057-NLR-NLR-V-53-SAMARASINGHE-Appellant-and-PANNASARA-THERO-et-al.-Respondents.pdf
Samarasinghe v. Pannasara Thero
2711
1951Present: Dias S.P.J. and Gunasekara J.SAMABASINGHE, Appellant, and PANNASABA THEBOet al., Bespondents
S. C. 70—D. C. Colombo, 4,476/L
Pleadings—Amendment—Scope of.
The two plaintiffs, who were Bujldhist monks, sought to vindicate title to alaDd ill (heir personal capacity on the footing that it was their private pudgalikaproperty. During the trial, however, it appeared that the land in questionwas the Sanghika properly of a Vihare. The 2nd plaintiff, thereupon, claimedto vindicate title to the land, not in his personal capacity as owner, but onbehalf of the temple.
Held, that it would be improper to permit the whole nature and scope of theaction to be altered.
PPEAT, from a judgment of the District Court, Colombo.
H. V. Perera, K.C., with C. V. Kanawake, for the defendant appellant.
E. B. Wikramanayake, K.C., with M. D. H. Jayawardene andJ. W. Subasinghe, for the plaintiffs respondents.
Cur. tidv. trait.
23 – N. L. R. Vol. – Liii
272
DIAS 8.P.J—Samarasinghe t>. Pannasara Thero
August 80, 1951. Dias S.P.J.—
The two plaintiffs, who are Buddhist monks, seek to vindicate titleto a land called Elamoderawatta. The action is brought in their personalcapacity on the footing that the land in question is their private pudgalikaproperty. They seek to eject the defendant who is alleged to be inunlawful possession of the land.
During the trial, however, it appeared that the land in question is thesanghika property of the Galwana Vihare, and that the 2nd plaintiff,who alleges that he is the adhikari bikshu of that Temple, is claiming tovindicate title to that land, not in his personal capacity as owner, buton behalf of the Temple.
Learned counsel for the plaintiffs had to concede that in these circum-stances the 1st plaintiff has no status to join in this action at all. He,however, argued that the documents Pll and P12 prove that GalwanaVihare has been exempted from the provisions of s. 4 (1) of the BuddhistTemporalities Ordinance (Chapter 222), and that, therefore,' the2nd plaintiff as the viharadhipati of the Temple is vested with thetemporalities, and has status to maintain this action.
The answer to this contention is that this is not an action institutedin terms of s. 18 of the Ordinance by the “ Controlling Viharadhipati "who is suing under the name and style of “ The Trustee ” of the Templeto recover property vested in him in that capacity. It is only such aperson who can vindicate title to a land which belongs or is appurtenantto a Buddhist Temple. This action as framed is one by two monks suingin their personal capacity to vindicate title to a land which the plaintasserts belong to them. That was the case which the defendant hadto meet.
It was held in Dambadeniya v. Vidane Henaya 1 that under the provisionsof the Civil Procedure Code such an amendment of pleadings as wouldcompletely alter the nature and scope of an action should not be allowed.A fortiori, therefore, in a case like the present where no application toamend the pleadings was at any stage made, it would be improper toalter the whole nature and scope of the action either during the trial orwhen the case has come up in appeal. To do so in this case would mean:(a) that, the 1st plaintiff would have to be dropped from the case ; (b) the2nd plaintiff who sued as owner would change his personality and emergeas a new persona, viz., the trustee of the Galwana Vihare ; (c) the wholenature and scope of the action would be changed ; and (d) the defendantwould be called upon to meet a new case to which he has not pleaded.He may have new issues to raise. In fact this is an impossible situation.
therefore, set aside the judgment and decree appealed against anddismiss the plaintiffs’ action with costs both here and below. This orderwill not preclude the proper person from instituting a fresh action tovindicate title to this land which is alleged to be part of the temporalitiesof the Galwana Vihare.
Gctnasekaba J.—I agree.
Appeal allowed.
> (1921) 3 C. L. Rec. 87.