IMPORTANT POINT
Addition of parties is generally not a question of initial jurisdiction of Court but of a judicial discretion.

Surya Prakash Kesarwani, J.—Heard Sri D.P. Tripathi, holding brief of Sri K.K. Tripathi, learned counsel for the defendants-revisionists.

2. This revision has been filed praying to set aside the order dated 13.7.2017 in case No.1568 of 2013 (Om Prakash Chaurasia Vs. Vijay Prakash Chaurasia), passed by the 1st Additional Judge Small Cause Court, Kanpur Nagar, whereby the impleadment application being paper No.70-C under Order I Rule 10(2) C.P.C. filed by the defendants-revisionists for impleadment of Bank of India through Branch Manager, and M/s. AVS Rotopac Pvt. Ltd., Kanpur as defendant has been rejected on the ground that neither any relief has been sought by the plaintiff against the aforesaid persons nor they are necessary or proper party.

3. Briefly stated facts of the present case are that the plaintiff-respondent filed a case No.1568 of 2014 on the ground that he is the sole owner of the disputed property which is being occupied by the defendants-revisionists as licensee and despite termination of the licence the disputed property is not being vacated. Therefore, a mandatory injunction be granted in favour of the plaintiff and against the defendants to vacate the whole disputed house No.133/276 Transport Nagar, Kanpur and damages be also awarded. The defendant no.2 is the son of defendant no.1 who is the real brother of the plaintiff. The case set up by the defendants-revisionists is that the disputed property is the joint family property of which he is the co-owner and not licensee.

4. The defendants-revisionist have earlier filed an application under Order VII Rule 11 C.P.C. on the ground that the suit is barred by SARFAESI Act inasmuch as the disputed property was mortgaged with the bank for taking loan and certain proceedings have been initiated by the bank in D.R.T. The said application was rejected which was challenged by the defendants-revisionists in Civil Revision Defective No.20 of 2017, which was dismissed by order dated 10.2.2017 observing as under:—

“This Court finds that in the present case there is no dispute inter se the bank and the borrower and no relief has been sought against the Bank. The cause of action disclosed in the plaint is that the plaintiff is the owner of the premises and the defendant its licencee who, despite termination of licence, did not vacate the premises. On the basis of the plaint averments, the suit cannot be said to be barred by the provisions of SARFAESI Act and it also cannot be said that the plaint does not disclose cause of action, therefore, the court below was legally justified in rejecting the application for dismissing the plaint under Order 7 Rule 11 CPC, inasmuch as, it is well settled in law that at the time of considering the prayer as to whether plaint is liable to be rejected under Order 7, Rule 11 CPC only the plaint averments are to be seen (see P.V. Guru Raj Reddy Vs. P. Neeradha Reddy, (2015) 8 SCC 331; C. Natraja Vs. Ashim Bai (2007) 14 SCC 183). Whether the suit is otherwise barred or not by law, if not ex facie apparent from the plaint averments, cannot be made basis for rejection of plaint under Order 7, Rule 11 CPC, but can always be raised and decided as an issue at an appropriate stage (See Vishnu Dutt Sharma Vs. Daya Sapra; (2009) 13 SCC 729).”

5. Thereafter the defendants-revisionists filed an application under Order I Rule 10 C.P.C. praying for impleadment of the aforesaid Bank of India and another which has been rejected by the impugned order dated 13.7.2017. Aggrieved with this order the defendants-revisionist have filed the present revision.

6. There is no dispute inter-se the bank and the borrower and no relief has been sought against the bank in the aforesaid case No.1568 of 2013. The cause of action disclosed in the plaint is that plaintiff-respondent is the owner of the premises and the defendant is his licensee, who, despite termination of the licence did not vacate the premises. On these facts, it can not be said that the aforesaid