he were the sole manager ortrustee, he would have undoubtedly the right to maintain thisaction against another person who is not a trustee or managerto prevent the erection of the building complained of. Does itmake any difference to that right that the defendant is a co-trustee and manager? Mr. Hayley argued it does. I thinkit does not. It is the duty of the defendant equally with * theplaintiff to administer the property of which they are co-trusteesand managers in such a manner as to preserve the amenities of . thetemple. The defendant is committing an act inconsistent withhis duty as a co-trustee, and if the plaintiff stood by and permittedit to be done, the plaintiff himself would also be answerable forthe wrongful act of the defendant. I would, accordingly, holdthat the continuance of the building would produce injury to theplaintiff as co-trustee and manager with the defendant, and thatthe plaintiff is therefore entitled to judgment against the defendantrestraining the continuance of the building.
•It was argued by Mr. Hayley that it was contrary to the principlesupon which an injunction is granted to direct the building mquestion to be demolished. It is true that injunctions are not
,( 410 •)
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Thamethram
Piltoiv.
Arwnogam
granted -directing something to, be. done, but that» something shooednot be -done.- The plaintiff's present ection ,i?v not only for.injunction, but also {or an order apart from the injunction thatthe obstruction should be. removed. That he is entitled to ask.I, would affirm so much of the decree , as .orders that Jfche defendant.restrained :from building the two."rooms on (the land, and thateach- of the parties should bear ;his own costs .of the -aption.:to-the rest of the decree, my order is as follows: .Tb,e defendant .4sordered to pull down the. said building in such a manner .as to qajsethe least damage to -the materials used in the building. If |aefails todo so within, two months ofthedatefrom whichthis recpnd
reachesthe District Court of Jaffna,theplaintiff isauthorized
to pulldown the said building/andthe' defendant 'must pay
to 'theplaintiff • the costs incurredbytheplaintiff indoing the
work.:
The plaintiff must deposit. in Court .a sum pf Bs. 200 withinone month of the record reaching the lower .Court,, to .the creditof the temple, for the purpose of erecting. another ^building on asuitable site in lieu of the building directed to be pulled down.On failure of the plaintiff to pay the said sum, this order shall' beenforced at the instance of the defendant as if He: hfeld an::or'derfor the payment of that Sum into Court for the purpose5 aforesaid? fI
.. The.defendant must pay:to -the plaintiff his costs, of,.this..appeal-.iyall Grant J.—I agree.