T.A.Dingiri Appuhamy V. Talakolawewe Pangananda Thero

1965                 Present  : Abeyesundere, J., and Sirimane, J.

T. A. DINGIRI APPUHAMY and 5 others, Appellants, and
TALAKOLAWEWE PANGANANDA THERO
and another, Respondents

S. C. 350 of 1962-D. G. Kurunegala, 1184/Spl.

Buddhist ecclesiastical law-Action against bhikku on ground of parajika-Misjoinder of defendants and causes of action-Dismissal of action on that ground- Validity of such order-Civil Procedure Code, s. 17.

There is no provision in the Civil Procedure Code or any other law requiring an action to be dismissed where there is a misjoinder of causes of action. It is, therefore, improper for the Court to dismiss an action on the ground of misjoinder of defendants and causes of action without giving an opportunity to the plaintiff to amend his plaint.

The plaintiffs, who were dayakayas of a Vihare, sued for a declaration that the 1st defendant, who was a bhikku resident in the temple, was guilty of " parajika " and had, therefore, forfeited his right to be a bhikku. They also prayed for an order directing the 2nd defendant, who had jurisdiction over the temple in his capacity as Mahanayake Thero, to take the necessary measures if the 1st defendant was declared to have forfeited his right to be a member of the Sangha.

Held, that there Was a misjoinder of defendants and causes of action. Inas­much en, under section 17 of the Civil Procedure Code, no action should be defeated by reason of misjoinder of parties, the plaintiffs should be given an opportunity to amend their plaint so that the action should proceed against the 1st defendant only.
 
APPEAL from a judgment of the District Court, Kurunegala.

H. V. Perera, Q.G., with Vernon Jonklaas, for the Plaintiffs-Appellants.

E. B. Wikramanayake, Q.G., with P. N. Wikramanayake, for the 1st Defendant-Respondent.

George Candappa, for the substituted 2nd Defendant-Respondent.

January 22,1965.   Abeyesundere, J.-

The plaintiffs are dayakayas of the Sulugal Vihare in the Kurunegala District. The 1st defendant is a bhikku resident in and maintained out of the temporalities of the said Sulugal Vihare. The substituted 2nd defendant is the Mahanayake Thero of the Malwatte Vihare in Kandy. The original 2nd defendant was the predecessor in office of the substituted 2nd defendant.

The plaintiffs alleged that the 1st defendant was convicted of the offence of murder of a bhikku called Seelananda, that he was sentenced to death, that such sentence was commuted to one of imprisonment, that he was imprisoned for about 10 years and that thereafter he was released from prison, and that he was guilty of " parajika " as he had

committed the aforesaid offence of murder. The plaintiffs also alleged that the said Sulugal Vihare was subject to the jurisdiction of the Maha­nayake Thero of the Malwatte Vihare, that they made a complaint to the said Mahanayake Thero in regard to the offence committed by the 1st defendant, and that the said Mahanayake Thero had failed and neglected to hold an inquiry into such complaint and make an order thereon.

In the answer filed by the 1st defendant he admitted his conviction of the aforesaid offence of murder and the sentence passed on him. The original 2nd defendant stated in the answer filed by him that " he had considered the matter referred to in the plaint against the 1st defendant and had decided that the 1st defendant had not committed an offence, which would cause his expulsion from the priesthood as contemplated in the Buddhist ecclesiastical law ".

The plaintiffs prayed for a declaration that the 1st defendant has forfeited his right to be or to officiate as a bhikku and to be resident in and maintained out of the temporalities of the said Sulugal Vihare. They also prayed for an order directing the 2nd defendant to take such measures as may be necessary if the 1st defendant is declared to have forfeited his right to be a member of

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