IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.172 of 2009 Prabhat Kumar Singh @ Prabhat Kumar son of Devi Kumar Singh resident of village Sonhan P.S. Sonhan Dist. Kaimur, Bhabua Defendant- Petitioner Versus 1. Satish Kumar Singh S/o Ramadhar Singh 2. Basant Kumar Singh 3. Dilip Kumar Singh Both sons of Satish Kr.Singh 4. Prince Kumar Singh 5. Saurav Kumar Singh Both minor sons of Basant Kumar Singh resident of village Sonhan P.S. Sonhan Dist. Kaimur, Bhabua Plaintiffs-opposite parties 6. Devi Kumar Singh S/o Ramadhar Singh 7. Shanti Kumar Singh S/o of Ramadhar Singh 8. Amresh Singh Minor S/o of Shanti Kumar Singh resident of village Sonhan P.S. Sonhan Dist. Kaimur, Bhabua Defendant-opposite parties ----------- For the Petitioner: Mr S.S.Dwivedi, Sr. Advocate Mr R.S.Dwivedi, Advocate Mr L.L.Pandey, Advocate Mr R.K.Dubey, Advocate For Opposite parties: Mr K.M.Choubey, Sr. Advocate Mr Rewati Kant Raman, Advocate Mr Mahesh Prasad no.2, Advocate --------- 08 23.07.2009 I.A. No.594 of 2009 has been filed by the learned counsel for the petitioner for condoning the delay in filing of this civil revision. From the averments made by the learned counsel for the petitioner and the statement made in the interlocutory application, it transpires that genuine reason has been shown which prevented the petitioner from filing the instant civil revision earlier. Accordingly, this interlocutory application is allowed and delay in filing this civil revision is condoned. 2. Heard learned counsel for the petitioner and learned counsel for opposite party nos. 1, 2, 4 and 5. Although notices were sent and validly served upon all the opposite parties but opposite party no.3 did not choose to appear. Furthermore opposite party nos. 6 to 8 - 2 - have filed vakalatnama in the instant civil revision but their counsel has not appeared at the time of hearing of this civil revision. 3. This civil revision has been filed by defendant no.3- petitioner challenging order dated 03.09.2008 by which learned Subordinate Judge II, Bhabua (Kaimur) rejected the petition for treating him as major and granting him opportunity to file written statement in Title (Partition) Suit no. 30 of 2003 and to contest the said partition suit. 4. It transpires that all the parties to the suit belong to the same family of Ramadhar Singh who had three sons Satish Kumar Singh (Plaintiff no.1), Devi Kumar Singh (Defendant no.1) and Shanti Kumar Singh (Defendant no.3), out of whom plaintiff no.1 had two sons, namely plaintiff no.2 and plaintiff no.3 whereas plaintiff no.2 had two sons, namely plaintiff nos.4 and 5, whereas defendant no.1 had one son, namely defendant no.2 and defendant no.3 also had a son, namely defendant no.4. 5. The aforesaid title suit was filed by the said plaintiff no.1 Satish Kumar Singh and his sons and grand sons for partition of the suit property claiming to be ancestral property against his brothers Devi Kumar Singh defendant no.1 and Shanti Kumar Singh defendant no.3 and their respective sons, namely defendant nos.2 and 4, Prabhat Kumar Singh and Amresh Kumar Singh. 6. It transpires that in the said suit defendant no.2 Prabhat Kumar Singh son of Devi Kumar Singh was shown as minor and hence guardian ad-litem was appointed for him who adopted the - 3 - written statement filed by his father and uncle namely, defendant no.1 and defendant no.3, whereafter the suit continued, issues were framed and evidence were adduced on behalf of all the parties and was closed on 29.10.2004 and the case was pending for final argument. It transpires that only thereafter a petition was filed on behalf of defendant no.2 Prabhat Kumar Singh (Petitioner) under Order XXXII Rule 12 of the Code of Civil Procedure claiming that he was born on 01.12.1984, as was apparent from the certificate of the Bihar School Examination Board, and hence he had attained majority on 01.02.2002 but was wrongly shown as minor in the partition suit which was filed subsequently in the year 2003. 7. Learned counsel for the petitioner further submits that he had no knowledge or notice about the said suit and although other parties to the suit were close relatives, no information was given to him with respect to it and he filed the said petition immediately after he came to know about the said suit stating all the facts and materials in support of it, but the learned court below wrongly rejected such petition. 8. On the other hand. learned counsel for the plaintiffs- opposite parties submits that the evidence was closed much earlier on 29.10.2004 and only when the argument in the suit was going to start the said petition was filed by defendant no.2-petitioner merely to delay the disposal of the suit in collusion with the other defendants as although according to him he had attained majority but no one ever raised any such objection in the suit and he continued under the - 4 - guardianship of guardian ad-litem. 9. It is also claimed by the learned counsel for the opposite parties that a petition under section 4B of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 was filed by all the defendants including defendant no.2 who was represented in that petition by his natural guardian, namely father (defendant no.1). It is further stated that when the said petition was rejected by the trial court, Civil Revision no. 2252 of 2005 was filed by the defendants including defendant no.2 (Petitioner) showing him minor through his natural guardian namely father (defendant no.1) but the said civil revision was also dismissed. 10. Learned counsel for the plaintiffs-opposite parties further submits that the impugned order was passed on an application under Order XXXIX Rule 12 of the Code of Civil Procedure but the said provision was merely with respect to granting leave to the plaintiffs and not with respect to minor defendant and hence said provision not being applicable in the fact and circumstance of the case, the said application was rightly rejected by the impugned order. 11. Learned counsel for the opposite parties also states that against the impugned order the petitioner has filed a petition in the court below under section 151 of the Code of Civil Procedure on 29.09.2008 which was dismissed by the trial court on 02.12.2008 but the said order was never challenged in revision by him and hence this revision can not be allowed and furthermore in any view of the matter a written statement has already been filed by the guardian-ad-litem on - 5 - behalf of defendant no.2 – petitioner adopting the written statement of his father namely defendant no.1 and thus if the petitioner is treated as major adopting the written statement of his father defendant no.1 the plaintiffs opposite parties will have no objection. 12. Considering the aforesaid facts and circumstance, it is quite apparent that there is no dispute with regard to the fact that defendant no.2- petitioner was born on 01.02.1984 and had attained majority on 01.02.2002 and hence he was a major at the time of filing of the suit in the year 2003. Defendant no.2- petitioner has specifically pleaded that he had no knowledge or information about the suit. This fact although denied by the plaintiffs, has not been falsified by any material to show that he ever had any notice, knowledge or information about the pendency of the suit, although the onus was squarely upon the plaintiffs, who were own uncle and first cousins of defendant no.2. Furthermore the suit having been filed for partition every person was a necessary party for the suit and without giving any opportunity to a party to the suit who admittedly belonged to the same family to place his case, no suit can legally continue. In any view of the matter a party to such a suit who was admittedly major, can not be deprived of placing his claim independently only because he was shown as minor in the suit and was represented by a guardian ad-litem who had adopted the written statement of other defendant. 13. So far the provision of Order XXXII Rule 12 of the Code of Civil Procedure is concerned, no doubt it is with regard to minor plaintiff, but only due to wrong labeling of a provision of law, - 6 - no application can be rejected, specially when there are other provisions, such an Order XXXIX Rule 3 of the Code of Civil Procedure etc, which if considered along with the fact that the plaintiffs were dominus litus, it would have become quite apparent that it were the plaintiffs who failed in their duty to either implead defendant no.2 as major or to get his guardian discharged specially when plaintiff no.1 was none else than the full uncle of defendant no.2. 14. These aspects of the matter have been completely ignored by the learned court below while passing the impugned order due to which it failed to exercise the jurisdiction vested in it under the provisions of law and committed grave illegality while passing the impugned order. Accordingly, this civil revision is allowed and the impugned order of the learned court below is set aside. Let defendant no.2-petitioner be treated as major with liberty to contest the suit. 15. However, this order will be subject to defendant no.2 (Petitioner) filing his written statement in the trial court within fourteen day from today. As agreed by learned counsel for defendant no.2-petitioner, he will not be allowed to cross-examine the witnesses already examined on behalf of other parties to the suit. However, if defendant no.2 wants to lead his own evidence, he must complete it within thirty days of the filing of his written statement and no further time shall be granted. The plaintiffs will be at liberty to cross-examine the witnesses of defendant no.2. Furthermore, if the plaintiffs want to lead their evidence in contradiction to the pleadings and evidence of - 7 - defendant no.2, they may produce their own evidence, oral or documentary within one month thereafter, when the evidence should be closed. Argument of the parties must start immediately thereafter which all parties concerned must conclude within six weeks thereafter. These are the directions to the learned court below, which must decide the suit expeditiously within a period of six months. shahid (S.N.Hussain, J)