HON’BLE SRI JUSTICE A. GOPAL REDDY CIVIL REVISION PETITION No.4514 OF 2007 DATE:19-11-2010 BETWEEN Polisetti Venkata Suresh Babu …Petitioner AND Polisetti Gopu Raju & Others …Respondents THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY CIVIL REVISION PETITION No.4514 OF 2007 ORDER: This revision under Article 227 of Constitution of India is filed by the petitioner-proposed party to revise the orders of the Senior Civil Judge, Nuzvid, dated 28.6.2007 passed in I.A.No.891 of 2002 in I.A.No.498 of 2000 in O.S.No.14 of 1992 whereby the petition filed by the petitioner under Order I Rule 10 C.P.C. to add him as 9th respondent in I.A.No.498 of 2000 in the suit filed for partition has been dismissed. In spite of service of notice, the respondents have not chosen to put up appearance opposing the revision. The suit was filed by the minor-grand son of Polisetti Gopu Raju against defendants 1 to 8 seeking partition of A and B schedule properties and that the said suit was decreed on merits and a preliminary decree was passed on 16.7.1999. For passing a final decree, I.A.No.498 of 2000 was filed. Pending the said I.A., the petitioner herein- minor represented by his mother-Savitri being next friend filed I.A.No.891 of 2002 stating that his mother-Savitri married to second respondent after the death of his first wife-Kamala Sarojini, that during the wedlock, a mail child (petitioner herein) was born on 26.4.1992 in the hospital of Dr.Tataiah Babu of Nuzvid, and therefore, the petitioner is a necessary and proper party to the final decree proceedings. To substantiate the claim, the mother of the petitioner, Savitri herself examined as P.W.1 and examined the Head Master of M.P.U.P. school as P.W.2 and marked Ex.X.1-certificate issued by the doctor and Ex.X.2-date of birth certificate, which prima facie established that the petitioner was born on 26.4.1992. On behalf of the first respondent-plaintiff, D.Venkateshwara Rao, who is the next friend of the plaintiff was examined as R.W.1 and marked Ex.R.1-registered notice, dated 14.9.1991 and Ex.R.2-reply notice, dated 1.10.1991. By the impugned order, the lower Court dismissed the I.A. on the ground that P.W.1 did not adduce any evidence by examining the authorities of Sobhanachala Swamy vari temple and the village elders to prove that the marriage of P.W.1 was celebrated on 15.6.1991 with the second respondent; that she did not adduce any evidence when she was conceived after her marriage with second respondent; that there was no evidence that on the date of filing of the suit, the petitioner is in the womb of his mother i.e. next friend. Having held that the infant who is in the womb of her mother is entitled for partition, it was observed that the next friend of the petitioner did not adduce any cogent evidence on record to show that the petitioner-proposed party was born to the second respondent on 26.4.1992 before filing of the suit. It was held that no evidence was adduced to prove the gunuinity of Exs.X.1 and X.2 and that the author of Ex.X.1 was not examined and that there are corrections and over writings in the admission register-Ex.X.2 with regard to the date of birth of the petitioner. An inference with regard to the genuinity of Exs.X.1 and X.2 can be drawn only after full-fledged trial in I.A.No.498 of 2000, which is filed for passing final decree proceedings, by giving opportunity to all the parties to adduce further evidence on impleadment of the petitioner in the proceedings. The fact remains that the suit was filed on 31.12.1991 and it was numbered in 1992 and prima facie, as per the certificate under Ex.X.1, the petitioner was born on 26.4.1992. Therefore, as on the date of filing of the suit, he was 5 months baby in the womb of his mother. Whether the date of birth of the petitioner as 26.4.1992 is correct or not has to be established after impleading the petitioner in I.A.No.498 of 2000. In that view of the matter, the lower Court committed illegality in dismissing the impugned I.A. at the threshold. Accordingly, the revision is allowed and the impugned order is set aside and I.A.No.891 of 2002 stands allowed. The parties are at liberty to adduce further evidence in the matter. No order as to costs. _______________ A. GOPAL REDDY, J. NOVEMBER 19, 2010 Tsr.