S8 o our] Z,l tJ) U Orptt orn:Srn\{' 5 T^o JS tb lpo,, J 2l q&.rroa:c8zo6<EocJ q*ocs: 8.dO.E 50/2013 6 g"asn grslonoJ$or es@le5O:Q eia6e5qd q6csrOol6od<6o.JQ o t grD * 2s epr6.6qrb: g.5o<dor6 oedz::arcszs:, @z)r 110 81, o:6hg o16, ororOorr'3oq6os, oddroq6os. f esr06Ezslr6-O(,)f,6J6)62or6-Edcs:Ozo r qpre'E,*l $|oro cso q8zs6ocs q.2o6: 6tt oq6o gQddg"o: q6, QosOOa 6eo0 Ee EOxs, O6@ere 9:Oa:, Oo:pO6. (Og)e 6J6)62$16-oee 6Ja3 025)rd- Oae,oJot6m6tl arQ q,zoo: gE 86/2012 @o:6Od @eor g&soo:czoQod EBeq: arr66€zs:6 oo:6a5odzs:r6 q8osrors: oopoonj 66eq @do: oo6da6zsQod Aaeq: Osr O6Jz:: d 2ill 6 o e a-Jas O r: fi O a erJofizs: di o O E1 o O aJ dd3 ce OO. -.r &. ,' ,<*i.". a -ri,, 25 l'|Ayro cOO6S 2O1B/DZ/.16 E8&;lsodOdsl&t6d. -8- p.do_d .s.{.g.,yd. p 9.r6.Q.9 l s d,ed.Q p 9..Q : e..gl9 S.e ssoo os qa. - .. .. . -o- p. A Q (. -o-p.l . . . . ..?AB/.0:197. ..........?F, qdo:8al6p oezoc dea ego ao Ealgo .. .e e.+s.sr.q n a..e.9.tr 9 e. st 9S:..+.4..4.4.C.e.9 r.q.e 4. .t 4 r 9 9. ry 9 I E6er,!d0 qa qA eoSol &r coS6J ... - ...afe 6.... . - - -....... 6dg cPa eo.l,/02/j6 Qa 63rlgoa g"@8 8Oe:orsl o0 asoro qpdr eftr:.) otb -rrcg -.......0S..eqr.d.9. 9.'.i p.9.'.: C5 o8q t7 dn3 onSg'3 zodrdrdol:s: @r6Q ff filfll - Im (2olyrl) .$ 1--:r j-ocJ Ce6 oqoriroeo5?a "9 IN THE COT]RT OF' OF THE D TIC In the matter of an Appeal in terms of Article 154 P and Article 138 of the Constitution of the Democratic Socialist Republic of Sri Lanka read with High Court of the Provinces (Special Provisions) Act No. 19 of 199.0 Rasika Sudantha Punchibandara Senanayake. No. 110 Cl, Galwala road, Godagandeniya, Peradeniya P laintiff-Respondent-Appellant * 25 * EAcb6 ozrJ c) strD qaQo, ,48113,49113,50113 Kandy, Pradeep Nilanga Dela, Diyawadana Nilame Nila Niwasaya. Dharmapala Mawatha, Kandy. 87ltz,gglt2, gglt2, Respondent- Petitioner- Respondent Before: P. Padman Surasena, J (P-CA) K.K.Wickremasinghe, J. Counsel : AAL H. Withanachchi for the Respondent-Petitioner-Respondent AAL Maneesha S eneviratne for the P laintiff-Re spondent-Appellant Argued on : 2210112018 Written submission of the Appellant submitted on: 30/l ll2OI7 Written submission of the Respondent submitted onz 05/12/17 Decided on : 1610212018 VS t )rU ,:5 'N-X I 7 Juds ment * t,Al, M3 * I 2,5 When this matter was taken up for argument all parties agreed to abide by the same order of one case (Case Nos: CA (PHC) APN 2llt3,49lt3,49lt3,5}lt3). Further all parties agreed to file one written submission with regard to all matters All four Revision Applications were heard together in the High Court of Kandy and the parties had agreed to abide by the Order delivered in pUC - Kandy (Rev) Application No.86 12012. The Plaintiff -Respondent-Appellant (hereafter referred to as the AppellanQ instituted proceedings under section 136(1) (A) in Magistrat.. .or.t of fundy, against the Respondent-Petitioner-Respondent (hereafter referred to as the Respondent) for committing an offence under section 36(3) of The Buddhist Temporalities Ordinance (hereafter referred to as the ordinance), namely failure to tender half yearly accounts of the Temple of Tooth Relic which amounts to a violation of Section 36(l) (2)of the Act. The Respondent-Petitioner-Respondent above named made the said revision application No. 8612012 seeking inter alia the following reliefs; 1) to dismiss the plaint "in limine" filed in the Magistrate Court of Kandy in Case No.52409. 2) to set aside /revoke the order dated 25.06.2012 issuing surlmons on the respondent in the said case No.52409. 3) to make an interim order staying all proceedings in the said case No.52409 until the final determination of the revision application. It is submitted by the appellant that a letter was addressed to the Commissioner of Buddhist Affairs, complaining of various misdeeds of the Respondent and requesting him to take appropriate remedial action. The response to the same by the Commissioner indicated that the Respondent has admitted commission of the offence mentioned above. 2 / time to tender the accounts by its order dated l3l03ll2. Therefor it was inappropriate for the Magistrate to issue summons. Further he brought to the notice of the court that under section 39 of the ordinance the prosecution of a trustee of a Temple is the sole prerogative of the Commissioner. By the order of the learned High Court judge dated 7l5l13, it was held that pertaining to failure to tender accounts as per section 39 the sole authority for prosecution was the Commissioner and set aside the order of the learned Magistrate for the issuance of summons. Furthermore costs of Rs. 125,0001: each, totaling up to Rs 500,000/: were ordered. The learned counsel for the Appellant invited this court to consider the alternative remedy available where Revisionary Jurisdiction can be invoked under special circumstances. Furtherrnore special circumstances should not be merely questions of law but circumstances that shock the conscience of the court and also that a remedy of a revision is available to a person "aggrieved". The issuance of summons does not make a person "aggrieved". Counsel for the Respondent submiued that in terms of Section 39 of the act, only the Commissioner has the authority to institute action in respect of defaults with regard to the accounts but the Complaint in his personal capacity had lodged complaints in the Magistrates court of Kandy which resulted in the commencement of Cases Nos. 52409,52410,52411and No. 52412. Further that the fund of the Sri Dalada Maligawa would be spent after obtaining the approval of the said Commissioner and the accounts would be audited by a Chartered Accountant prior to the same being sent to the Commissioner resulting in a delay which is explained by the Maha Nayake Theros of two Chapters. Also r the Respondent on26lOlll2hadmade Application bearing No. DSP 00368/12 to the District Court seeking relief in terms of Section 33(a) and 33(b) of the act and : an extension of time till 3llO3l12 to furnish the statements of accounts for the period January 2009 to December 2011. 2s 3 * Y M3 \*i dl The learned District judge having considered the submissions made on behalf of the said Commissioner of Buddhist Affairs, granted time till 3ll13l21l2 totender the said statements (order dated l3l03l2}l2). Under the above mentioned circumstances the alleged charges in Cases No. 52409, 52410 and No. 52411 could not be treated as offences contemplated by Section36 of the act and the attempts made by the Complaints to intervene in Case No. DSp 368 and Case No. DSP 373 hadbeen rejected by the District Court. It is submitted by the Respondent that the Complainant having got only 5 votes at the Election of the Diyawadana Nilame in which the Responaint was elected, was prompted by malice to make the said baseless private complaints. All the alleged charges related to the failure to furnish the iaid Statements which lapses had been cured by the Respondent within the time allowed by the District Court under Section 33. The said Commissioner had called an inquiry by a Deputy Commissioner in Kandy in terms of Section l5(1) of the Act at which the Respondent had been exonerated of 12 charges leveled against him. However in respect of 13th charge the Respondent had admitted the default in sending the statement of aCcounts for period of six months and the Commissioner had indicated that steps would be taken to obtain such statements in due time. It is pertinent to note that the Commissioner after inquiry had decided not to charge or to take action under Section 39 of the Act to prosecute, the Respondent in court and granted an opportunity to tender the accounts in time. The Maha Nayake Theros had specifically indicated that a delay in sending the accounts was inevitable for practical difficutties such as auditing and the approval by all three persons involved and that the supervisory powers in this regard can only be exercised by the commissioner and not by any other. This court is of the view that the Complaint dated 2010612011 had been inquired into the Commissioner who found the Respondent not guilty of the allegedacts of misconduct. The only ground of delaying the accounts had been sufficiently explained by the Maha Nayake and also, the Commissioner's decision not to prosecute the Respondent was correct. Section 36(1) and (2a) in the said Part IV of the Ordinance mandates that the should make up a statement of accounts at the crose of every six months and December in each year and submit the same * 4 25 H M * after certifuing .*.i i=J --il .:: : aF "ffue and correct" within 30 days of the end of each half year to the public Trustee (presently to the Commissioner - General of Buddhist Aifairs). Such accounts should be countersigned by the Mahanayake Theras of Malwatte Vihare and Asgiriya Vihare. The provisions of Section 39 contemplate an inquiry by the Commissioner in the case of any income not being duly accounted foi ana to cause to be prosecuted *y delinquent trustee. This court is of the view that the High Court was justified in taking the view that only the Commissioner is empowered to hold an inquiry as a condition precedent to satisff himself that any trustee is reasonably be suspected of having committed a criminal breach of trust prior to cause such trustee to be prosecuted. It is also noted by this case that by the High Court is that the Respondent had already invoked the provisions of Section 33 of the Act in District Court of Kandy Case No. DSP3 68112 and No. SPLl373l12 seeking relief and the District Court had granted such relief. Therefore, the said Section 33, authorizes the court to give relief on an application by the trustee against any accidental mistake or omission or any informality, extent the time fixed for any action or proceeding and to order any person to discharge any duty within a time fixed in the Order. These reliefs could be granted by the Court in respect of any matter, any action or any duty under the Ordinance as the justice of the case may require. According to the Order dated 2610712012 in Case No. SpL 373112, statecounsel appearing for Commissioner - General had informed the Court that the accounts for the period 2005-2008 had been already submitted although not within the time prescribed by Section 36 and the Learned Additional Districi Judge had concluded that such accounts being accepted by the Commissioner, relief should be granted for the accident mistake or omission of the Respondent. Therefore in these circumstances, the Complainant could not have made and the Magistrate's Court did not have jurisdiction to entertain the said impugned private plaints as in above mentioned cases in the Magistrate's court 25 5 M )t a3 above we are of the view that this court has no basis to interfere with the order of the learned High Court judge. Therefore, Appeals of a[ connected cases are hereby dismissed. ry JUDGE OF COURT OFAPPEAL P. Padman Surasena, J. (p/CA) t PRESIDENT OF THE COURT OF APPEAL , Agree. I, r11 * 2s M 6 4 of,' (PHC) 3, 4gll3, 4gll3, 5a/B Kandy, 2, g7ll2,ggl72, gglL2, SRI 1; Rasika Sudantha Punchibandara Senanayake. No. I 10 Cl, Galwala road, Godagandeniya, Peradeniya Plaintiff-Re spondent-Appellant Pradeep Nilanga Del4 Diyawadana Nilame Nila Niwasaya. Dharmapala Mawatha, Kandy. In the matter of an Appeal in terms of Article 154 P and Arricle l3g of the Constitution of the Democratic Socialist Republic of Sri Lanka read with High Court 9-f ft. Provinces (Special provisions) Act No. 19 of 199.0 @ 2 5 f )f VS Respondent- Petitioner- Respondent Before: P. Padman Surasena, J (p-CA) K.K.Wickremasinghs, J. Counsel : AAL H. Withanachchi for the Respondent-Petitioner-Respondent AAL Maneesha Seneviratne for the Plaintifl-Respondent-Appellant Argued on : 22101/2018 written submission of the Appellant submitted on: 30/1 ll2ol7 written submission of the Respondent submitted on: o5lr2ll| Decided on z 1610212018 11 7 1 -,1 /u .Iudgment. K.K.Wickremasinshe When this matter was taken up for argument all parties agreed to abide by the same order of one case (case Nos: cA (pHC) ApN zlll3, qgl3,4gll3,5oll;), Further all parties agreed to file one written submission with regard to all matters. i All four Revision Applications were heard together in the High Court of Kandy : and the parties hrrd agreed to abide by the Order delivered in FUC - Kandy (Rev) Application No.86 12012. The Plaintiff -Respondent-Appellant (hereafter refened to as the Appellant) instituted proceedings under section 136(1 against the Respondent-Petitioner-Respon Respondent) for committing an offence un Temporalities Ordinance (hereafter referre tender half yearly accounts of the Temple violation of Section 36(1) (2)of the Act. ' "' The Respondent-Petitioner-Respondent above named made the said revision ( application No. 8612012 seeking inter alia the following reliefs; 1) to dismiss the plaint "in limine" filed in the Magistrate Court of Kandy in r Case No.52409. 2) to set aside /revoke the order dated 25.06.2012 issuing surrmons on the : respondent in the said case No.52409. 3) to make an interim order staying all proceedings in the said case No.52409 - F until the final determination of the revision apptication. d It is submitted by the appellant that a letter was addressed to the Commissioner of .C ir tl tl a. p Buddhist Affairs, complaining of various misdeeds of the Respondent and fl requesting him to take appropriate remedial action. The response to the same by the Commissioner indicated that the Res pondent has admitted commission of the offence mentioned above. 25 * frts 2 0 ,dy, st rilure to )a dy irt 52409 )n the F t: 1l Counsel for the appellant submitted that having considered the plaint under Section 139(1)(a) the learned Magistrate issued r,r--o.r. and the Respondent, without making an appearance in the Magistrate court, invoked the jurisdiction of the Provincial High Court by way of a Revision. The Respondent's main grievances before the High Court was that the District court of Kandy had granted him further time to tender the accounts by its order dated l3l\3ll2. Therefoi it was inappropriate for the Magistrate to issue surlmons. Further he brought to the notice of the court that under section 39 of the ordinance the prosecution of a trustee of a Temple is the sole prerogative of the Commissioner. By the order of the learned High Court judge dated 715/13, it was held that pertaining to failure to tender accounts as per section 39 the sole authority for prosecution was the Commissioner and set aside the order of the leamed Magistrate for the issuance of summons. Furthermore costs of Rs. 125,0001: each, totaling up to Rs 500,000/: were ordered. The learned counsel for the Appellant invited this court to consider the alternative remedy available where Revisionary Jurisdiction can be invoked under special circumstances. Furthermore special circumstances should not be merely questions of law but circumstances that shock the conscience of the court and also that a remedy of a revision is available to a person "aggrieved". The issuance of sufllmons does not make a person "aggrieved". Counsel for the Respondent submitted that in terms of Section 39 of the act, only the Commissioner has the authority to institute action in respect of defaults with regard to the accounts but the Complaint in his personal capacity had lodged complaints in the Magistrates court of Kandy which resulted in the corlmencement of Cases Nos. 52409,52410,52411and No. 52412. Further that the fund of the Sri Dalada Maligawa would be spent after obtaining the approval of the said Commissioner and the accounts would be audited by a Chartered Accountant prior to the same being sent to the Commissioner resulting in a delay which is explained by the Maha Nayake Theros of two Chapters. Also the Respondent on2610ll12had made Application bearing No. DSP 00368112 to the District Court seeking relief in terms of Section 33(a) and 33(b) of the act and an extension of time till 3ll03ll2 to furnish the statements of accounts for period January 2009 to December 2011. 5 * 3 t7 The learned Distri.ct judgglaving considered the subrnissions made on behalf of the said commissioner ornuaar,Ist Affairs, granted time till zt toiizot2 to tender the said statements (order dated r3/03/2orif---*' circumltance.s the alreged charges in cases No. 5240g. not be treated as offenies contemplated by a.;;;;, the Complaints to interven. i, bu.. No. DSp n rejected by the District Court. ItissubmittedbytheRespondentthattheComplainanthav{r8goton.ly5votesat the Election trf the Diyawadanu Nilu,n. i., *rri.Tirre R"rporrlJZil;;. elected, was the said baseless private complaints. d to the failure to fumish ttt. ,uia iiatements which e Respondent within the time allow" t, the District The said Commissioner hac in -l;;; ttY Commissioner in Kandy of 11,:l rdent had been exonerated 5"o orsix months jr*. ,i,:*:1i:-.."h1;.^-'"' taken to obtain such statements in due time. rd that steps would be It is pertinent to note that the commissioner after inquiry had decided not to ch. le a or to take action under Section 39,of the - ;;'p.:secute, the Respondent in court a and granted an o.p-pot*ity to tender the u..o,rririn tirne. The Maha Nayake fl Theros had specifically i"ai.ut.J.that a a.i"yl, .ending the accounts was p lilffi:[i:: 1.ffi:l'*'rTfjfes such ";"";il,g,ioii;;;;;""ar by a, tr onrv be "xe."ised by the c;--;i.t1il#:ilT#f,"ffi:llJii.;gard can n -T This court is of the vi _7 1 ^^,^ -.- N into the Ct_iir.io., dated 20106/20l l had been inquired ,p miscondu;ii;"."^^ ndent not guilty of the alleged acts of explained by the e accounts had been sufficiently prosecute the Respon Commissioner's decision not to I o o 25 4 * Section * t) "true and correct" within 30 days of the end of each half year to the Public Trustee (presently to the Commissioner - General of Buddhist Affairs). Such accounts should be countersigned by the Mahanayake Theras of Malwatte Vihare and Asgiriya Vihare. The provisions of Section 39 contemplate an irqurry by the Commissioner in the case of any income not being duly accounted for andto cause to be prosecuted aoy delinquent trustee. This court is of the view that the High Court was justified in taking the view that only the Commissioner is empowered to hold an inquiry as a condition precedent to satisff himself that any trustee is reasonably be suspected of having committed a crimihal breach of trust prior to cause such trustee tortre prosecuted. It is also noted by this case that by the High Court is that the Respondent had already invoked the provisions of Section 33 of the Act in District Court of Kandy Case No. DSP3 68112 and No. SPL|373/12 seeking relief and the District Court had granted such relief. Therefore, the said Section 33, authorizes the oourt to give relief on an application by the trustee against any accidental mistake or omission or any informality, extent the time fixed for any action or proceeding and to order any person to discharge any duty within a time fixed in the Order. These reliefs could be granted by the Court in respect of any matter, any action or any duty under the Ordinance as the justice of the case may require. According to the Order dated 2610712012 in Case No. SPL 373112, state counsel appearing for Commissioner - General had informed the Court that the accounts for the period 2005-2008 had been already submitted although not within the time prescribed by Section 36 and the Learned Additional District Judge had concluded that such accounts being accepted by the Commissioner, relief should be granted for the accident mistake or omission of the Respondent. Therefore in these circumstances, the Complainant could not have made and the Magistrate's Court did not have jurisdiction to entertain the said impugned private plaints as in above mentioned cases in the Magistrate's Court. ralf 5 :tion 3 ). otbs vhich strict rerated iqed rcts of 1g $\R \>) Y I 3d, )r le I 6 cotrrt all tn E);-a I -', - ta + considering above we are ofthe view that this courthas no basis to interfere with the order of the learned High Courtidg;. -' Therefore, Appeals of all connected cases are hereby dismissed. * f-f-u\ ox, co oF P. Padman Surasena, J. (p/CA) f, Agree. S NT OF COIIRT OFAPPEAL TRI.B PV 2023 t * a.aaa ttaaa Sectiona! ffiegistrar Court cf Appeai, Coiombo 12. 6 INT a' sc/sr cA (PI PHC I MC Kr 4 e i /, LA.Nos. 67 8 69(?OLA e, 7pl2o18 ere IN THE SUPREME COURT OF C SOCIALIST REPUBLIC OF SRI LAI{I(A In the matter of an application for Special Leave to Appeal in terms of Article 128 of Constitution of the Democratic Socialist Republic of Sri Lanka. PEAL sc/SPL/LAlNo: 70l2OL8 CA (PHC): 50/2013 PHC Kandy:8612012 MC Kandy:52409 1 t FEB 2o?3 Rasika Sudantha Senanayake No. 110, Cl, Godagandeniya, Peradeniya. Punchibandara Galwala Road, Plaintiff-Resoo ndent-Appellant- Petitioner Pradeep Nilanga Dela Diyawadana Nilame Nila Niwasaya, Dharmapala Mawatha, Kandy. 1 'x \L I/s. o o)a 25 M nde '/b BEFORE SC.SPL.LA.Nos. 6712O 1& 68/2O18. 69l2ora e 70l2oLa B.P. ALTIWIHARE, PC, J. JANAII DE SILVA, J. & ARJUNA OBEYESEKERE, J. COUNSEL Chrishmal Warnasuriya with Du shantha Kularathne instructed by M.I.M. Iynullah for tlre Plaintiff- Re sp on dent-App ellant- Petitioner. H. Withanachchi with Shantha Karunadhara for the Re spondent-Petitioner-Re spondent- Respondent. ARGUED & DECIDED ON 10ft ofJanuary 2023 B.P. ALIIUIIIARE. PC. J. Heard the learned Counsel for the Petitioner in these 04 applications and tlee learned Counsel arnong other matters urged that the cost of Rs. [25,OOO/- imposed on the Petitioner in each of these applications a-re excessive in that these are criminal prosecutions, the Petitioner has instituted by invoke in Section 136 (1) of the criminal Procedure code. The learned counsel for the Respondent however submits to Court that he is not amenable to granting any relief with regard. to the cost imposed' on the Petitioner' In view of the fact tl.e cost of litigation the Respondent had to endure in these matters' Having considered the submissions made this court is of the view this is a frt matter to grant Special Leave on the question of law referred to in pa-ragraph 25 (G) of the Petition of the Petitioner' 2 25 ulvm * * a t This Court hotaeuer in term.s of Rule 16 (1) of the Supreme Court Rutes wilt consent of the parties proceeded and decided to hear and detennine this Appeal on the question of law on uhichspecial Leaue is granted. dispensing with compliance with the proui.sions of these Rules in regard. to the sleps preparatory to the heaing of such Appeal and the matter uas heard.. However, this Court is of the view that the cost imposed on the Petitioner in these matters are excessive and having considered the facts and circumstances relating to these matters, this Court is of the view that ends of justice would be met it the Petitioner is directed to pay costs in sum of Rs. 2S,OOO1- in each of these applications. Accordingly, the cost of Rs. 125,0OO/- imposed on the Petitioner by the High Court is set aside and in lieu of the said srlm, the Petitioner is directed to pay a sum of Rs. 25,000/- as costs in each of these applications. Subject to the said variation, applications are dismissed. This order is applicable to SC.SpL.LA.Nos. 6T/2olg, 6gl2org, 69/2o1g and 7Ol2Ot8 JUDGE OF THE SUPREME COURT JANATI DE SILVA. J. I agree I .---J JUDGE OF THE SUPREME COURT ARJUNA OBEYESEKERE. J. I agree LBI- tt t 3 JUDGE OF t7 17. _ 2023.0s.2s o1O.Oo. qEcocOar :- R. gqala g.Ea.Ocd oeizlcrlccozs: Oo.oozrJ.Oo :- gqd 6e.o Qte odl ogfdc0c3ada arc q8<ocOanc8zordcr 6zrJg 6r.:Oc Q @ eoqoc erc6oOccaJO ozrc68 6nal zod q1rl eeOtoal Ogzrlar. oglddc8ardSoc,i 6zrlgo 6<oOc oqzr eE. qdcocOa"lco 6dgo zsrd q1ar. oeralo9zodl 88al 0o6,10 QBc,C gdo I al oce$4Od eo@O:rf8zl arQ Eceglg esgoc ooOo:6Q. qd/arogl: gtoc8zodcr 6696. ord oOozrj oOO rnQoD Oo.oorJ. Oo Oa: gQd 69.o qlgO"Ocd Orrr Oc gq qo: oOO aQzod 4 80 OztIQ 9Ce 61.250001- (6EeraJqoecd) arEEJ Q.gdocozor - 19733020024 (do.rr,r.q.zoco) gqed 6O.dqO a6ol zo'16 Ogc gOc co6O. qzd/zorsi ,qDtln\A\t oQE gordzrJ 89 q"zo: 0l 8O l$gdoc qlafoOaloa} 9oa"1Od goc8zordcr o:Q q"ar gd 8612012 qda zrQoO oglddc8zod.oocJ toc qSocOac8al6aoci 6alg 06 6)r 2023105125 zorc5cso c.rOaloa'i ei16 eoOoozrJ coal-r: csodzo EOoarzol OOO ecodzsr zod6. a : a L /r;l eozsloi ?ood elBafsc zooC a26arcal8 g"zorco a alQcS