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.

2. The learned Counsel for the petitioners/defendants 4 and 5 inviting attention of this Court to Vanimisatti Anil Kumar v Jayavarapu Krishna Murty AIR 1995 AP 105and Kothalanka Durgavara Prasada Rao v Datla Chandraiah 2004(2) ALD 350 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.

3. 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.

4. 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 def