Suits by or against minors or persons of unsound mind

 Suits by or against minors or persons of unsound mind

                                                               Suits by Minor through next friend[O. 32 R. 1]

                Suits relating to minors

                                                       Suit against minor through guardian ad-litem [O. 32 R. 3]

Order 32 lays down the procedure to be followed in cases by or against minors or lunatics. This provision has been enacted to protect the interest of minors and persons of unsound mind. Law presumes that minors and persons of unsound mind are not best judge of their  own interest, therefore, legislature comes to their protection. In this regard provisions for appointment of guardian and next friend are made A decree passed against a minor or lunatic without appointment of a guardian is a nullity and void. [Ram Chandra v. Man Singh, AIR 1968 SC 954]

Suit instituted by minor [Rule 3]: Order 32 Rule 1 provides that every suit by a minor shall be instituted in his name through his next friend. If the suit by a minor is not instituted through a next friend the plaint shall be taken off the file [Rule 2]. Rule 2-A provides that the court may order security to be furnished by next friend.

Suit against minor [Rule 3]: In a suit against a minor, the court shall appoint proper person to be guardian for the suit. He is called guardian ad-litem. Such appointment can be made either on the application of the minor or the plaintiff. Application must be supported by an affidavit and must state that proposed guardian has no interest in the controversy between the parties. Before making any order regarding appointment of guardian ad-litem the court will issue notice to:-

• Any guardian already appointed by competent authority, or
• Father, orите
• Mother; or
• Other natural guardian; or
• The person in whose care the minor is

Qualifications for appointment of next friend or guardian ad-litem

Rule 4 prescribes the following qualifications for appointment of next friend or guardian ad-litem

• He should be major;
• He should be of sound mind;
• He should not have an interest adverse to the minor;
• He must have given a written consent to act as such.

If the court cannot find any suitable person then the court may appoint any of its officers to be such guardian. The court will always consider and give paramount importance to the welfare of the minor.

Rights and liabilities of next friend or guardian ad litem

Rule 6 and 7 provide that the next friend or guardian shall not, without the leave of the court:-

(a) Receive any money or movable property on minor's behalf, by way of a compromise, before a decree or order or under a decree or order [Rule 6]

(b) Enter into any agreement or compromise . [Rule 7]

Any agreement or compromise recorded without Court's order shall be voidable against all parties other than minor.

Retirement of next friend [Rule 8]: It provides that unless otherwise ordered by the court a next friend shall not retire without procuring a fit person to be in his place and giving security for cost already incurred.

Removal of next-friend [Rule 9]: The Court may order the removal of the next-friend on the following grounds-

(a) If his interest is adverse to that of the minor or he is connected with the defendant having adverse interest;

(b) If he fails to do his duty;

(c) Ceases to reside in India during pendency of suit;

(d) Other sufficient cause;

(e) On the application for appointing another person by the appointed or declared guardian. [Rule 9 (2)] Application may be made in this behalf either by the minor or by the defendant.

Removal, retirement of guardian-ad-litem

Rule 11 provides the following grounds on which the guardian can be retire or be removed by the court:-

(a) he desires to be retired, or

(b) he is not doing his duty properly, or

(c) for other sufficient ground.

Where the guardian for the suit retires, dies or is removed by the Court during the pendency of the suit, the Court shall appoint a new guardian in his place.

Course to be adopted on attaining majority

Rules 12-14 provides that on attaining the majority, a minor plaintiff may adopt any of the following courses:

1. Proceed with the suit
2. Abandon the suit
3. Apply for dismissal of improper suit

1. Proceed with the suit: He may proceed with the suit by applying for an order discharging the next friend and for leave to proceed in this own name [Rule 12 (1)].

Notice is required to be given to such next friend before order of discharge is made [Rule 12 (5)].

2. Abandon the suit: He may abandon the suit and apply for its dismissal on repayment of costs to the defendant or to his next friend if he has already paid such costs [Rule 12 (4)).

3. Apply for dismissal of improper suit: Rule 14 allows a minor on attaining majority to apply for dismissal of suit instituted in his name by his next friend on the ground that it was unreasonable and improper. In such case, notice will be served on all parties and if application is granted, the court may order the next friend to pay the costs of all parties in respect of suit [Rule 14 (2)].

Course where he is co-plaintiff: Rule 13 provides that where minor is a co-plaintiff, he may repudiate the suit and may apply to have his name struck off as co-plaintiff. If the court finds that he is not a necessary party to the suit, it may dismiss him from the suit or otherwise it may make him the defendant. [Rule 13 (4)].