Judgment:
P.N. Nag, J.
(1) This revision petition is directed .against the order dated 29th January, 1990 passed by Shri R.S. Mahia, Sub Judge 1st Class, Delhi whereby he has disallowed the application made by the plaintiff, namely Smt Saroj Bhutani for impleading Kumari Deep, who is alleged to have been adopted-during the pendency of the suit by her.
(2) The facts giving rise to the revision petition are that the husband of the present plaintiff, Shri 0m Prakash Bhutani, originally filed a suit for declaration against defendants I to 3, that the plaintiff and defendants I to 3 are the joint owners in the property bearing No. P. 52, Kirti Nagar, New Delhi being members of the Hindu undivided family or even as co-owners. During the pendency of the suit, the plaintiff, Shri 0m Prakash Bhutani, died and the present plaintiff, i.e., Smt, Saroj Bhutani was substituted as a plaintiff in place of the original plaintiff, her husband. It may be noted that defendant No 3 is the mother of the original plaintiff, Shri 0m Prakash Bhutani.
(3) During the pendency of the suit, the plaintiff, Smt. Saroj Bhutani filed an application dated 7th November, 1989 under Order I Rule 10 read with Order 6 Rule 17 and Section 151 of the Code of Civil Procedure, 1908 that she has adopted Kumari Deepa, then aged about 8 years, daughter of her brother Shri R.K. Khanijow, as her daughter on 11.7.1989 to her husband late Shri 0m Parkash Bhutani and thereforee, Kumari Deepa is a necessary party to be imp leaded as plaintiff No. 2 in the suit and consequently the plaintiff may be allowed to amend the plaint and include the name of Kumari Deepa as plaintiff No. 2.
(4) The adoption of Kumari Deepa was opposed by the defendants The said application was dismissed vide the impugned order on the ground that since the adoption of Kumari Deepa is doubtful as revealed from the adoption deed, Kumari Deepa is neither a necessary nor a proper party for proper adjudication of the matter inasmuch as since Kumari Deepa has not been adopted legally as contained in Section 11 of the Hindu Succession and Maintenance Act. Being aggrieved from this order the plaintiff-petitioner, Smt. Saroj Bhutani, has filed this revision petition.
(5) The revision petition has been opposed by Mr. Jaitley, counsel for the respondent. He has submitted that Kumari Deepa has not been adopted by the petitioner-plaintiff and the learned Judge has rightly held that the adoption of Kumari Deepa is doubtful and, thereforee, she is neither necessary or proper party for the proper adjudication of the matter.
(6) I am afraid this contention of the learned counsel for the respondent is wholly devoid of force. At the stage of determining whether or not a party should be added as a plaintiff or a defendant should be decided with reference to the averments made in the plaint and the matter in controversy. The court cannot go into and give a finding on the merits of the amendment sought for without first allowing the amendment and framing an issue thereon and allowing both sides to adduce evidence. An order allowing or refusing amendment does not affect or determine any right or liability of a party to the litigation. thereforee, the court at this stage should not have given a finding 'whether Kumari Deepa has been legally adopted by Smt. Saroj Bhutani and it should have. proceeded on the basis of the averments made in the application by the plaintiff- applicant. The approach of the trial court has been erroneous and with the result he has acted with material irregularity in the exercise of jurisdiction.
(7) Having regard to the averments made in the application and nature of the suit that Kumari Deepa has been adopted, then aged about 8 years, daughter of her brother ShriR.K.Khanrjow, as her daughter on 11.7.89 to her husband late Shri om Parkash Bhutani, in my opinion, the presence of Kumari Deepa as plaintiff No. 2 before the court is necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit. thereforee, in these circumstances the application should have been allowed and Kumari Deepa should have been allowed as plaintiff No. 2.
(8) In the light of the above discussion, the revision petition is allowed, the judgment of the trial court is set aside and Kumari Deepa is permitted to be added as plaintiff No. 2 as prayed for in the application. There will be no order as to costs.