* THE HON’BLE SRI JUSTICE V.V.S.RAO + CIVIL REVISION PETITION No.3553 of 2004 % 22.9.2011 # Gudemella Veera Raghavadharyulu, S/o.Late Krishnamacharyulu And another … Petitioners AND $ Bavisetty Ranganayaka, W/o.Annavaram And others … Respondents ! Counsel for the petitioner: Mr.P.Govind Reddy Counsel for the respondents: < Gist : > Head Note: ? Cases referred 1. AIR 1995 AP 105 2. 2004(2) ALD 350 THE HON’BLE SRI JUSTICE V.V.S.RAO CIVIL REVISION PETITION No.3553 of 2011 September 22, 2011 Between: Gudemella Veera Raghavadharyulu, S/o.Late Krishnamacharyulu And another ... Petitioners And Bavisetty Ranganayaka, W/o.Annavaram And others ...Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO CIVIL REVISION PETITION No.3553 of 2011 ORDER: In the suit filed in 2006 by the first respondent herein (hereafter, the plaintiff) for partition of the suit schedule properties into two shares and for allotment of one such share to her, the petitioners herein were arrayed as defendants 4 and 5. At that time, they were minors. During the pendency of the suit, they attained majority. On the application made by the plaintiff, by an order dated 19.4.2011, they were declared majors discharging their natural mother as guardian who was representing them in the suit. There is no dispute that the guardian filed written statement on behalf of the minor sons – the petitioners herein. In July, 2011, they filed an application under Section 151 of the Code of Civil Procedure, 1908 (CPC) being IA (SR) No.708 of 2011 praying the Court of XI Additional District Judge, Kakinada where the suit is pending, to direct the plaintiff to take steps to serve suit summons on the petitioners as per law to enable them to proceed with the matter. The trial Court dismissed the said application by an order dated 14.7.2011, which reads as under. The petitioners were defendants 4 & 5, the suit was filed against them originally who are minors by then represented by their mother as guardian. During the pendency of the suit they attained majority. The respondent filed an application to declare them as majors and to discharge their guardian. In the said application, the petitioners engaged an advocate and contested the said application and ultimately the said application was allowed declaring the petitioners are majors. Petitioners were given an opportunity to file their written statement if any and as they did not file, the suit was adjourned for cross-examination of P.W.1. Therefore this is not a case where petitioners are newly added as parties to the suit. On the other hand, they engaged an advocate on an application filed by the plaintiff to declare them as majors. Hence, there is no need to direct the respondents/plaintiffs to take steps for service of suit summons on them. This petition is liable to be rejected at the threshold. Hence, it is rejected. The learned Counsel for the petitioners/defendants 4 and 5 inviting attention of this Court to Vanimisatti Anil Kumar v Jayavarapu Krishna Murty[1] and Kothalanka Durgavara Prasada Rao v Datla Chandraiah[2] would submit that when the petitioners were declared as majors to prosecute the suit on their own, unless and until the suit summons is served and they are given opportunity to file written statement they would not be able to meet the case of the plaintiff. According to him, it is in the interest of justice that whenever the minors who are party defendants to the suit from the beginning, become major, the Court must order the plaintiff to take out fresh summons in the interest of justice. The submission made by the Counsel is wholly misconceived and is not supported by any principle of law. Section 27 and Order V of CPC require the Court to send the summons either for disposal of the suit or settlement of issues (Rules 1 and 5 of Order V). Order I Rule 10(2) of CPC, inter alia, empowers the Civil Court to add the name of any party whose presence may be necessary in order to enable it effectually and completely to adjudicate upon and settle all the questions involved in the suit. If a party is added subsequently as necessary or proper party by the Court suo motu or upon the application of either party, the plaint shall be amended and copies of summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant under Order I Rule 10(4) of CPC. The death of a plaintiff or defendant shall not cause the suit abated if the right to sue survives (Order XXII Rule 1 of CPC). In case the plaintiff dies, the Court on an application shall cause legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. In case of death of the defendant, the Court shall cause the legal representative of deceased defendant to be made a party and shall proceed with the suit subject, however, to the exception contained under Order XXII Rule 4(4) CPC. In such case also, CPC does not contemplate issue of summons as stipulated in Section 27 and Rules 1 and 5 of Order V CPC. Even under Order VIII Rule 9 CPC, unless and until the Court grants leave, the defendant cannot present additional pleadings subsequent to his written statement. But, the Court may at any time require written statement or additional written statement from any of the parties and fix time not more than thirty days for presenting the same. In addition to this, in case the Court permits amendment to the plaint under Order VI Rule 17 CPC, in its discretion the Court may permit the defendant to file additional written statement. Even in such an event, a fresh summons is not required by law. Thus under the scheme of CPC, the repeated issue of summons is not contemplated. The suits by or against minors are regulated by the Rules in Order XXXII CPC. In a suit against a minor he/she shall be represented by guardian of the minor defendant who may be appointed by the Court or otherwise. Order XXXII Rule 12 CPC contemplates that when a minor attains majority and elects to proceed with the suit, he shall apply for an order discharging the next friend and for leave to proceed in his own name. The law here also does not contemplate issue of fresh summons when a minor obtains the leave of the Court under Order XXXII Rule 12 in this regard. This derives further support from Rule 3A of Order XXXII CPC, which is to the effect that no decree passed against a minor shall be set aside merely on the ground that the next friend or guardian of the minor had interest in the subject matter. In Vanimisatti Anil Kumar, the legal position was elucidated as under. It is settled law that, a minor, after he becomes major, is always entitled to question the transactions, done on his behalf during his minority, by his guardian, by filing a separate suit. … … … Order VI, Rule 17, C.P.C. will apply to a case where a separate written statement is sought to be filed by the same defendant contrary to the averments already made by him in the earlier or previous written statement. The provisions of O. VI, R. 17, C.P.C. will not apply to the case of a minor filing a separate written statement, on attaining majority. As stated already, the minor can, after his attaining majority, within the time prescribed, question the transactions done by his guardian on his behalf, during his minority. Therefore, I hold that there is no illegality or irregularity in filing a separate written statement by the 2nd defendant on his attaining majority, contrary to the averments already made on his behalf, by his guardian --the 1st defendant, in the earlier written statement. In Kothalanka Durgavara Prasada Rao, it was held that after a person is added as a party to the proceedings, amended copies of the summons and of the plaint have to be served on the new defendant and if the Court thinks fit also on the original defendant after adding the party. This is not an authority to support the petitioners’ contention. They have been defendants from the inception of the suit and they through their guardian have already filed the written statement. Merely because they were declared as majors on attaining the majority, it does not entail them to seek an order from the Court directing the plaintiffs to take out fresh summons. The submission is devoid by merit. The civil revision petition, for the above reasons, is dismissed. No costs. _________________ (V.V.S. RAO, J) September , 2011 NOTE: L.R. Copy be marked. (By order) YS [1] AIR 1995 AP 105 [2] 2004(2) ALD 350