IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an application for Leave to Appeal in terms of Section 5C (1) of the High Court of the Provinces (Special Provisions) Act No. 54 of 2006 SC/HCCA/LA/378/17 Ransegoda Wimalasiri Thero, SC/HCCA/MA Appeal No. 36/2014(F) of Morawaka Sriwijaya Pirivena DC Matara Case No. L/6664 known as Ganegoda Rajamahaviharaya, Morawaka Plaintiff Vs.

Dellawa Sisiela Thero (Deceased), of Ganegoda Rajamahaviharaya, Morawaka Defendent Dellawa Suneetha Thero, of Ganegoda Rajamahaviharaya, Morawaka Substituted Defendant AND BETWEEN Dellawa Suneetha Thero, of Ganegoda Rajamahaviharaya, Morawaka Substituted-Defendant-

Appellant Vs.

Ransegoda Wimalasiri Thero, of Morawaka Sriwijaya Pirivena known as Ganegoda Rajamahaviharaya, Morawaka Plaintiff-Respondent AND NOW BETWEEN Ransegoda Wimalasiri Thero (Deceased), of Morawaka Sriwijaya Pirivena known as Ganegoda Rajamahaviharaya, Morawaka Plaintiff-Respondent-Petitioner Vs.

Dellawa Suneetha Thero, of Ganegoda Rajamahaviharaya, Morawaka Substituted Defendant- Appellant-

Respondent An application for substitution on behalf of the deceased Plaintiff-Respondent-

Petitioner Thero Edandukitha Gnanasiri Thero, Sri Wijaya Piriven Wiharaya, Morawaka Petitioner Vs.

Dellawa Suneetha Thero, of Ganegoda Rajamahaviharaya, Morawaka Substituted Defendant-Appellant-

Respondent- Respondents Before: Jayantha Jayasuriya, PC, CJ.

L.T.B Dehideniya, J.

Murdu N.B Fernando, PC, J.

Counsels: Ranjan Suwandarthna, PC for the Plaintiff-Respondent-Petitioner Lakshman Perera, PC with Upendra Walgampaya for Defendant-Appellant–

Respondent Argued on: 05.12.2019 Decided on:08.03.2022 L.T.B. Dehideniya, J.

Plaintiff-Respondent-Petitioner (hereinafter sometime referred to as the Plaintiff) instituted this action in the District Court seeking for a declaration, that he is the Viharadhipathi of Ganegoda Rajamahaviharaya and for an order to evict the Defendant. The District Court delivered the Judgement in favour of the Plaintiff. While the case was pending before the District Court, the Defendant Thero passed away and the present substituted Defendant-Appellants-Respondent’s (hereinafter sometime referred to as the Respondent) name was entered in the room of the said deceased Defendant.

The Respondent appealed to the High Court of Civil Appeal and the said court set aside the judgement of the District Court. The Plaintiff filed the present leave to appeal application, challenging the said decision.

The law related to the substitution of a deceased Plaintiff was amended by the Civil Procedure Code Amendment Law No. 20 of 1977 when the Administration of Justice Law was repealed and the Civil Procedure Code was re-enacted. By the said law, only a next of kin of the deceased person was permitted to be substituted. This law has been changed several times and by the Civil Procedure Code (Amendment) Act No. 08 of 2017, the requirement to be a next of kin was removed. The scope of the Section was widened and the legal representative was permitted to be substituted.

The new Section reads as follows;

Section 398 “In case of the death of a sole plaintiff or sole surviving plaintiff, the legal representative of the deceased may, where the right to sue survives, apply to the court to have his name substituted on the record in place of the deceased plaintiff and the court shall thereupon cause an entry to that effect to be made on the record and proceed with the action.”

The Section 398 applies only for a substitution in original Courts. For a substitution in the Appellate Court, Section 760(A) of the Civil Procedure Code applies. Section 398 has no relevance in such a situation. The Section 760(A) was introduced to Civil Procedure Code by Civil Procedure Code (Amendment) Act No. 79 of 1988.

The Section reads as follows;

Section 760(A)

“Where at any time after the lodging of an appeal in any civil action, proceeding or matter, the record becomes defective by reason of the death or change of st