SUITS BY OR AGAINST MINORS AND LUNATICS: ORDER 32
Who is Minor for the purpose of order 32 CPC? Who are the persons of unsound mind upon whom order 32 applies? Discuss the nature, scope and object of the order 32 CPC prescribing procedure for the suits to which minors or persons of unsound mind are parties.
How can a suit be filled by the minor? What is the duty of the court when a suit is instituted against the minor?
Who can be appointed as Next friend? What are powers and duties of guardian or next friend? ( rules 5-7) When can a next friend or guardian be allowed to receive money or movable property on behalf of minor either by way of compromise before decree or order or under a decree in favour of the minor. When such next friend may be asked to deposit security for receiving such money or property and when requirement of security may be dispensed with. (R.6)
On what grounds a next friend may be removed? Who can apply for the removal of next friend? What would be the consequences of his removal? ( Rule 9, 10)
How can the Next Friend enter into any compromise during the pendency of suit?
Order 32 deals with the suits by or against Minors and persons of unsound mind.
OBJECT- The main object of the procedure adopted in Order 32 has been specially to protect the interests of minors and persons of unsound mind and to ensure that they are represented in suits or proceedings by persons who are qualified to act as such. Law regards such persons as of immature intelligence and discretion and therefore special protective procedure is being adopted under order 32. As a general principle the law treat all acts of an infant which are for his benefit on the same footing as those of an adult but will not permit him to do anything prejudicial to his own interests. Thus, a decree passed against a minor or a lunatic without following the procedure prescribed by order 32 CPC (appointment of a guardian) is a nullity and is void and not merely voidable. [Ram Chandra v. Man Singh, AIR 1968 SC 954]
MINOR: DEFINITION: --- According to Explanation to Rule 1 a minor means person who has not attained the age of majority within the meaning of section 3 of the Indian Majority Act, 1875 i.e. he has not attained the age of 18 years and in case of a minor of whose person or property a guardian or next friend has been appointed by a court, or whose property is under the superintendence of a Court of Wards, the age of majority is 21 years. [S. 3, Majority Act, 1875.]
WHO ARE THE PERSONS OF UNSOUND MIND? --- According to Rule 15, the persons who are adjudged, before or during the pendency of the suit to be of unsound mind or the persons who though not so adjudged, are found by the court on enquiry to be incapable, by reason of any mental infirmity, of protecting their interest when suing or being sued.
SUITS BY MINORS: RULES 1 TO 2-A
According to Rule 1, every suit by a minor should be instituted in his name by a person who in such suit shall be called the next friend of the minor. [R. 1.]Rule R 2 prescribes about the consequence of non- compliance of the procedure prescribed in Rule 1. Where a suit is instituted by or on behalf of a minor without a next friend, the defendant may apply to have the plaint taken off the file, with costs to be paid by the pleader or other person by whom it was presented.[R.2.]with a view to discourage vexatious litigation by guardians or next friends of minors Rule 2A, provides that where a suit has been instituted on behalf of the minor by his next friend, the Court may, at any stage of the suit, either of its own motion or on the application of any defendant, and for the reasons to be recorded, order the next friend to give security for the payment of all costs incurred or likely to be incurred by the defendant.
SUITS AGAINST MINORS: RULE 3
According to Rule 3, where a suit is instituted against a minori.e when he is defendant, the court should appoint a GUARDIAN adlitem to defend the suit. Such appointment should continue
throughout all the proceedings including an appeal or revision and in execution of a decree unless it is terminated by retirement, removal or death of such guardian. [R. 3.]
WHO MAY BE APPOINTED AS GUARDIAN OR NEXT- FRIEND? : RULE 4
According to Rule 4, any person who has ATTAINED MAJORITY AND IS OF SOUND MIND, may act as a guardian or next friend, provided his interest is not adverse to that of the minor, who is not the opposite partyin the suit (that he is not, in the case of a next friend, a defendant, or, in the case of a guardian for the suit, a plaintiff.) and who gives consent in writing to act as a guardian or next friend.
In the interest of a minor, however, the court may permit another person to act as the next friend or guardian of the minor.
In the absence of a fit and willing person to act as a guardian, the court may appoint any of its OFFICERS to be such guardian. [R.4.]
POWERS AND DUTIES OF GUARDIAN OR NEXT FRIEND: RULES 5-7
PROCEDURE IN CASE OF COMPROMISE----No guardian or a next friend can, without the leave
of the court,
(i) receive any amount or movable property on behalf of a minor by way of compromise, nor enter into any agreement or compromise on his behalf in the suit. An application for leave of the court should be accompanied by an affidavit of the next friend or guardian, and if the minor is represented by a pleader, with the certificate of the pleader that such compromise is, in his opinion, for the benefit of the minor. Such certificate or opinion expressed in the affidavit, however, cannot preclude the court from examining whether the agreement or compromise proposed is for the benefit of the minor. An agreement or compromise entered into without the leave of the court is voidable at the instance of the minor. Once such an agreement or compromise is avoided by a minor, it has no effect at all.
[Rr. 6 and 7; BishundeoNarainv. Seogeni Rai, AIR 1951 SC 280: 1951 SCR 548;
KaushalyaDevi v. BaijnathSayal, AIR 1961 SC 790 at p. 792: (1961) 3 SCR 769.]
Rules 6 and 7 are designed to safeguard the interests of a minor during the pendency of a suit against hostile, negligent or collusive acts of a next friend or guardian.[DokkuBhushmjyav. KatrngaddaRamnkrislmayya, AIR 1962 SC 1886 ]
They are based upon the general principle that infant litigants become wards of the court and the court has got the right and also the duty to see that the next friends or guardians act properly and bona fide in the interests of minors and that no suits are instituted or carried on by them for their own benefits only irrespective of the benefits of minors.
[Rangasayiv. Nagarathnamma, AIR 1933 Mad 890 at p. 911 (FB);
Dhirendra Kumar v. Sughandhi Bain, (1989) 1 SCC 85: AIR 1989 SC 147.]
Interest of infants of paramount consideration
The provisions of the Code have been based on the general principle that interest of infants is of paramount consideration. It is, therefore, the duty of the court to ensure that guardians and next friends act honestly and exercise their discretionary powers bona fide in the interests of minors.
Retirement, removal or death of guardian or next friend: Rides 8-11
A next friend or guardian of a minor cannot retire without first procuring a fit person for substituting him and giving security for the costs already incurred by him.[R.8.]
The court may remove a next friend or guardian of a minor, if it satisfied that
I. his interest is adverse to that of the minor; or
II. he is so connected with the opposite party that it is unlikely that the interest of the minor will be properly protected by him; or
III. he does not discharge his duty; or
IV. he ceases to stay in India during the pendency of the suit; or
V. there is any other sufficiently justifiable cause. [R. 9.]
Where the guardian or next friend of a minor desires to retire or fails to discharge his duty or
where there are other sufficiently justifiable grounds, the court may permit such guardian or next friend to retire or may remove him and may also make such order as to costs as it thinks fit. It should also appoint a new next friend or guardian.[R. 11.]
On retirement, removal or death of a guardian or next friend, further proceedings in the suit shall remain stayed until another guardian or next friend is appointed.[R. 10.]
MINOR ATTAINING MAJORITY: RULES 12-14
On attaining the age of majority, a minor plaintiff may adopt any of the following courses:
He may PROCEED with the suit. In that case he shall apply for an order discharging the next friend or guardian and for leave to proceed in his own name.[R. 12(1), (2), (3).]
He may ABANDON the suit and apply for its dismissal on repayment of costs to the defendant or to his guardian or next friend.[R. 12(4).]
He may apply for DISMISSAL of the suitoin the ground that it was unreasonable or improper.[R. 14.]
Where he 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, it may dismiss him from the suit. But if he is a necessary party, the Court may make him a defendant. [R. 13.]
Persons of unsound mind-- The provisions of Order 32 also apply to lunatics and persons of unsound mind.[R. 15 ]
DECREE AGAINST MINORS: Rule 3-A---
A decree passed against a minor without appointment of next friend or guardian is NULL AND VOID.
But a decree passed against a minor cannot be said to be illegal nor can be set aside only on the ground that the next friend or a guardian of the minor had an interest in the subject-matter of the suit adverse to that of the minor. If the minor is prejudiced by reason of adverse interest of the next friend or guardian, it can be made a ground for setting aside a decree.
The minor may also obtain appropriate relief for misconduct or gross negligence on the part of his next friend or guardian.
