This article is written by Pragya Agrahari of Amity Law School, Lucknow. This article provides a detailed analysis of Rules 1-16 under Order 32 of the Code of Civil Procedure, 1908.
It has been published by Rachit Garg
The Indian Constitution is based on the principles of natural justice, that is, equity, justice, and good conscience. It advocates for equal rights and justice to be served to each and every section of society, irrespective of age, sex, religion, class, caste, gender, etc. The people of the unprivileged class are also not deprived of enjoying such rights. Moreover, it has provided necessary remedies, in the case of violation of such rights. Any person whose rights have been infringed can run to the court by filing suits or petitions to grant such rights.
The Code of Civil Procedure (CPC), 1908, is one such Act dealing with enforcing the civil rights of the people from every section of society. Even the minors and lunatics, who were assumed to have no voices of their own, were not excluded from availing such rights. They have been entitled to special rights and protection under Order 32 of the CPC. Here in this article, we have discussed each provision under this Order which equips such persons to defend their interests before a court of law.
What is Order 32 of the CPC
Order 32 (Rules 1 to 16) of the Code of Civil Procedure (CPC), 1908 deals with the “Suits by or against minors and persons of unsound mind.” It specifically prescribes the procedure for suits to be filed by or against minors or persons of unsound mind. In the early systems of law, it was generally assumed that minors and lunatics had no authority to institute a suit on the ground that such persons lacked reason and understanding to participate in the proceedings, but gradually it was realised that there is a need for such laws for the protection of the interests of such persons. Order 32 has been specially enacted to protect the interests of minors and persons of unsound mind to ensure that they are equally represented in civil suits or proceedings. Order 32 consists of a total of 16 rules, each describing the scope and nature of the rights and liabilities of the person party to the suits and proceedings.
Definition of minor and persons of unsound mind
As per Section 3 of the Majority Act of 1875, a minor is a person who has not attained a majority, that is, who has not attained the age of 18 years. But in the case of a minor for whose person or property a guardian is appointed by the court or whose property is under the superintendence of the court of wards, the age of attaining majority is 21 years. A deity is not a minor under this definition, and this Rule does not apply to the suits filed on behalf of or against the deity.
Persons of unsound mind:
Black’s Law Dictionary defines a ‘person of unsound mind’ as an adult who, from infirmity of mind, is incapable of managing himself or his affairs. As per Section 12 of the Indian Contract Act, 1872, a person of sound mind is a person who is capable of understanding and forming a rational judgment as to its effect on his/her interests. Similarly, in Section 84 of the Indian Penal Code, 1860, a person of unsound mind is a person who, by reason of unsoundness of mind, is not able to know the nature and consequence of his/her act, whether it is right or wrong.
Rule 1: Suit in the name of the next friend
Rule 1 of Order 32 provides that every suit shall be instituted in the name of the minor by the ‘next friend’ of the minor. The ‘next friend’ is any person who has attained majority and is in some way related to the minor so as to ascertain his/her interests. The ‘next friend’ will act on behalf of the minor in suits or proceedings before the court and, in a bonafide manner, represent his/her interests. This Rule creates a general principle in a suit in which the party is a minor or a person of unsound mind. In the case of the existence of a separate provision in the statute defining the rights and liabilities of the parties, it will take precedence over the general rule stated in this Order. Hence, in the case of Melabati Tea Estate v. Bhakta Munda (1964), where a minor workman makes a claim under some provision of the Industrial Disputes Act, 1947, he has to be represented by an officer of the trade union as per Section 36 of that Act and this Rule of Order 32 has no application to it.
In the case of State of Rajasthan v. R.D. Singh (1972), it was held that a minor suing through one next friend cannot sue through another next friend in another case, nor can he/she sue for the same cause after attaining a majority. However, the court is empowered to appoint a next friend during the pendency of the suit.
Concept of next friend
The rationale behind the representation of minors or persons of unsound mind through the next friend is that these persons are deemed incapable of prosecuting or defending their interests in the case, so it becomes necessary that their interests should be looked after by an adult to furnish justice to the minor or person of unsound mind. In the case of Rup Chand v. Dasodha (1908), it was clarified that the person representing the interests of a minor or person of unsound mind was not a party to the suit. His/her appointment as a ‘next friend’ was only for procedural purposes and limited to that proceeding for which he/she was recognised by the court.
Liability of a next friend
The ‘next friend’ does not only represent the interests of the minor or person of unsound mind but is also held responsible for other purposes. Where a suit brought by a minor through his next friend is dismissed by a court and it has emerged that the suit was not to the benefit of the minor, the court may direct the next friend personally to pay the costs. But if the court is convinced that there are reasonable grounds for instituting the suit and the next friend has acted in good faith, the court will not hold the next friend liable to pay the costs and will direct the costs to come out of the property of the minor. But the successful defendant is entitled to get his costs from the next friend irrespective of the question of whether the suit was for the benefit of the minor or not.
Where the question of the minority is in dispute
Minor suing as an adult
Where a minor brings a suit without a next friend and the other party was aware of his minority and did not object, and the minor attained a majority before the decree was passed, the decree is binding on all the parties. In the case of Fuli Bibi v. Khokai (1928), it was held that where a minor represents himself as a major and no next friend is appointed on his behalf, the suit will not fail on this ground.
Major claiming himself a minor
When a person is sued as a major and he claims himself to be a minor, it is up to the court to frame an issue for determination on the question of his minority and to appoint the next friend for the alleged minor.
Minor representing himself as major
Where a minor represents himself as a major and performs as a major while collecting rent, selling property, or executing a sale deed, he is estopped from again recovering rents or property by instituting a suit as a minor through his next friend. The reason behind doing this is that the court of equity will deprive the fraudulent minor of being benefited from the plea of a minority. But in the case where the purchaser or the other party was aware of his minority, he could not be said to have been deceived and the suit to set aside the sale would not then be barred (Mohori Bibee v. Dharmodas 1903).
Rule 2: Suit without the next friend
Rule 2 of Order 32 provides the procedure where the suit is instituted by the minor without the next friend. In this case, the defendant can apply for the plaint to be taken off the file by merely showing that the plaintiff is a minor and that the suit was filed without a next friend. This can happen in two cases:
- either the fact of the minority is apparent on the face of the plaint, or
- it is ascertained by the objection raised by the defendant and the inquiry by the court.
When the fact of the minority is clearly apparent, the practice is to take the plaint off the file, whereas in the case where the fact of the minority can be established after the finding of evidence in the court, the question of whether the minor has knowledge or intention to deceive is ascertained.
- In the case where the minor has knowledge or intention to deceive, the practice, according to the Bombay High Court is to direct the plaint to be taken off the file (Rattonbai v. Chabildas 1889) and according to the Calcutta High Court, the suit should be dismissed (Beni Ram Bhutt v. Ram Lal 1886). The difference between the two practices followed by the courts is that in case of dismissal of the suit, there lies the chance of appeal against the decree of the court but in case of a plaint taken off the file, there lies no appeal.
- In the case where the minor has no such knowledge or intention to deceive the court, the practice is to provide sufficient time to the minor to enable him/her to be represented by a next friend.
Payment of costs: When the suit is instituted by a minor without a next friend, the pleader or the person presenting the plaint is liable to pay the costs associated with that suit.
Rule 2A: Security to be furnished by the next friend
Rule 2A, vide sub-rule(1) of Order 32, provides that where the suit is instituted by the minor through his next friend, the Court may order the next friend, at any stage of the suit, to furnish the security for the payment of all the costs incurred or for the payment of the costs which are likely to be incurred. The object is to discourage vexatious or frivolous litigation by the next friend of the minor. In the case where the suit is instituted by an indigent person, this security will also include the court fees to be paid to the government (sub-rule 2). Moreover, sub-rule 3 states that Rule 2 of Order 25 also applies in this case. However, this Rule does not apply to the suit instituted by persons of unsound mind through their next friend.
Rule 3: Guardian is to be appointed for the minor defendant
The courts play the role of locus parentis (in the place of a parent) for their citizens who are unable to protect their rights and interests due to some infirmity or lack of adulthood. Thus, this rule mandates the court to dwell into the question of minority or unsoundness of mind of the person defending the suit and, upon such satisfaction, appoint a proper person as a ‘guardian ad litem (guardian for the suit)’ for the minor defendant (sub-rule 1). This appointed guardian will represent the minor defendant throughout the whole litigation. But the guardian ad litem is not a party to the suit or appeal. Moreover, the guardian ad litem does not automatically cease to function, the minor on attaining majority should take steps to discharge him.
In the case of Sherija Bi v. Pillai (1976), where the guardian was appointed based on the minority of the defendant and it was later revealed that he was a major at the time of the institution of the suit but was deaf and dumb, the appointment of a guardian was held invalid and the decree passed as void. Moreover, it is imperative for the court to appoint a guardian for the minor defendant. In the case of Dakeshur v. Rewat (1897), it was held if a minor was sued without a guardian ad litem and a decree was passed against him, the decree is null and void and cannot be enforced against him.
Application/notice for appointment
The court orders such an appointment upon the application made in the name or on behalf of the minor (sub-rule 2). This application must be accompanied by an affidavit declaring that the person proposed to be appointed as a guardian has no adverse interest in the matter before the court and that he is fit to be appointed as a guardian for the defendant minor(sub-rule 3). However, according to sub-rule 4, a competent authority can also give notice to the person to be appointed as a guardian ad litem on behalf of the minor. In the absence of such a guardian, the notice is given to the father or mother or natural guardian of the minor, and in their absence, to the person in whose care the minor was. The authorities also entertain any objection urged by the person on whom the notice is served.
The person so appointed as a guardian ad litem of the minor defendant shall represent the minor in all the proceedings unless he is terminated by removal, death or retirement (sub-rule 5).
Rule 3A: Decree against the minor not be set aside unless prejudice has been caused to his interests
This Rule lays down the mandate on the court to not set aside any decree passed against the minor merely for the reason of the next friend or guardian ad litem having an adverse interest in the subject matter of the suit (sub-rule 1). It is mandatory to show that the adverse interest of the next person or guardian ad litem has caused prejudice to the minor’s interests in order to set aside the decree. However, the minor is free to obtain any relief under the law against such next friend or guardian causing prejudice to his/her interests (sub-rule 2).
Rule 4: Conditions to be appointed as next friend or guardian ad litem
Rule 4 consists of various conditions which need to be fulfilled to be appointed as the next friend or guardian ad litem. There are mainly four conditions for a person to be appointed as the next friend or guardian ad litem (sub-rule 1):
- A person of sound mind,
- A person has attained a majority,
- A person has no adverse interest in the subject matter of the minor,
- A person is not a defendant in the case of the next friend or not a plaintiff in the case of guardian ad litem.
Guardian appointed by the competent authority
Where a person is declared or appointed by the competent authority as a next friend or guardian ad litem, only that person who is so declared is eligible to be appointed (sub-rule 2). However, another person may be permitted to be appointed by the court as the next friend or guardian ad litem in view of the minor’s welfare, but only in consideration of the reasons recorded. In the case of Budhilal v. Morarji (1907), it was clear that a guardian appointed by the Hindu father in his will for his minor son was not a guardian appointed by the ‘competent authority’ within the meaning of this rule.
Consent of guardian ad litem
This Rule limits the court’s discretion to appoint a guardian ad litem by stating that no person is competent to such an appointment without his/her consent (sub-rule 3). In the case of Chatter Singh v. Tej Singh (1920), the Allahabad High Court held that in a situation where the proposed guardian has not consented but remains silent, his consent will be presumed.
Officer of the court as guardian ad litem
Sub-rule(4) of Rule 4 provides that no one is fit or willing to act as a guardian ad litem, the court can appoint any of its officers as guardian ad litem. In doing so, the court must satisfy itself that such a person is fit for such an appointment and is the proper person to protect the interests of the minor. In such a case, the court may direct the costs incurred by the officer to be borne by the parties to the suit, out of the court’s fund, or out of the minor’s property.
Rule 5: Representation of minor by next friend or guardian ad litem
This Rule, vide sub-rule 1, provides that every application, except the application for a stay of proceedings after the removal of the next friend or the guardian ad litem under sub-rule(2) of Rule 10 of this Order, made to the court on behalf of the minor should be made by the next friend or the guardian ad litem.
Sub-rule 2 of this Rule contemplates the case where the minor is not represented by the next friend or the guardian ad litem. In this case, the court may discharge the order which anyway affects the minor in any event. Moreover, the pleader at whose instance such an order was passed, provided that he knew about the fact of the minority of the minor plaintiff, will furnish the costs to be paid to the court.
Rule 6: Receipt of property by next friend or guardian ad litem
This Rule, vide sub-rule 1, specifies that the next friend or the guardian ad litem should not receive any movable property or money on behalf of the minor, except with the leave of the court. It could be either by way of a compromise order or through an order or decree of the court in favour of the minor. This provision seeks to protect the assets of the minor in the suit. However, this rule is limited to money or movable property. In the case of Sarda Prasad v. Jumna Prasad (1961), where the order was for the delivery of possession of the immovable property, this rule would not apply.
In sub-rule(2) of this Rule, it is provided that where the next friend or the guardian ad litem was not appointed by the competent authority or had been appointed but due to any disability was not able to refuse the receipt of money or movable property, the court may allow him to receive such money or property. But the court may require it from him for the protection of the minor’s property from any wastage and may give directions to ensure its proper application.
However, the court allows the next friend or the guardian ad litem to receive the money or movable property without furnishing security in the following two cases when the next friend or the guardian ad litem is:
- The manager of Hindu divided family and order is concerned with the family business or property, or
- The parent of the minor.
Rule 7: Agreement or compromise by next friend or guardian ad litem
This Rule cautions the next friend or guardian ad litem to enter into any compromise or agreement on behalf of the minor in the suit without the permission or leave of the court (sub-rule 1). Any such agreement or compromise is voidable against all the parties, except the minor (sub-rule 2).
Application for grant of leave from the court
According to sub-rule 1A, in order to get a grant of leave from the court, the next friend or guardian ad litem is required to apply for the leave of the court. Such an application should be supplemented with an affidavit of the next friend or guardian ad litem and with the certificate of the pleader, in the case of the minor represented by the pleader, confirming that such agreement or compromise is for the benefit of the minor. However, the court is free to examine the question of whether such an agreement or compromise is for the benefit of the minor or not, in spite of the affidavit or certificate declaring so.
It provides the following steps to be taken before entering into a compromise:
- Application for the leave of the court,
- Affidavit showing that the compromise is for the benefit of the minor,
- Certificate by the pleader in the case of a minor represented by a pleader, that the agreement or compromise is for the benefit of the minor,
- Court granting the leave if it thinks fit,
- Consent of the next friend or guardian ad litem to the proposed agreement or compromise.
However, this Rule does not apply where such an agreement or compromise is not related to the rights of the parties claimed in a suit. The Supreme Court has held that the words ‘with reference to the suit’ indicate that it must limit the rights put at issue in the suit.
Rule 8-11: Retirement, removal or death of the next friend or guardian ad litem
Retirement of next friend
Rule 8 provides the procedure for the retirement of the next friend. It states that the next friend is not allowed to take retirement unless the following conditions are fulfilled:
- The court orders for such retirement (sub-rule 1),
- The next friend should procure any fit person to be appointed as his/her successor before such retirement (sub-rule 1),
- An application for the appointment of his/her successor should be accompanied by an affidavit expressing that the proposed person does not have any adverse interest in the minor (sub-rule 2).
Removal of next friend
Rule 9 provides the circumstances in which the next friend can be removed by the application made on behalf of the minor, by the defendant, or by the guardian. In the case of Sham Singh v. Jaswant Singh (1970), it was stated by the Punjab and Haryana High Court that the principle behind such removal is to safeguard and not prejudice the interest of the minor.
When the next friend is having an adverse interest in the minor (sub-rule 1)
In this case, the next friend is removed by the court on the application of the minor, when it emerges that he is having an adverse interest in the minor or he is so close to the defendant who has an adverse interest in the minor, due to which,
- he is not able to protect the interest of the minor, or
- ceases to be present in India during the pendency of the suit, or
- because of other reasons not being able to perform his duty.
The court, after being satisfied with the reasons stated, passed the order for the removal of the next friend.
When the next friend is not appointed by a competent authority (sub-rule 2)
In this case, the court orders the removal of the next friend who is not appointed or declared by the competent authority on the application of the person who is declared to be appointed as the next friend.
Stay of proceedings
Rule 10 states that upon the retirement, removal, or death of the next friend, the court should stay the further proceedings until the appointment of the new next friend(sub-rule 1). And in case there is a delay in finding the appropriate person to be appointed as the new next friend, any person can apply for such an appointment(sub-rule 2). The court will assess the fitness of the person applied for the appointment and will appoint such a person if it thinks fit. This Rule is attracted only when the death of the next friend is brought to the notice of the court, and where it is not done so, and the appeal was heard in the ignorance of such a fact, the decree passed is not a nullity (Gulabchand Nanulal v. Fulchand Hirachand 1959).
Retirement, removal or death of guardian ad litem
Rule 11 deals with the retirement, removal or death of a guardian ad litem and is similar to rules 8, 9 and 10, which are for the next friend. It provides that the court may allow the guardian ad litem to retire if he desires so and may remove him if he is not performing his duty well (sub-rule 1). Moreover, after such retirement, removal, or in the case of the death of a guardian ad litem, the court should appoint a new one in place of it (sub-rule 2).
Rule 12-13: Minor attaining majority
When during the pendency of the suit or appeal on behalf of the minor, the minor has attained majority, the court comes under the obligation to call for the minor and ascertain his/her wishes as to whether to proceed further with the suit or appeal (Rule 12). This whole process can be stated as follows:
- Firstly, it was ascertained whether the minor after attaining a majority, elect to proceed with the suit or not (sub-rule 1),
- If he/she wishes not to proceed, the suit or appeal will be dismissed by the court and an order for repayment of the costs will be delivered (sub-rule 4),
- If he/she wishes to proceed, an application for the discharge of the next friend is to be made so that he/she can proceed further in his own name (sub-rule 2),
- The title of the suit or application will be transformed as: “A, late a minor, by C, his next friend, but now having attained majority” (sub-rule 3),
- This application for the discharge of the next friend can be made ex-parte but no order for such discharge should be made without giving notice to the next friend (sub-rule 5).
In the case of a minor co-plaintiff attaining the majority
Rule 13, vide sub-rule 1, provides that when a minor co-plaintiff attains a majority and desires to repudiate the suit, the court may dismiss him from the suit if it thinks he is not a necessary party to the suit. The notice of such dismissal should be provided to the next friend, co-plaintiff in the suit, or the defendant (sub-rule 2). Moreover, the court may direct the parties to pay all the costs incurred during such proceedings (sub-rule 3). For this, the co-plaintiff has to make an application to strike out his name from the suit. But if the court thinks he is a necessary party to the suit, it may direct the party to be made a defendant (sub-rule 4).
Rule 14: Improper or unreasonable suit
This Rule, vide sub-rule 1, further provides rights to the minor sole plaintiff, upon the majority, to apply for dismissal of the suit instituted on his behalf on the ground that it was unreasonable or improper. In this instance, too, the notice should be served to all the parties, and the court may order the payment of all the costs by the parties (sub-rule 2).
Rule 15: Rules applicable to persons of unsound mind
This provision states that all these rules from 1 to 14, except rule 2A, provided specifically for minors, are also applicable to persons of unsound mind, so adjudged by the court. And it is also applicable in this case. They were not adjudged as of unsound mind, but after enquiry done by the court, it appears that they are suffering from mental infirmity due to which they were unable to protect their interests.
Rule 16: Application of the rules
This provision contains directions for the application of these rules under Order 32. It states that these rules do not apply to the ‘Ruler of a foreign state’ (sub-rule 1). Moreover, it was clarified that these rules in no way contradict the local laws providing for the protection of minors or persons of unsound mind (sub-rule 2).
Minors in the public sphere exist as unprotected or vulnerable entities, and they require the help of their parents and guardians to survive and advance their interests in society. The legal institution is well aware of this incapability of minors or other persons who, by reason of unsoundness of mind, or any physical or mental infirmity, are not able to raise their voices for their protection of rights. Order 32 of the CPC specifically aspires to resolve this issue by entitling them with certain rights to sue or appeal in court upon any violation of their civil rights. Rules 1 to 16 are exhaustive enough to deal with the protection of such a vulnerable section of society.
Frequently Asked Questions
Can a decree passed against a lunatic not properly represented be set aside by the court?
In the case of Amulya Ratan Mukherjee v. Kanak Nalini Ghosh (1950), it was held that the decree passed against a lunatic, not properly represented, is not binding on him and may be set aside by the court.
Is Order 32 applicable to deaf and mute persons?
In the case of In Re: Periaswami Goundan (1953), the Madras High Court has stated that the rules under Order 32 apply to a person who is deaf and dumb. The Honourable Justice opinionated, “Rule 15, Order 32 is intended to cover the case of persons who are absolutely deaf and dumb and on that account are incapable of receiving any communications or of communicating their wishes or thoughts to others.”
What is the difference between the guardian appointed under the Hindu Minority and Guardianship Act and the guardian appointed for the suit under the CPC?
Under Rule 4 of Order 32 of the CPC, the guardian for the suit can be anyone who is major, of sound mind, and does not have any adverse interest against the minor. Whereas for the purposes of the Hindu Minority and Guardianship Act, 1956, the guardian should be anyone enlisted in Section 4(b) of the Act. Moreover, the guardian or next friend appointed under Order 32 of the CPC is purely temporary in nature, that is, specifically for representing in a particular suit, unlike the guardian appointed under the Hindu Minority and Guardianship Act.
- Mulla, The Code of Civil Procedure, Sixteenth Edition (Solil Paul and Anupam Srivastava), Volume III, LexisNexis Butterworths.
- C.K.Takwani, Civil Procedure: Limitation and Commercial Courts, Ninth Edition, EBC Explorer.
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