- (1.) N. L. Ganguly, J. This is a Civil Revision against the order dated 12-5-1992 rejecting the application of the contesting defendant under Order I, Rule 10, C. P. C.
(2.) HEARD Sri A. K. Goyal, counsel for the applicant, Sri P. S. Dwivedi for the contesting respondents and Sri S. B. Singh for the Bank. With the consent of the parties the revision is being decided finally. A suit has been filed by the plaintiffs for declaration that they are the owners of the total amount of F. D. R. with interest and of the Saving Bank account in the joint names of Haji Amjad Yar Khan and Smt. Bilkeesh Begum and the defendant Bank bs directed to make payment of the said F. D. R. and S. B. Account with interest to each of the plaintiffs equally. The details of the amount have been given in the plaint. It is stated that the plain tiffs are the sons of the brother of Smt, Bilkeesh Begum and hence they are the heirs of Smt. Bilkeesh Begum, Any oral gift made by Smt. Bilkeesh Begum is ineffective and fictitious. On coming to known of the suit filed by the plaintiff, the revisionist filed an application under Order 1, Rule 10, C. P. C. saying that he is the son of Smt. Mukhtar Begum, real sister of Smt. Bilkeesh Begum, and ho was much close and intimate to Smt. Bilkeesh Begum. He stated that Smt. Bilkeesh Begum had executed an agreement dated 6-3-1990 and gifted half portion of her house to him. He further stated that Smt. Bilkeesh Begum was not happy with the plaintiffs. The terms between them were not good. A copy of the agreement dated 6-3-1990 is appended as Annexure 1 to the affidavit. Therefore, being the sole successor and heir of Smt. Bilkeesh Begum is entitled to get the amount of the F. D. R. and Saving Bank Account with interest. He, therefore, moved an application under Order I, Rule 10, C. P. C. for impleading him as a party in the suit as the plaintiffs have not made him a party to the suit. The said application was rejected by the court below, by the order impugned in this revision. The court below rejected the application for impleadment relying on decisions report in AIR 1927 Cal 191, Naseeb Ali v. Wajid Ali and others, and 1981 ALJ 567, Shri Mandir Madho Prithvi Nath v. Swamy Prakash Chand and others. The Court below observed that the general law is that in case there is any objection of the plaintiff for impleading a person under Order I, Rule 10, C. P. C. the court should not allow the impleadment of such person. The General law is that it is the plaintiff, who is the architect of the plaint he is to decide whom he should or whom he should not make a party to the suit. He takes risk of it upon himself. If any decree is passed in the suit, that would not be effective against a person, who is not a party to the suit. In the present suit it is clear that the suit was filed by the plain tiffs impleading Allahabad Bank, City Branch, Bareilly as a defendant, as certain relief was claimed against it. Since an relief was claimed against the applicant, he was not made a party to the suit.
(3.) THE learned counsel for the applicant Sri A. K. Goyal placed reliance on the decision reported in AIR 1953 SC 886, Razia Begum v. Sahebzadi Anwar Begum and others. THE Apex Court has formulated in Para 13 the considerations relevant for deciding the application for addition of parties under Order I, Rule 10, C. P. C. which are quoted as under:- " (1) that the question of addition of parties under Rule 10 of Order 1, of the Code of Civil Procedure, is generally not one of initial jurisdiction of the court, but of a Judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case ; but in some case, it may raise controversies as to the power of the court in contradistinction to its inherent jurisdiction, or, in other words, of jurisdiction in the limited sense in which it is used in Section 115 of the Code ; (2) that in a suit relating to property, in order that a person may be added as a party, he should have a direct interest as distinguished from a commercial interest, in the subject-matter of the litigation ; (3) where the subject-matter of a litigation is a declaration as regards status or a legal character, the rule of present or direct interest may be relaxed in a suitable case where the court is of the opinion Shat by adding that party, it would be in a better position effectually and completely to adjudicate upon the con troversy; (4) the cases contemplated in the last proposition, have to be determined in accordance with the statutory provisions of Sec tions 42 and 43 of the Specific Relief Act; (5) in cases covered by those statutory provisions, the court is not bound to grant the declaration prayed for, on a mere admission of the claim by the defendant, if tne court has reasons to insist upon a clear proof apart from the admission ; (6) the result of a declaratory decree on the question of status, such as in controversy in the instant case, affects not only the parties actually before the Court, but generations to come and in view of that consideration, the rule of 'present interest' evolved by case law relating to disputes about property does not apply with full force; and (7) the rule laid down in Section 43 of the specific Relief Act, is not exactly a rule of res judicata. It is narrower in one sense and wider in another. " Considering the facts of the present case it is abundantly clear that the plaintiffs and the present applicant are claiming interest in the property of Smt. Bilkeesh Begum. THE applicant claims that he is the owner of certain property gifted by Smt. Bilkeesh Begum in his favour, therefore it cannot be said that he is a quite stranger. THE court is to examine the case and see that the other party may not be put to an irreparable loss for want of his impleadment in the case. In the present case the payment of the F. O. R. and Saving Bank Account with interest from the Bank is disputed. If the said payment is made to the plaintiffs, the applicant, who also claims himself to be entitled for the same, shall suffer and irreparable loss. THEre fore, the court has to see that justice is done to the parties. I am, therefore, of the opinion that the order passed by the court below dated 12-5-1995 rejecting the application of the revisionist under Order I, Rule 10, C. P. C. is manifestly erroneous and is liable to be set aside. The revision is allowed. The parties shall bear their own costs. The court below is directed to allow the application of the revisionist under Order I, Rule 10, C. P. C. and permit him an opportunity to file written state ment in the suit. The court below is further directed to decide the suit itself expeditiously according to law. Revision allowed. .;