052-NLR-NLR-V-11-KANDOLUWE-SUMANGALA-v.-MAPITIGAMA-DHARMARAKITTA-et-al.pdf
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Present: Mr. Justice Wood Benton and Mr. Justice Grenier.
KANDOLUWE SUMANGALA v. MAPITIGAMADHABMABAKITTA et al.
D. C., Colombo, 23,308.
In the Matter of an Application of Mapitigama Buddha Bakkhitafor a Buie Nisi on Tibbotuwawe Siddhartha Sumangala,
Maha Nayaka, and two others, for Contempt of Court.
Contempt ofCourt—Inherent jurisdiction—Characterizing evidence given
by a witness as false pending an appeal—Attempt to interfere withthecourse of justice—Exercise of ecclesiastical jurisdiction—
Apology.
To publish in a newspaper that the evidence given by certainwitnesses in a case pending in appeal was " suppressive of truthand upholding falsehood ” amounts to a contempt of- Court.
T
HIS was an application calling on the respondents to showcause why they should not be punished for contempt of
Court. The facts on which the application was based are statedin the following affidavit of the applicant: —
“I, Mapitigama Buddha Bakkhita, of the Kelani Vihare, inKelaniya, not being a Christian, do solemnly, sincerely, and trulyaffirm, declare, and say as follows:—
“ 1. I am a Buddhist priest and the second defendant in theabove-styled action, No. 23,308, of the District Court of Colombo.
“ 2. The first respondent is also a Buddhist priest and the MahaNayaka or Chief High Priest of Malwatte Vihare in Kandy; thesecond respondent is the editor, and the third respondent is theprinter and publisher of the Sinhalese newspaper ‘ SarasaviSandaresa, ’ which has its office at No. 61, Maliban street, Colombo.
“ 3. That plaintiff in the said action sued me and the first defend-ant, claiming to be a joint incumbent of the Kelani Vihare, and forthe recovery of the sum of Bs. 2,843.75, being income and emolu-ments thereof.
“ 4. The plaintiff claimed .the aforesaid right as one of .the pupilsof Dompe Buddha Bakkhita, who was till his death in January,1903, joint incumbent with the first defendant of the Kelani Vihare.
“ 5. I am a senior pupil of the.said Dompe Buddha Bakkhita, andupon the' death of the latter, I, as such senior pupil, succeededto the rights, powers, and position of Dompe Buddha Bakkhita, tothe exclusion of the plaintiff, who also claimed to -be his seniorpupil. The right of the first defendant to continue as a jointincumbent was not disputed.
1908.
July 6.
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1908.
July 6.
“ 6. The plaintiff and the third defendant above named, whoalso claimed to .be a pupil of Dompe Buddha Bakkhita in the year1903, made a joint complaint to the Maha Sangha Sabha, or theBoard of Priests, at Malwatte Vihare in Kandy, and certain pro-ceedings, No. 128, were had regarding our rival claims.
“ 7. The Chief High Priest Tibbotuwawe Siddhartha Sumangala,first respondent above named, to the exclusion of the ‘ Annu-wijjaka ’ or judge appointed by the said Maha Sangha Sabha, asPresident of the said Board, gave a decision declaring the plaintiffand the third defendant to be pupils of Dompe Buddha Bakkhita,and as such entitled to be joint incumbents with the first defendant,and rejected my claims.
“ 8. The proceedings were tainted with illegalities and irregu-larities, and I refused to be bound by the decision of .the firstrespondent as President of the Maha Sangha Sabha.
“ 9. The plaintiff thereupon brought the above-sfcyled action inthe District Court of Colombo as aforesaid, and, besides producingcertain documents in proof of his rights, called amongst others thesaid Chief High Priest Tibbotuwawe Siddhartha Sumangala, the firstrespondent, and Hikkaduwe Sumangala, High Priest of Adam’sPeak and Principal of the Vidyodaya College, to give evidence inhis behalf.
“10. I contested the plaintiff’s claim on .the ground, amongstothers, that I was the senior pupil of Dompe Buddha Bakkhita,and in proof of my right, besides causing the production' of .theBegister of Ordinations or ‘ Lekanmitiya, ’ wherein my ordinationis duly registered as the joint pupil of Dompe Buddha Bakkhitaand Mapitigama Dhamma Bakkhita, I called as witnesses, amongstothers, Watareka Anu Nayaka, the Second High Priest of theSiamese Sect of the Buddhists in Ceylon, and Alutgama Medhan-kara, members of the Maha Sangha Sabha, who gave evidencein my behalf.
“ 11. The learned Additional District Judge of Colombo, F. B.Dias, Esq., tried the said action, believed the evidence produced byme on my behalf, and delivered his judgment dated January 20,1908, dismissing plaintiff’s action with costs, and upholding myclaim to be the senior pupil of Dompe Buddha Bakkhita. Aggrievedby the said judgment, the plaintiff has appealed to the Hon. theSupreme Court, and .the same is now pending before .this Court.
“ 12 Commenting on the plaintiff’s case and .the evidenceadduced by him, the learned District Judge, in the course of hisjudgment, observed:‘ The case centres on the genuineness or
otherwise of a certain entry. in the Lekanmitiya, or ola register of
Ordinations, kept at the Malwatte Yihare in Kandy The
plaintiff has failed to satisfy me that the entry is a forgery. ’ Andwith reference to the evidence of the Chief High Priest SiddharthaSumangala, the firrespondent, and the plaintiff’s chief witness,
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the learned Judge observes: * His evidence with regard to what,transpired at the Malwatte inquiry touching the production of theregister is so hopelessly contradicted by .the plaintiff’s own witness,the High Priest of Adam's Peak, not to mention the defendant andhis witness, the Anu Nayaka of Malwatte, that 1 am compelled tothrow it aside ’ ; and further, with regard to the decision of theMaha Sangha Sabha, the learned Judge holds: ‘ It was manifestlyan improper decision, forced upon the second defendant (theaffirmant), without allowing him to put forward the best piece ofevidence, namely, the register, and which decision was repudiatedby him as soon as it was pronounced.’
“13. And with reference to the defence, the learned Judgeobserves: ‘ Leaving aside the improbabilities of the case put forwardby the plaintiff, I cannot overlook .the very strong evidencecalled by the second defendant (t.e., myself) to show the truth of hisstatement that he was the joint pupil of Dompe and Mapitigama,and that he was duly ordained as such in 1887. His chief witness onthis point is no other than the present Anu Nayaka or Second HighPriest of the Malwatte Vihare. This priest, who is eighty-two yearsold, and has been a fully ordained priest for sixty years, and theAnu Nayaka of the Malwatte Vihare for the last twenty-eight years,swears that he was present and took part in the ordination of the
second defendant (i.e., myself) I think the testimony of this
High Priest, who, so far as we know, is a perfectly disinterestedperson, is entitled to quite as much respect as that of any of theHigh Priests called by .the plaintiff; it fully corroborates thegenuineness of the register, which, in my opinion, it is impossibleto throw aside-’
“ 14. As the Kelani Vihare is one of the most sacred and im-portant temples in Ceylon, this case between the plaintiff and myselfhas created a great deal of interest among the general public andamongst the Buddhists in particular, and the final decision isanxiously awai.ted, as it involves most momentous issues to thewhole Buddhist world..
“ 15. The respondents, to the best of my knowledge and belief,are well aware of the appeal taken by the plaintiff, and that thesame is still pending before Your Lordships’ Honourable Court.
“ 16. The aforesaid Chief High Priest Siddhartha Sumangala,the first respondent, notwithstanding the pendency of the saidappeal, has falsely and maliciously written in the Sinhalese newspaper‘ The Sarasavi Sandaresa,’ the leading Buddhist paper in the Island,edited by the second respondent, and published by the thirdrespondent in Colombo, in its issue dated March 3, 1908, an articledealing with the facts involved in this case, headed ‘ A Proclamation,’which with its translation, marked A and B, is herewith produced,and containing inter alia the following reference to Watereka AnuNayaka Priest and Alutgama Medhankara Priest, two of my chief17-
im.July 8,
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1908.witnesses, whose evidence the learned District Judge has accepted
JidyB.and acted on as stated above: ‘ The anu Nayaka Priest, Watareka
Batnajoti Sobhita, Alutgama Medhankara, who are members ofthis Board, and a priest of Asgiri Vihare, were witnesses for thedefence. Their evidence was against their own conscience andagainst .the Board’s decision, which they knew: They denied facts,upheld untruth, and gave evidence in such a manner as to show
owners as non-owners and non-owners as owners The Priest
Alutgama in his evidence confirmed the statement of the AnuNayaka Priest, and said that he wrote the register as stated above,and falsely made statements, so that the judgment of the Board of
Priests may not be confirmed The evidence of these two
priests falsified our evidence, and set at naught the decision of theBoard of Priests. Besides, the decision of the Board of Priests ismade a thing of no value in .the future. The harm done to thecomplainants by the evidence of these priests is very great. Theyare'made homeless.’ Then, owing to their having given this evidencein my favour, the first respondent, as Chief High Priest, in the 6ame’ Proclamation ’ proceeds to excommunicate the two witnessesWatareka Anu Nayaka and Alutgama Medhankara from the priest-hood, and to interdict them ‘ from performing priestly functions ’
‘ untilthey get purified in accordance with the laws of Vinaya. ’
Further, .the first respondent caused copies of the said ‘ Proclamation ’to be printed and published and circulated broadcast throughoutColombo, Kandy, Anuradhapura, and other Buddhist centres, andI produce a copy thereof with its translation, marked C and Drespectively
“ 17. The action of the respondents in writing, printing, andpublishing the aforesaid ‘ Proclamation,’ accusing my two witnessesof having given false evidence in my favour, and that of the firstrespondent in excommunicating them from performing priestlyfunctions because of their alleged false evidence, is calculated toexpose me and my said two witnesses to contempt, and to prejudicethe minds of the Judges against my cause and claim, and to preventthe said two priests and other priests from giving evidence contra-dictory to the evidence given by the Chief High Priest, the firstrespondent or in my favour, if any necessity were to arise for sodoing in the future, and thus to interfere with the course of justiceand the due administration of the law; and I verily believe thatthe action of the respondents as aforesaid was intended to exposeme and my witnesses to contempt, and to prejudice the minds ofthe Judges against my cause and claim, and to prevent the saidtwo priests or other priests from giving evidence contradictory ofthe evidence of the first respondent or in my favour if anynecessity were to arise for so doing in the future, and thereby toInterfere with the course of justice and the due administration ofthe law.
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*18. I am advised, and verily believe, that the action of therespondents as aforesaid amounts to a contempt of this HonourableCourt. ”
The first respondent in showing cause submitted the followingaffidavit: —
“ I, Tibbotuwawe Sri Siddhartha Sumangalabhi Dhana, MahaNayaka of Malwatte Vihare in Kandy, do solemnly, sincerely, andtruly declare and affirm as follows: —
“1. I am the High Priest of the Malwatte Vihare and the headof the Siamese Sect of the Buddhist Priests, and the BuddhistTemple at Kelaniya is within my ecclesiastical jurisdiction.
“2. On the death of the incumbent of the said Kelaniya Templedisputes arose as to the incumbency, the claimants being Kanda-oluwawe Sumangala Terunnanse and Mapitigama Buddha BakkhitaTerunnanse.
“ 8. The said dispute was referred to the adjudication of theGeneral Council of Buddhist Monks, of which I am the President,and the Council, after careful investigation, decided in favour ofKandaoluwawe Sumangala Terunnanse, and further held thatMapitigama Buddha Rakkhita Terunnanse had preferred a falseand an unjustifiable claim.
“ 4. The said Mapitigama Buddha Bakkhita Terunnanse havingrefused to abide by the decision of the Buddhist Council, the saidCouncil excommunicated the said Mapitigama Buddha BakkhitaTerunnanse, and suspended him from officiating as a member of thepriesthood.
“ 5. The said Kandaoluwawe Sumangala Terunnanse then suedin .the District Court of Colombo in ejectment of the claimant BuddhaBakkhita Terunnanse, and in the said action Watareka BatanajotiSobhita Terunnanse and Alutgama Medhankara Terunnanse gaveevidence, which the Council knew and honestly believed to be false,and by doing so created a great scandal in the Buddhist priesthoodand laity, and made themselves unworthy of remaining in theOrder.
“6. I, then, as the head of the Order, felt it to be my reluctantduty to proclaim the said two priests, Watareka Batanajoti SobhitaTerunnanse and Alutgama Medhankara Terunnanse, as beingunworthy of officiating as priests, and I was obliged, by reason ofthe opinion of the Council and of many representations made to meby the clergy under my charge, to excommunicate the said twopriests.
“7. In so doing the only motive of my action was that of theperformance of my duty in maintaining the purity of the BuddhistChurch and of safeguarding its interests. I had not the remotestintention to prejudice the minds of the Judges of Your HonourableCourt in the cause now pending before Your Lordships, and if my
ISOS.July 6.
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1908.action which my ecclesiastical duties impelled me to adopt can be
July 6.construed into" a contempt of Your Lordship’s Honourable Court in
any the slightest degree, I beg to tender to Your Lordshipsmy humble apologies.”
A. St. V. Jayewardene, for the applicant.
C. M. Fernando (with him Batuwantudawe and Garvin), for therespondents, showed cause.
July 6, 1908. Wood Renton J.—
In this case application is made .to the Supreme Court, in theexercise of its inherent jurisdiction, to consider the question whetherthe issue of a certain proclamation, to which I will refer moreparticularly in a few moments, by the first respondent, TibbotuwaweSiddhartha Sumangala of Malwatte Vihare in Kandy, and itsreproduction in the ” Sarasavi Sandaresa ” by the second respondent,who is alleged to be the editor, and the third respondent who isadmittedly the printer and publisher, of that paper, should be takeir-to constitute, under the circumstances, a contempt of Court. Inregard to the facts there is practically no contest, and it will sufficeto state their effect in a few sentences. It would appear that therehas been a dispute between the parties, to which the applicant is one,as to the incumbency of the Kelani Temple. It came, in the firstinstance, before an ecclesiastical tribunal, constituted in accordancewith the Buddhist law, whose decision was adverse to the presentapplicant. He declined, however, to accept the verdict of thattribunal, and the questions in issue have been brought before theDistrict Court, have been adjudicated upon by that Court, andare now awaiting the consideration of the Supreme Court in appeal.It is admitted that, in that state of matters, the Maha Nay akaissued a proclamation, in which he not only interdicted two priests,who had given evidence in the proceedings in the Court below, fromperforming priestly functions till they had made their defence in thepresence of an ecclesiastical assembly and had purified themselvesin accordance with the Buddhist law, but at the same time charac-terized the evidence which they had given in the Court below as‘‘suppressive of truth and upholding falsehood. ” The questionthat we have to consider is, whether conduct of that description onthe part of the author of the proclamation and of those who publishedit, does or does not constitute a contempt of Court. It appears tome that, to this question, there can be but one answer; and it is fairto the respondents to say that, through the mouth of their counsel,Mr. C. M. Fernando, while they properly raised the question as towhether or not a contempt of Court bad been committed, theymainly rested their defence on the grounds stated in the affidavits
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of the first and third defendants that they had intended to commitno contempt of Court, and that there were, in any event, circum-stances which constituted a great mitigation of any offence thatcould be laid to their charge. I am quite prepared, speaking formyself, to accept the good faith of the allegations contained in theseaffidavits, and I should propose to give effect to this view of the casein the judgment we are to pronounce. At the same time I haveno hesitation in holding that a contempt of Court, which, undersome circumstances, might (have required serious treatment, hasbeen committed in the present case. I can well conceive, if I mayput the illustration that I suggested to Mr. Fernando in the argument,that it might be a proper course for a Maha Nayaka, or for thatmatter for any ecclesiastical superior, to adopt in such a case asthis, if he were to say to the incumbent against whom the judgmentof the ecclesiastical tribunal had passed, and who had appealedagainst that judgment, or to any of his witnesses who were priests:“It is inexpedient that, under the present circumstances, youshould exercise sacerdotal functions pending the appeal, and if youdo not yourself see the decency of this suggestion on my part, I amprepared to take the responsibility of inhibiting you, while I expressno opinion on the merits of your case, and while I am free to admitthat my own adverse judgment against you or view of your evidencemay ultimately be set aside. ’’ But it seems to me to be a quitedifferent thing if the ecclesiastical superior takes upon himself,pending an appeal to a higher tribunal, not . only to say to a priest," You shall not' be reinstated in your functions till you have under-gone some process of purification, ” but to go further, and to charac-terize the evidence which he has given as being false. I have nohesitation in holding that this is a clear case of contempt of Court.It is extremely difficult to bring home to the minds of some people,and yet it is of vital moment that every one should know, thatthe law of contempt of Court does not exist for the glorification ofthe Bench. It exists—and exists solely—for the protection of thepublic. It is of the highest importance that, while cases arestill undecided, nothing should be said which could influence thetestimony of witnesses, or which could create any adverse and unjustimpression upon the mind of the Court. I need scarcely pointout that this latter consideration applies whether the cases are tobe tried by juries or by Judges. For every one who has exercisedjudicial office knows that it is extremely difficult to keep the mindclear from misconception and from prejudice, if by some mischancethe Judge has heard private or public gossip in regard to, or irre-sponsible comment upon, the case he has to decide". I feel sure thatthese considerations will appeal to all right thinking men in thewhole community; and it is in the hope that they may reach allsections of the community that I have dealt with the question hereat some length.
1908.
July 6.
WoodRenton J,
1908.July 0.
WoodRenton J.
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Iu regard to the present case, it appears to me that in view of theaffidavits of . the first and third respondents, and pf the apologies inthese affidavits, the ends of justice will be met if the present rule isdischarged, with costs, to be paid by those respondents to the appli-cant. As regards the second respondent, I think that his affidavitshows that he is in no way responsible for the publication complainedof. His name does not appear on the pages of the “ SarasaviSandaresa, ” and I do not think that the mere fact that his namedoes appear in the almanac which Mr. St. Y. Jayewardene has shownus should be allowed to over-ride the terms of his affidavit, to theextent of his being called upon to pay any share of the applicant’scosts of the present motion. I should propose, therefore, as regardsthe second respondent, simply to discharge the rule, making noorder as to costs.
Grenier A.J.—
I entirely agree with what has fallen from my brother. I havenothing to add.
Rule discharged, but respondents to pay the costs of the application.
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