Dhammavisuddhi Thero Et Al., . V. Dhammadassi Thero

1955 Present : Basnayake, A.C.J., and Pulle, J.

DHAMMAVISUDDHI THERO et al., Appellants, and
DHAMMADASSI THERO, Respondent

S. C. 348-D. C. Colombo, 5,517/L

Buddhist Ecclesiastical Law-Dedication of temple-Viharadhipati-Appointment need not be in writing-Bhikhhu-Residence in temple-Right to claim incumbency thereby.

When a Buddhist temple is built for the first time by laymen and offered to the Sangha, there is no requirement of law or custom that the viharadhipati should be appointed by a written document.

Where a bhikkhu who is a viharadhipati of more than one temple places bhikkhus in whom he has confidence, not necessarily his pupils, in charge of the different temples of which he is viharadhipati, while adopting for his usual residence only one of them, the performance of their duties by the bhikkhus so appointed does not have the effect of making them viharadhipatis of the respective temples. There being no particular duties, spiritual or temporal, which a viharadhipati need perform for the purpose of keeping alive his rights, such rights cannot be said to be lost because another bhikkhu who is actually residing in the temple manages its affairs and prevents the temple from falling into decay.

A bhikkhu residing at a Sanghika temple who, by virtue of his residence therein, asserts in a Court of Law the right of the temple to its property does not. thereby acquire a right to be its viharadhipati.

APPEAL from a judgment of the District Court, Colombo.

H. V. Perera, Q.C., with H. A. Kottegoda, for Defendants-Appellants.

H. W. Jayewardene, Q.C., with Daya Perera, for Plaintiff-Respondent.

Cur. adv. vult.

October 28, 1955. BASNAYAKE, A.C.J.-

This appeal has had an unusual course. It was first argued before a Bench consisting of my brothers Gratiaen and Fernando. At that hearing on 12th and 13th July, 1954, the plaintiff-respondent, Kalawane Dhammadassi Thero (hereinafter referred to as the respondent), was unrepresented. After the arguments of Counsel for the defendants-appellants, Mawella Dhammavisuddhi Thero and Tissamaharama Gunaruchi (hereinafter referred to as the first appellant and the second appellant respectively and collectively as the appellants), the Court-made order allowing the appeal and dismissing the respondent's action with costs in both Courts ; but reserving the reasons to be delivered on a later date. Thereafter on 19th July, 1954, the reasons were delivered 1[56 N. L. R. 284.].

On 2nd June, 1955, an application for Restitutio in Integrum made by the respondent to this Court was entertained by the very Judges that heard the appeal.

It would appear that the respondent had as his Proctors a firm carrying on business under the name of " Perera and Senaratne " to whom he gave a joint proxy appointing them to represent him at the trial and also in the appeal. In October and November, 1952, at Mr. Senaratne's request, he paid sums aggregating to Rs. 735 to Mr. Senaratne as fees for senior and junior Counsel. The respondent was later informed by Mr. Senaratne that the advocates concerned had been duly briefed, and he assumed that he would be represented at the hearing.

After the appeal had been disposed of, the respondent became aware that Counsel had not appeared for him at the argument as their fees had not been paid by Mr. Senaratne. He also discovered that Mr. Senaratne had, in terms of an order of the Supreme Court dated 23rd October 1953, been suspended from the practice of his profession for a period of three years on the ground of misconduct.

The Court was satisfied that, in the circumstances, the proper course to take was to order are-hearing under section 771 of the Civil Procedure Code and accordingly on 7th June 1955 vacated the judgment of the Court dated 19th July 1954, and directed that the appeal be re-heard before another Bench. It was also ordered that the costs of the application

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