D PERIASAMY Vs. MARY MOHAN PRASAD

JUDGEMENT

(1.) THIS writ appeal is preferred by one D.Periasami, a third party-appellant against the order of the learned Judge of this Court in W.P.No. 3087 of 1988, dated 21.4.1988, impleading the writ petitioner as first respondent and respondents 1 to 3 in the writ petition as respondents 2 to 4 herein. The writ petition was filed for issue of a writ of Mandamus to direct respondents 2 to 4 herein to hand over the key in respect of the premises No.8-A, Jain Hind Nagar, Ernavur, Manali High Road, Madras - 57, to the first respondent herein forthwith, in due compliance with the order of the Sub-Collector, Saidapet, dated 12.2.1988 issued at the instructions of the Collector of Madras.

(2.) IN supporting affidavit, it was claimed by writ petitioner as follows: The petition property belongs to first respondent and that one A.D. Periasami Nadar, the third party appellant herein was entrusted with the task of constructing the building. He had since raised an untrue claim that the property belongs to him and that there were exchanges of legal notices between them and thereafter she took possession of the building. Applications have been made by her to Municipality and Revenue authorities for assessment purposes and to Electricity Board to get electricity supply to the premises. Because appellant was giving trouble with the connivance of anti-social elements she had lodged a complaint on 6.3.1987 with the third respondent, who took up the complaint and registered a case against appellant in Cr.No.72 of 1987 under Secs.147, 148 and 452, etc. INdian Penal Code. One day, he entered the building and caused injuries to herself and her husband, and they were treated in Stanley Medical Hospital. At present, she is living in her mother's house. There was an enquiry under Sec.145, Crl.P.C. against her, and it was found to be a civil dispute, and in spite of it, the key of the premises is illegally retained by the third respondent. IN spite of the order of the SubCollector, the third respondent had not handed over the key of the premises, and therefore, she had filed the writ petition.

(3.) FROM what has narrated above, it cannot but be held that there is a wanton, deliberate, conscious and motivated avoidance to implead the appellant who is the necessary and proper party to the writ petition. Once a reference is made in the affidavit about the appellant having put forth a claim of ownership to the property and exchange of legal notices between them, the Court ought to have called upon the first respondent either to implead the appellant as a respondent or dismiss the writ petition for having failed to implead him. The subject matter of the writ petition was the taking custody of the key of the premises in respect of which there is a dispute over ownership and possession, and the name of the person who is claiming such rights having been mentioned, the writ petition could not have been allowed in the manner done.