072-NLR-NLR-V-65-VINNASITHAMBY-Petitioner-and-JOSPEH-et-al.-Respondents.pdf
WEERASOORTYA J.— Vinnasithamby v. Joseph
350
1961Present: Weerasooriya, J.
VINNASITHAMBY, Petitioner, and JOSEPH et al., Respondents,
S. C. 100—Application for a Writ of Mandamus on A. A. JosephAssistant Commissioner of Local Government, Jaffna, and another
Mandamus—Addition of necessary parties—Permissibility.
In an application for a writ of mandamus it is open to the petitioner to movethat further parties be added as respondents (if they are necessary parties),provided that on the date on which the application is made to add the partiesthe substantive application before the Court is not ready for inquiry.
APPLICATION for a writ of mandamus.
Izadeen Mohamed, with H. D. Thambiah, for petitioner.
B. C. F. Jayaratne, Crown Counsel, for respondents.
E. R. S. R. Coornaraswumy, with R. Munickavasayar, for parties noticed.
Our. adv. vult.
December 21, 1961. Weerasooriya, J.
The only question that was argued when this matter was taken upon the Sth December, 1961, was whether it is now too late for the peti-tioner to have the parties-noticed added as respondents to the application.Counsel for the petitioner concedes that these parties are necessary
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WUnSRASOORIYA, J.— Vinnaaithamby v. Joseph
parties and should have been made respondents to the application whenit was filed. Counsel for the partiea-notieed relied on the case of (forme-tiUe-ke v. Government Agent, Gatte1, for the submission that it is too latefor the petitioner to move to add fresh parties. In that case an appli-cation to add a necessary party was refused by Keuneman, S.P.J., on theground that it was made at too late a stage. It is not clear, however,from the judgment what stage the proceedings had reached on the datewhen the application was refused. If all the preliminary steps hadalready been taken (such as the filing of objections and affidavits by therespondents) and the matter was ready for inquiry into the substantiveapplication before the Court, I would respectfully agree that it was toolate for the petitioner bo have moved that further parties be added.
When the application in the present case was listed on the 16th June,1961, learned Crown Counsel who appears for the two respondents on therecord raised a preliminary objection that certain necessity parties •had not been made respondents. It was in view of that objection thatcounsel for the petitioner moved the Court that the Chairman and Vice-Chairman of the Karachchi Village Committee be added as parties, andnotice was thereupon ordered on them to show cause why they shouldnot be added. It would appear-, however, that on the date on whichthe pi-eliminary objection was raised the matter was not ready forinquiry, neither respondent having up to then filed any statement ofobjections or affidavit in regard to the substantive application beforethe Court.
No hard and fast rule can, of course, be laid down as to when anapplication for the addition of necessary parties, when made prior tothe date of inquiry, should be allowed or refused. In the present case,no grounds were urged by Mr. Coomaraswamy, who appeared for theparties-noticed, other than the decision, in Goonetilleke v. GovernmentAgent, Galle {.supra), as to why the petitioner’s application that theybe added should be refused. I have not referred to certain other casescited by Mr. Coomaraswamy as they are not directly in point.
I would order that the parties-noticed be added as the 3rd and 4threspondents subject, however, to the following terms to be compliedwith by the petitioner : He will deposit in Court a sum of Rs. 1,000/and enter into a bond hypothecating the same as security for any costswhich he may be ordered to pay in these proceedings to the respondents(including the 1st and 2nd respondents). The petitioner is requiredto take these steps on or before the 15th January, 1962. and on his failureto do so the application for the writ of mandamus will stand dismissedwith costs. If the petitioner complies with these terms a further twoweeks’ time is given to the respondents (including the 1st and 2nd res-pondents) to file their objections and affidavits, if any. The matter willthereafter be listed for inquiry as early as possible.
I make no order as to the costs of the 8th December, 1961.
Addition of further parties allowed.
1 {1940) 47 N. L. R, 540.