Present : Bertram C.J. and Schneider A.J.

RATWATTE v. RATNAIKE.

44-D. C. (Inty.) Kandy, 27,189.

Claim in reconvention-Allegation by plaintiff that defendant had no right to dis7nis8 him-Prayer that plaintiff might be declared Basnayake Nilame-Answer of defendant that dismissal was legal- Claim in the alternative that the plaintiff should be dismissed by Court.

The plaintiff claimed to be the Basnayake Nilame of the Kataragam Dewale. He denied the right of the defendant to dismiss him from that office, and prayed that, he might be declared the Basnayake Nilame of the De wale, and also asked for an injunction and for damages.

The defendant in his answer maintained that the dismissal was legal, and prayed in the alternative that, if there was any defect in the dismissal, the Court itself should remove the plaintiff from his office.

Held, that it was competent for the defendant to claim in reconvention that the plaintiff should be dismissed from his office.

THE facts appear from the judgment.

A. St. V. Jayawardene, for the appellant.

H. J. C. Pereira, for the respondent.

August 3, 1920. BERTRAM C.J.-

This is an appeal from an order of the District Judge of the Kandy District Court directing in the course of action that a particular issue should be added to those already settled. The action was brought by the plaintiff, who claimed to be the Basnayake Nilame of the Kataragam Dewale at Kandy. He complained that the defendant, purporting to act as President and Secretary off the Kandy District Committee, had summoned the plaintiff before him by a notice, which was so framed and served as to give him no opportunity of appearing, and he thereupon purported to dismiss the plaintiff from his office of Basnayake Nilame.' The plaintiff denied the right of the defendant to dismiss him. He further complained that the defendant inserted a paragraph in a newspaper announcing that he had been dismissed, thus causing a loss of prestige and reputation of the plaintiff, and he prayed that he might be declared the Basnayake Nilame of the Dewale. He also asked for an injunction and for damages.

After the answer was delivered a further cause of action was alleged, and a paragraph was added, alleging that a further paragraph had been published in the public press which was of a defamatory nature, with regard to the matters to which I have previously referred. In his answer the defendant justified his dismissal of the plaintiff, maintained that the dismissal was perfectly legal, prayed for the dismissal of the action and for the confirmation of the plaintiff's dismissal from his office as Basnayake Nilame, and prayed in the alternative that, if there was any defect in the dismissal, the Court itself should remove the plaintiff from his office. The answer also in reconvention prayed for damages.

The point which we have to decide is whether in answer to such a claim it is competent for the defendant to claim in reconvention that the plaintiff should be dismissed from his office. That claim in reconvention is based upon section 39 of the Buddhist Temporalities Ordinance, No. 8 of 1905, under which any person interested in the temple or in the performance of the worship or of the service thereof may sue any trustee in respect of any misfeasance, breach of trust, or neglect of duty, and may claim the removal of the trustee from his office.

It is urged by Mr. Jayawardene that this claim in reconvention cannot properly be tried in connection with the present action. He cites as his authority for that proposition the case of Silva v. Perera,1[(1914) 17 N. L. R. 206.] and in particular the passage from Kotze's Van Leeuwen, which is quoted in the course of the judgment in that case. I do not think that passage in Van Leeuwen ought to be too narrowly construed. The principle which those words lay down is, no doubt, unexceptionable, and is accepted as part of the law of this