ORDER :

The Civil Revision Petition is filed under Article

227 of constitution of India against the order dated 02.12.2022 dismissing the petition in I.A.No.666 of 2019 in O.S.No.26 of 2014 on the file of the Court of X Additional District Judge, Narsapur, filed by the 1st defendant under Order I, Rule 9 and Section 151 of C.P.C to dismiss the suit against the remaining defendants in view of the dismissal of the suit against the 2nd defendant by name Dr.Tandra Usha Rani.

2. Heard Sri Turaga Sai Surya, learned counsel for the revision petitioner/1st defendant, Sri T.V.S.Prabhakara Rao, learned counsel for the respondents No.1 and

2/plaintiffs No.1 and 2.

3. The plaintiffs No.1 and 2 filed the suit for partition against the defendants 1 to 9. The suit was dismissed against the 2nd defendant on 01.08.2017, for non- payment of batta for service of summons to the 2nd defendant. It is contended by the petitioner/1st defendant as per the judgments of the apex Court and High Court, it is clear that in a partition suit, all the co-sharers are proper and necessary parties to be impleaded in the suit, otherwise it is fatal and the suit is liable to be dismissed.

4. The respondents No.1 and 2 filed counter opposing the petition and further stating that the issue raised by the petitioner/D1 can be considered during the course of trial and not in interlocutory petition. It is further stated that previously, these respondents/plaintiffs engaged the services of late Sri K.Srinivasa Rao advocate and he died recently before filing of the petition and so these respondents engaged Sri.P.Rama Rao, advocate who appeared on their behalf by filing vakalath on 12.2.2018, but since the counsel did not observe the dismissal of the suit against the 2nd defendant, he filed necessary petition to restore the suit against D2 and as such the petitioner cannot seek dismissal of the suit.

5. After hearing parties on both sides and considering the decisions cited, the trial Court dismissed the petition holding as per the decisions of the High Court and Supreme Court, after giving opportunity to both parties and after full-fledged trial, Court can decide the issue ‘Whether the suit for partition is maintainable or not for non-joinder of necessary parties?’ It further observed that Order I, Rule 9 CPC deals with the non-joinder of parties which is only procedural provision which does not effect substantive right and duties of the parties and that in the absence of necessary parties, a Court can pass any effective decree. It further observed that if the Court finds that the relief is legally justifiable, Court should grant the relief claimed by the plaintiff by passing decree between the parties actually before it so long as that can be done legally and effectively. Apart from that, the trial Court further observed that the defendant can plead non-joinder of necessary parties by the plaintiff in the written statement and it is not safe to dismiss the suit on the ground of non-joinder of necessary parties at the initial stage and that therefore, the Court was not inclined to decide without giving opportunity to both parties and without full-

fledged trial.

6. Having been aggrieved by the order, this revision petition is filed by the unsuccessful D1 contending the same as before the trial Court and further stating that the trial Court gravely erred in observing that the suit cannot be dismissed prior to commencement of the trial and that the contention of the petitioner has to be decided only after full- fledged trial, ignoring the fact that there is no dispute with regard to the dismissal of the suit against one of the co-

sharer i.e., D2. It is further contended that the trial Court erred in observing that the provision Order 1 Rule 9 CPC is only a procedural provision not effecting the substantive rights and duties of the parties, ignoring the decisions of the High Court and Supreme Court.

7. The learned counsel for the revision petitioner submitted the arguments reiterat