ORDER XXXII – Civil Procedure Code 1908

Civil Procedure Code 1908

 

 

ORDER XXXII. SUITS BY OR AGAINST MINORS AND PERSONS OF UNSOUND MIND

 

ORDER XXXII. SUITS BY OR AGAINST MINORS AND PERSONS OF UNSOUND MIND

 

1. Minor to sue by next friend

 

Every suit by a minor shall be instituted in his name by a person who in such shall be called the next friend of the minor.

 

1[Explanation-In this Order, “minor” means a person who has not attained his majority within the meaning of section 3 of the Indian Majority Act, 1875 (9 of 1875) where the suit relates to any of the matters mentioned in clauses (a) and (b) of section 2 of that Act or to any other matter.]

 

1. Ins. by Act 104 of 1976, sec. 79 (w.e.f. 1-2-1977).

 

HIGH COURT AMENDMENTS

 

Delhi.-Same as in Punjab.

 

Himachal Pradesh.-Same as in Punjab.

 

Punjab.-In Order XXXII, in rule 1, at the end, insert the following words, namely:-

 

“Such person may be ordered to pay any costs in the suit as if he were the plaintiff.”

 

[Vide Notification No. 2212-G, dated 12th May, 1909.]

 

2. Where suit is instituted without next friend, plaint to be taken off the file-

 

(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.

 

(2) Notice of such application shall be given to such person, and the Court, after hearing his objections (if any) may make such order in the matter as it thinks fit.

 

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

 

1[2A. Security to be furnished by next friend when so ordered

(1) 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.

 

(2) Where such a suit is instituted by an indigent person, the security shall include the court-fees payable to the Government.

 

(3) The provisions of rule 2 of Order XXV shall, so far as may be, apply to a suit where the Court makes an order under this rule directing security to be furnished.]

 

1. Ins. by Act 104 of 1976, sec. 79 (w.e.f. 1-2-1977).

 

3. Guardian for the suit to be appointed by Court for minor defendant-

 

(1) Where the defendant is a minor the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor.

 

(2) An order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff.

 

(3) Such application shall be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in controversy in the suit adverse to that of the minor and that he is a fit person to be so appointed.

 

(4) Order sha
ll be made on any application under this rule except upon notice to any 1*** to any guardian of the minor appointed or declared by an authority competent in that behalf, or, where there is no such guardian,

 

2[upon notice to the father or where there is no father, to the mother, or where there is no father or mother, to other natural guardian] of the minor, or, where there is 2[no father, mother or other natural guardian], to the person in whose care the minor is, and after hearing any objection which may be urged on behalf of any person served with notice under this sub-rule.

 

3[(4A) The Court may, in any case, if it thinks fit, issue notice under sub-rule (4) to the minor also.]

 

(5) A person appointed under sub-rule (1) to be guardian for the suit for a minor shall, unless his appointment is terminated by retirement, removal or death, continue as such throughout all proceedings arising out of the suit including proceedings in any Appellate or Revisional Court and any proceedings in the execution of a decree.

 

1. The words “to the minor and” omitted by Act No. 104 of 1976.

 

2. Subs. by Act No. 104 of 1976 for certain words (w.e.f. 1- 2-1977).

 

3. Ins. by Act No. 104 of 1976, (w.e.f. 1-2-1977).

 

HIGH COURT AMENDMENTS

 

Allahabad.-In Order XXXII, in rule 3,-

 

(a) in sub-rule (3), at the end, delete the full stop and insert the following words, namely:-

 

“and shall also contain the names and addresses of all probable guardians including any guardian of the minor appointed or declared by an authority competent in that behalf, or the father or the other natural guardian of the minor, or where there is no father or other natural guardian the person in whose care the minor is.”

 

(b) for sub-rule (4), substitute the following sub-rule, namely:-

“(4) The Court shall cause notice of such application to be served upon the minor as also upon all the probable guardians named in the application and such other persons as it may deem fit calling upon them to file objections, if any, to the appointment, etc. the proposed or any other probable guardian of the minor. In case any person himself desires to be appointed guardian of the minor instead of the proposed guardian, he shall furnish an affidavit verifying the fact he has no interest in the matters in controversy in the suit adverse to that of the minor and that he is a fit person to be so appointed.

 

The Court shall after hearing the objections, if any, and considering the respective claims of all persons desirous of being appointed guardian including the proposed guardian, such person as guardian appoint of the minor as it may deem fit.”

 

(c) in sub-rule (4) insert the following proviso, namely:-

 

“Provided that if the minor is under twelve years of age no such notice shall be issued to him.”

 

[Vide Notification No. 43 VIId-29, dated 1st June, 1957.]

 

Andhra Pradesh.-Same as in Madras.

 

Delhi.-Same as in Punjab.

 

Himachal Pradesh.-Same as in Punjab.

 

Karnataka.-In Order XXXII, for rule 3, substitute the following rule, namely:-

 

“3. (1) Same as sub-rule (1) of Madras with substitution of the words “or in the case of a guardian for the suit a plaintiff” by the words “in the suit or in the case of a guardian a plaintiff in the suit”.

 

(2) Same as sub-rule (2) of Madras with insertion of the words “in writing” after “for reasons to be recorded”.

 

(3) Same as sub-rule (3) of Madras with addition at the end of: “A person appointed as guardian under this sub-rule shall, unless his appointment is terminated by retirement or removal by the order of Court on application made for the purpose or by his death, continue throughout all proceedings in the suit or arising out of the suit including proceedings in any appeal or in revision and any proceedings in execution of a decree and the service of any processes in any such proceeding on the said guardian if duly made shall be deemed to be good service for the purpose of such proceedings. r

 

(4) Same as sub-rule (4) of Madras with the following modifications:-

 

(i) Before the words “set forth” insert “whether necessary”;

 

(ii) Omit the words within brackets and the last sentence.

 

(5) Same as sub-rule (5) of Madras.

 

(6) Same as sub-rule (6) of Madras with substitution of the word “party” for the words “plaintiff petitions”.

 

(7) No order shall be made on any application under sub-rule (4) above except upon notice to the minor and also to any guardian of the minor appointed or declared by an authority competent in that behalf, or where there is no such guardian upon notice to the father or natural guardian of the minor or where there is no father or natural guardian upon notice to the person in whose actual care the minor is and after hearing any objection which may be urged on behalf of any person so served with notice. The notice required by this sub-rule shall be served at least seven clear days before the day named in the notice for hearing of the application.

 

(8) Where none of the persons mentioned in the last preceding sub-rule is willing to act as guardian, the Court shall direct notice to other person or persons proposed for appointment as guardian either simultaneously to some or all of them or successively as it may consider convenient or desirable in the circumstances of the case. The Court shall appoint such person as it thinks proper from among those who have signified their consent and intimate the fact of such appointment to the person appointed by registered post unless he is present at the time of appointment either in person or by pleader.

 

(9) No person shall be appointed guardian for the suit without his consent and except in cases where an applicant himself prays for his appointment as guardian notices issued shall clearly require the party served to signify his consent or refusal to act as guardian.

 

(10) Same as sub-rule (10) of Madras with insertion of the words “or pleader” after the words “by that officer”.

 

(11) Same as sub-rule (11) of Madras.”

 

Kerala.-In Order XXXII, in rule 3,-

 

(i) substitute sub-rule (2) which is the same as sub-rule (4) of Madras.

 

(ii) in sub-rule (3), at the end, insert the following, namely:- ‘

 

“The affidavit shall further state the name of the person or persons on whom notice has to be served under the provisions of sub-rule (4).”

 

(iii) in sub-rule (4), insert the following proviso, namely:-

 

“Provided that if the minor is under 15 years of age no such notice shall be issued to him.” (w.e.f. 9-6-1959)

 

Madhya Pradesh.-In Order XXXII, for rule 3, substitute the following rule, namely:-

 

“3. Guardian for the suit to be appointed by Court for minor defendant:-(1
) Where the defendant is a minor, the Court, not being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit of such minor.

 

(2) A person appointed under sub-rule (1) to be guardian for the suit for a minor shall, unless his appointment is terminated by retirement, removal or death, continue as such throughout all proceeding arising out of the suit including proceedings in any appellate or revisional Court and any proceedings in the execution of a decree.” (w.e.f. 16-9-1960)

 

Madras.-In Order XXXII, for rules 3 and 4, substitute the following rules, namely:-

 

“3. Qualifications to be a next friend or guardian.-(1) Any person who is of sound mind and has attained majority may act as next friend of a minor or as his guardian for the suit:

 

Provided that the interest of that person is not adverse to that of the minor and that he is not in the case 6f a next friend, defendant, or in the case of a guardian for the suit, a plaintiff. ,.

 

(2) Appointed or declared guardians to be preferred and to be superseded only for reasons recorded.-Where a minor has a guardian appointed or declared by competent authority no person other than the guardian shall act as the next friend of the minor or be appointed his guardian for the suit unless the Court considers, for reasons to be recorded, that it is for the minor’s welfare that another person be permitted to act or be appointed, as the case may be.

 

(3) Guardians to be appointed by Court.-Where the defendant is a minor, the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for the minor.

 

(3A) A person appointed under sub-rule (3) to be guardian for the suit for a minor shall unless his appointment is terminated by retirement, removal or death continue as such throughout all proceedings arising out of the suit including proceedings in any appellate or revisional Court and any proceeding in execution of a decree.

 

(4) Appointment to be on application and where necessary after notice to proposed guardian.-An order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff. The application, where it is by the plaintiff, shall set forth, in the order of their suitability, a list of persons {with their full addresses for service of notice in Form No. 11A set forth in Appendix H. hereto) who are competent and qualified to act as guardian for the suit for the minor defendant. The Court may, for reasons to be recorded in any particular case, exempt the applicant from furnishing the list referred to above.

 

(5) Contents of affidavit in support of the application for appointment of guardian.- The application referred to in the above sub-rule whether made by the plaintiff or on behalf of the minor defendant shall be supported by an affidavit verifying the fact that the proposed guardian has not or that no one of the proposed guardians has any interest in the matters in controversy in the suit adverse to that of the minor and that the proposed guardian or guardians are fit persons to be so appointed.

 

The affidavit shall further state according to the circumstances of each case (a) particulars of any existing guardian appointed or declared by competent authority, (b) the name and address of the person, if any, who is the de facto guardian of the minor, (c) the names and addresses of persons, if any, who in the event of either the natural or the de facto guardian or the guardian appointed or declared by competent authority, not being permitted to act, are by reason of relationship or interest or otherwise, suitable persons to act as guardians for the minor for the
suit.

 

(6) Application for appointment of guardian to be separate from application for bringing on record the legal representatives of a deceased party.-An application for the appointment of a guardian for the suit of a minor shall not be combined with an application for bringing on record the legal representatives of a deceased plaintiff or defendant. The applications shall be by separate petitions.

 

(7) Notice of application to be given to persons interested in the minor defendant other than the proposed guardian.-No order shall be made on any application under sub-rule (4) above except upon notice to any guardian of the minor appointed or declared by an authority competent in that behalf or where there is no guardian, upon notice to the father or other natural guardian of the minor, or where there is no father or other natural guardian, to the person in whose care the minor is, and after hearing any objection which may be urged on behalf of any person served with notice under this sub-rule.

 

The notice required by this sub-rule shall be served six clear days before the day named in the notice for the hearing of the application and may be in Form No. 11 set forth in Appendix H hereto.

 

(8) Special provision to shorten delay in getting a guardian appointed.-Where the application is by the plaintiff, he shall, along with his application and affidavit referred to in sub-rules (4) and (5) above, produce the necessary forms in duplicate filled in to the extent that is possible at that stage, for the issue simultaneous of notices to two at least of the proposed guardians for the suit to be selected by the Court from the list referred to in sub-rule (4) above together with a duly stamped voucher indicating that the fees prescribed for service have been paid.

 

If one or more of the proposed guardians signify his or their consent to act, the Court shall appoint one of them and intimate the fact of such appointment to the person appointed by registered post. If no one of the persons served signifies his consent to act, the Court shall proceed to serve simultaneously another selected two, if so many there be, of the persons named in the list referred to in sub-rule (4) above but no fresh application under sub-rule (4) shall be deemed necessary. The applicant shall within three days of intimation of unwillingness by the first set of proposed guardians, pay the prescribed fee for service and produce the necessary forms duly filled in.

 

(9) No person shall be appointed guardian without his consent.-No person shall without his consent, be appointed guardian for the suit. Whenever an application is made proposing the name of a person as guardian for the suit a notice in Form No. 11 A set forth in Appendix H hereto shall be served on the proposed guardian, unless the applicant himself be the proposed guardian or the proposed guardian consents.

 

(10) Court guardian.-When to be appointed-How he is to be placed in funds.- Where the Court finds no person fit and willing to act as guardian for the suit, the Court may appoint any of its officers or a pleader of the Court to be the guardian and may direct that the costs to be incurred by that officer in the performance of the duties as guardian shall be borne either by the parties or by any one or more of the parties to the suit or out of any fund in Court in which the minor is interested, and may give directions for the repayment or allowance of the costs as justice and the circumstances of the case may require.

 

(11) Funds for a guardian other than Court guardian to defend.-When a guardian for the suit of a minor defendant is appointed and it is made to appear to the Court that the guardian is not in possession of any or sufficient funds for the conduct of the suit on behalf of the defendant and that the defendant will b
e prejudiced in his defence thereby, the Court may, from time to time, order the plaintiff to advance monies to the guardian for purpose of his defence and all monies so advanced shall form part of the costs of the plaintiff in the suit. The order shall direct that the guardians, as and when directed, shall file in Court an account of the monies so received by him.”

 

Punjab.-In Order XXXII, in rule 3, for sub-rules (3) and (4), substitute the following sub-rules, namely:-

 

“(3) The plaintiff shall file with his plaint a list of relatives of the minor and other persons, with their address, who prima facie are most likely to be capable of acting as guardian for the suit for a minor defendant. The list shall constitute an application by the plaintiff under sub-rule (2) above.

 

(4) The Court may at any time after institution of the suit call upon the plaintiff to furnish such a list, and in default of compliance, may reject the plaint.

 

(5) Any application for the appointment of a guardian for the suit and any list furnished under this rule shall be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in controversy in the suit adverse to that of the minor and that each person proposed is a fit person to be so appointed.

 

(6) No order shall be made on any application under this rule except upon notice to any guardian of the minor appointed or declared by an authority competent in that behalf, or, where there is no such guardian, upon notice to the father or other natural guardian of the minor or, where there is no father or other natural guardian, to the person in whose care the minor is, and after hearing any objection which may be urged on behalf of any person served with notice under this sub-rule:

 

Provided that the Court may, if it sees fit, issue notice to the minor also.”

 

[Vide Notification No. 95-G, dated 25th February, 1925 and Notification No. 566-G, dated 24th November, 1927.]

 

1[3A. Decree against minor to be set aside unless prejudice has been caused to his interests

 

(1) No decree passed against a minor shall be set aside merely on the ground that the next friend or guardian for the suit of the minor had an interest in the subject-matter of the suit adverse to that of the minor, but the fact that by reasons of such adverse interest of the next friend of guardian for the suit, prejudice has been caused to the interests of the minor, shall be a ground for setting aside the decree.

 

(2) Nothing in this rule shall preclude the minor from obtaining any relief available under any law by reason of the misconduct or gross negligence on the part of the next friend or guardian for the suit resulting in prejudice to the interests of the minor.]

 

1. Ins. by Act No. 104 of 1976, (w.e.f. 1-2-1977).

 

4. Who may act as next friend or be appointed guardian for the suit

 

(1) Any person who is of sound mind and has attained majority may act as next friend of a minor or as his guardian for the suit:

 

Provided that the interest of such person is not adverse to that of the minor and 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.

 

(2) Where a minor has a guardian appointed or declared by competent authority, no person other than such guardian shall act as the next friend of the minor or be appointed his guardian for the suit unless the Court considers, for reasons to be recorded, that it is for the minor’s welfare that another person be permitted to act or be appoi
nted, as the case may be.

(3) No person shall without his consent 1[in writing] be appointed guardian for the suit.

 

(4) Where there is no other person fit and willing to act as guardian for the suit, for Court may appoint any of its officers to be such guardian, and may direct that the costs to be incurred by such officer in the performance of his duties as such guardian shall be borne either by the parties or by any one or more of the parties to the suit, or out of any fund in Court in which the minor is interested 1[or out of the property of the minor], and may give directions for the repayment or allowance of such costs as justice and the circumstances of the case may require.

 

1. Ins. by Act No. 104 of 1976, (w.e.f. 1-2-1977).

 

HIGH COURT AMENDMENTS

 

Allahabad.-(a) In Order XXXII, for rule 4, substitute the following rule, namely:-

 

“4. (1) Where a minor has a guardian appointed or declared by competent authority no person other than such guardian shall act as next friend, except by leave of the Court.

 

(2) Subject to the provisions of sub-rule (1) any person who is of sound mind and has attained majority may act as next friend of a minor, unless the interest of such person is adverse to that of the minor, or he is a defendant, or the Court for other reasons to be recorded considers him unfit to act.

 

Every next friend shall, except as otherwise provided by clause (5) of this rule, be entitled to be reimbursed from the estate of the minor any expenses incurred by him while acting for the minor.

 

(4) The Court may, in its discretion, for reasons to be recorded, award costs of the suit, or compensation under section 35A or section 95 against the next friend personally as if he were a plaintiff,

 

(5) Costs or compensation awarded under clause (4) shall not be recoverable by the guardian from the estate of the minor, unless the decree expressly directs that they shall be so recoverable.”

 

[Vide Notification No. 4080/35 (a)-3(7), dated 24th July, 1926.]

(b) after rule 4, insert the following rule, namely:-

 

“4A.(1) Where a minor has a guardian appointed by competent authority no person other than such guardian shall be appointed his guardian for the suit unless the Court considers, for reasons to be recorded, that it is for the minor’s welfare that another person be appointed.

 

(2) Where there is no such guardian or where the Court considers that such guardian should not be appointed it shall appoint as guardian for the suit the natural guardian of the minor, if qualified, or where there is no such guardian the person in whose care the minor is, or any other suitable person who has notified the Court of his willingness to act or failing any such person, an officer of the Court.

 

Explanation.-An officer of the Court shall for the purposes of this sub-rule include a legal practitioner on the roll of the Court.”

 

Andhra Pradesh.-Same as in Madras.

 

Calcutta.-In Order XXXII, in rule 4, in sub-rule (4), for the words ‘Where there is no other person fit and willing to act as guardian for the suit”, substitute the words “Except as otherwise provided in this Order”.

 

[Vide Notification No. 8381-G, dated 13th June, 1927.]

 

Delhi.-Same as in Punjab.

 

Gauhati.-Same as in Calcutta.

 

Himachal Pradesh.-Same as in Punj
ab.

 

Karnataka.-In Order XXXII, omit rule 4. (w.e.f. 30-3-1967}

 

Kerala.-In Order XXXII, in rule 4,-

 

(i) in sub-rule (3), at the end, insert the following words, namely:-

 

“Whenever an application is made proposing the name of a person as a guardian for the result a notice in Form No. 11A set forth in Appendix H hereto shall be served on the proposed guardian, unless the applicant himself be the proposed guardian or the proposed guardian consents” (ii) in sub-rule (4), insert the following Explanation, namely:-

 

“Explanation.-An officer of the Court shall for the purpose of this sub-rule include a pleader of the Court.”

 

(iii) after sub-rule (4), insert the following sub-rule, namely:-

“(5) When a guardian for the suit of a minor defendant is appointed and it is made to appear to the Court that the guardian is not in possession of any or sufficient funds for the conduct of the suit on behalf of the defendant, and that the defendant will be prejudiced in his defence thereby, the Court may, from time to time, order the plaintiff to advance moneys to the guardian for the purpose of his defence and all moneys so advanced shall form part of the costs of the plaintiff in the suit. The order shall direct that the guardian, as and when directed, shall file in Court an account of the’ moneys so received by him.”

 

[Vide Notification No. 81-3312/58, dated 7th April, 1959.] ”

 

Madhya Pradesh.-In Order XXXII,-

 

(a) for rule 4, substitute the following rule, namely:-

 

“4. Who may act as next friend or guardian for the suit.-(1) Any person who is of sound mind and has attained majority may act as next friend of a minor or as his guardian for the suit:

 

Provided that the interest of such person is not adverse to that of the minor and 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.

 

(2) Where a minor has a guardian appointed or declared by competent authority, no person other than such guardian shall act as the next friend of the minor or as his guardian for the suit unless the Court considers, for reasons to be recorded, that it is for the minor’s welfare that another person be permitted to act in either capacity.”

 

(b) after rule 4, insert the following rule, namely:-

 

“4A. Procedure for appointment of guardian for the suit.-{1} No person except the guardian appointed or declared by competent authority, shall, without his consent, be appointed guardian for the suit.

 

(2) An order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff.

(3) Unless the Court is otherwise satisfied of the fact that the proposed guardian has no interest adverse to that of the minor in the matters in controversy in the suit and that he is a fit person to be so appointed, it shall require such application to be supported by an affidavit verifying the fact.

 

(4) No order shall be made on any application for the appointment as guardian for the suit of any person, other than a guardian of the minor appointed or declared by competent authority, except upon notice to the proposed guardian for the suit and to any guardian of the minor appointed or declared by competent authority, or, where there is no such guardian, the person in whose care the minor is, and after hearing, any objection that may be urged on a day to be specified in the notice. The Court may, in any case, if it thinks fit, issue not
ice to the minor also.

 

(5) Where, on or before the specified day, such guardian fails to appear and express his consent to act as guardian for the suit, or, where he is considered unfit, or disqualified under sub-rule (3), the Court may, in the absence of any other person fit and willing to act, appoint any of its ministerial officer, or a legal practitioner, to be guardian for the suit. If a legal practitioner is appointed guardian for the suit, the Court shall pass an order stating whether he is to conduct the case himself or engage another legal practitioner for the purpose.

 

(6) In any case in which there is a minor defendant, the Court may direct that a sufficient sum shall be deposited in Court by the plaintiff from which sum the expenses of the minor defendant in the suit including the expenses of a legal practitioner appointed guardian for the suit shall be paid. The costs so incurred by the plaintiff shall be adjusted in accordance with the final order passed in the suit in respect of costs.”

 

[Vide Notification No. 3409, dated 29th June, 1943.]

 

Madras.-In Order XXXII, omit rule 4.

 

Orissa.-Same as in Patna.

 

Patna.-In Order XXXII, in rule 4, in sub-rule (4), for the words “Where there is no other person fit and willing to act as guardian for the suit”, substitute the following words, namely:-

 

“Where the person whom the Court after hearing objections, if any, under sub-rule (4) of rule 3, proposes to appoint as guardian for the suit, fails, within, the time fixed in a notice to him to express his consent to be so appointed”.

 

Punjab.-In Order XXXII, in rule 4,~~

 

(a) after sub-rule (2), insert the following sub-rule, namely:-

“(2A) Where a minor defendant has no guardian appointed or declared by competent authority, the Court may, subject to the proviso to sub-rule (1), appoint as his guardian for the suit a relative of the minor.

 

If no person be available who is a relative of the minor the Court shall appoint one of the other defendants, if any and failing such other defendant, shall ordinarily proceed under sub-rule (4) of this rule to appoint one of its officers or a pleader.”

 

(b) [* * *]

 

(c) in sub-rule (4), after the words “any of its officers” insert the words “or a pleader” and for the words “such officer”, substitute the words “such persons”.

 

[Vide Notification No. 566-G, dated 24th November, 1927 as amended by Notification No. 209-R-XI-Y-3, dated 22nd July, 1936) and Notification No. 281-R-XI-Y-3, dated 19th September, 1936.]

 

5. Representation of minor by next friend or guardian for the suit

 

(1) Every application to the Court on behalf of a minor, other than an application under rule 10, sub-rule (2), shall be made by his next friend or by his guardian for the suit.

 

(2) Every order made in a suit or on any application, before the Court in or by which a minor is in any way concerned or affected, without such minor being represented by a next friend or guardian for the suit, as the case may be, may be discharged, and, where the pleader of the party at whose instance such order was obtained knew, or might reasonably have known, the fact of such minority, with costs to be paid by such pleader.

 

6. Receipt by next friend or guardian for the suit of property under decree for minor

 

(1) A next friend or guardian for the suit shall not, without the leave of the Court, receive any m
oney or other movable property on behalf of a minor either-

 

(a) by way of compromise before decree or order, or

 

(b) under a decree or order in favour of the minor.

 

(2) Where the next friend or guardian for the suit has not been appointed or declared by competent authority to be guardian of the property of the minor, or, having been so appointed or declared, is under any disability known to the Court to receive the money or other movable property, the Court shall, if it grants him leave to receive the property, require such security and give such directions as will, in its opinion, sufficiently protect the property from waste and ensure its proper application:

 

1[Provided that the Court may, for reasons to be recorded, dispense with such security while granting leave to the next friend or guardian for the suit to receive money or other movable property under a decree or order, where such next friend or guardian-

 

(a) is the manager of a Hindu undivided family and the decree or order relates to the property or business of the family; or

 

(b) is the parent of the minor.]

 

1. Ins. by Act No. 104 of 1976, sec. 79 (w.e.f. 1-2-1977).

 

7. Agreement or compromise by next friend or guardian for the suit

(1) No next friend or guardian for the suit shall, without the leave of the Court, expressly recorded in the proceedings, enter into any agreement or compromise on behalf of a minor with reference to the suit in which he acts as next friend or guardian.

 

1[(1A) An application for leave under sub-rule (1) shall be accompanied by an affidavit of the next friend of the guardian for the suit, as the case may be, and also, if the minor is represented by a pleader, by the certificate of the pleader, to the effect that the agreement or compromise proposed is, in his opinion, for the benefit of the minor:

 

Provided that the opinion so expressed, whether in the affidavit or in the certificate shall not preclude the Court from examining whether the agreement or compromise proposed is for the benefit of the minor.]

 

(2) Any such agreement or compromise entered into without the leave of the Court so recorded shall be voidable against all parties other than the minor.

 

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

 

HIGH COURT AMENDMENTS

 

Andhra Pradesh.-In Order XXXII, in rule 7, in sub-rule (2), at the end, insert the following proviso, namely:-

 

“Provided also that the Court may in its discretion dispense with such security and impose such other condition as it thinks fit, in case where it is satisfied that any money is needed for the maintenance, medical care or education of the minor and the guardian or next friend is unable to furnish security.”

 

[Vide Notification No. ROC 2756/56, B1, dated 5th December, 1959.]

 

Karnataka.-In Order XXXII, in rule 7, renumber sub-rule (2) as sub-rule (3) and insert the following sub-rule, namely:-

 

“(2) Where an application is made to the Court for leave to enter into an agreement or compromise or for withdrawal of a suit in pursuance of a compromise or for taking any other similar action on behalf of a minor or order person under disability, the affidavit in support of the application shall set out the manner in which the proposed compromise, agreement or other action is likely to affect the interests of the minor or other person under disability and the reason why such compromise,
agreement or other action is expected to be for the benefit of the minor or other person under disability; where in such a case the minor or other person under disability is represented by counsel or pleader, the said counsel or pleader shall also file into Court along with the application a certificate to the effect that the agreement or compromise or action proposed is in his opinion for the benefit of the minor or other person under disability.

 

If the Court grants leave under sub-rule (1) of this rule, the decree or order of the Court shall expressly recite the grant of the leave sought from the Court in respect of the compromise, agreement or other action as aforesaid after consideration of the affidavit and the certificate mentioned above and shall also set out either in the body of the decree itself or in a schedule annexed thereto the terms of the compromise or agreement or the particulars of the other action.” (w.e.f. 30-3-1967)

 

Kerala.-In Order XXXII, in rule 7, insert sub-rule (1A) as in Madras.

[Vide Notification No. Bl-3312/58, dated 7th April, 1959.]

 

Madras.-In Order XXXII, in rule 7, insert the following sub-rule, namely:-

 

“(1A) Where an application is made to the Court for leave to enter into an agreement or compromise or for withdrawal of a suit in pursuance of a compromise or for taking any other action on behalf of a minor or other person under disability and such minor or other person under disability is represented by counsel or pleader, the counsel or pleader shall file in court with the application a certificate to the effect that the agreement or compromise or action proposed is, in his opinion, for the benefit of the minor or other person under disability. A decree or order for the compromise of a suit, appeal or matter to which a minor or other person under disability is a party shall recite the sanction of the Court thereto and shall set out the terms of the compromise as in Form No. 24 in Appendix D to this Schedule.”

 

[Vide Dis No 1647 of 1910.]

 

8. Retirement of next friend

 

(1) Unless otherwise ordered by the Court, a next friend shall not retire without first procuring a fit person to be put in his place and giving security for the costs already incurred.

 

(2) The application for the appointment of a new next friend shall be supported by an affidavit showing the fitness of the person proposed and also that he has no interest adverse to that of the minor.

 

9. Removal of next friend

 

(1) Where the interest of the next friend of a minor is adverse to that of the minor or where he is so connected with a defendant whose interest is adverse to that of the minor as to make it unlikely that the minor’s interest will be properly protected by him, or where he does not do his duty, or during the pendency of the suit, ceases to reside within India or for any other sufficient cause, application may be made on behalf of the minor or by a defendant for his removal; and the Court, if satisfied of the sufficiency of the cause assigned, may order the next friend to be removed accordingly, and make such other order as to costs as it thinks fit.

 

(2) Where the next friend is not a guardian appointed or declared by an authority competent in this behalf, and an application is made by a guardian so appointed or declared, who desires to be himself appointed in the place of the next friend, the Court shall remove that next friend unless it considers, for reasons to be recorded by it, that the guardian ought not to be appointed the next friend of the minor and shall thereupon appoint the applicant to be next friend in his place upon such terms as to the costs
already incurred in the suit as it thinks fit.

 

10. Stay of proceedings on removal, etc., of next friend

 

(1) On the retirement, removal or death of the next friend of a minor, further proceedings shall be stayed until the appointment of a next friend in his place.

 

(2) Where the pleader of such minor omits, within a reasonable time, to take steps to get a new friend appointed, any person interested in the minor or in the matter in issue may apply to the Court for the appointment of one, and the Court may appoint such person as it thinks fit.

 

11. Retirement, removal or death of guardian for the suit

 

(1) Where the guardian for the suit desire to retire or does not do his duty, or where there sufficient ground is made to appear, the Court may permit such guardian to retire or may remove him, and may make such order as to costs as it thinks fit.

 

(2) 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.

HIGH COURT AMENDMENT

 

Allahabad.-In Order XXXII, in rule 11,-

(i) in sub-rule (1), at the end, omit the words “and may make such order as to costs as it thinks fit”; (ii) in sub-rule (1), insert the following proviso, namely:-

 

“Provided that where the guardian desires to retire without reasonable cause the Court shall, while permitting him to retire, direct that he shall pay the cost to be incurred in the appointment of a fresh guardian.”

 

[Vide Notification No. 43/VII-d 29, dated 1st June, 1957.]

 

12. Course to be followed by minor plaintiff or applicant on attaining majority

 

(1) A minor plaintiff or a minor not a party to a suit on whose behalf an application is pending shall, on attaining majority, elect whether he will proceed with the suit or application.

 

(2) Where he elects to proceed with the suit or application, he shall apply for an order discharging the next friend and for leave to proceed in his own name.

 

(3) The title of the suit or application shall in such case be corrected so as to read henceforth thus:

 

“A.B., late a minor, by C.D., his next friend, but now having attained majority.”

 

(4) Where he elects to abandon the suit or application, he shall, if a sole plaintiff or sole applicant, apply for an order to dismiss the suit or application on repayment of the costs incurred by the defendant or opposite party or which may have been paid by his next friend.

 

(5) Any application under this rule may be made exparte but no order discharging a next friend and permitting a minor plaintiff to proceed in his own name shall be made without notice to the next friend.

 

13. Where minor co-plaintiff attaining, majority desires to repudiate suit-

 

(1) Where a minor co-plaintiff on attaining majority desires to repudiate the suit, he shall apply to have his name struck out as co-plaintiff; and the Court, if it finds that he is not a necessary party shall dismiss him from the suit on such terms as to costs or otherwise as it thinks fit.

 

(2) Notice of the application shall be served on the next friend, on any co-plaintiff and on the defendant.

 

(3) The costs of all parties of such application, and of all or any proceedings therefore had in the suit, shall be paid by such persons as the Court directs.

 

(4) Where the applicant is a necessary party to the suit, the Court may direct him to be made a defendant.

 

14. Unreasonable or improper suit

 

(1) A minor on attaining majority may, if a sole plaintiff, apply that a suit instituted in his name by his next friend be dismissed on the ground that it was unreasonable or improper.

 

(2) Notice of the application shall be served on all the parties concerned; and the Court, upon being satisfied of such unreasonableness or impropriety, grant the application and order the next friend to pay the costs of all parties in respect of the application and of anything done in the suit, or make such other order as it thinks fit.

 

HIGH COURT AMENDMENTS

 

Andhra Pradesh.-Same as in Madras.

 

Karnataka.-In Order XXXII, after rule 14, insert the following rule, namely:-

 

“14A. When a minor defendant attains majority either he or the guardian appointed for him in the suit or the plaintiff may apply to the Court to declare the said defendant a major and to discharge the guardian and notice thereof shall be given to such among them as are not applicants. When the Court by order declares said defendant as major it shall by the same order discharge the guardian and thereafter the suit shall be proceeded with against the said defendant as a major.” (w.e.f. 30-3-1967)

 

Kerala.-In Order XXXII, after rule 14, insert rule 14A which is same as in Madras with the following modifications:-

 

(i) add the following as marginal note:-

 

“Appointment or discharge of a next friend or guardian for the son of a minor to be performed by Registrar”,

 

(ii) omit the following words:-

 

“shall be deemed to be a quasi-judicial act within the meaning of section 128 (2) (i) of the Code of Civil Procedure and”.

 

[Vide Notification No. Bl-3312/58, dated 7th April, 1959.]

 

Madras.-In Order XXXII, after rule 14, insert the following rule, namely:-

 

“14A. The appointment or discharge of a next friend or guardian for the suit of a minor in a matter pending before the High Court in its appellate jurisdiction, except in cases under appeal to the [Supreme Court], shall be deemed to be a quasi-judicial act within the meaning of section 128 (2) (i) of the Code of Civil Procedure and may be performed by the Registrar, provided that contested applications and applications presented out of time shall be posted before a Judge for disposal.”

 

[Vide Dis No. 1601 of 1914.]

 

1[15. Rules 1 to 14 (except rule 2A) to apply to persons of unsound mind

 

Rules 1 to 14 (except rule 2A) shall, so far as may be, apply to persons adjudged, before or during the pendency of the suit, to be of unsound mind and shall also apply to persons who, though not so adjudged, are found by the Court on enquiry to be incapable, by reason of any mental infirmity, or protecting their interest when suing or being sued.]

 

1. Subs. by Act 104 of 1976 for rule 15 (w.e.f. 1-2-1977)

 

1[16. Savings

 

(1) Nothing contained in this Order shall apply to the Ruler of a foreign State suing or being sued in the name of his State, or being sued by the direction of the Central Government in the name of an agent or in any other name.

 

(2) Nothing contained in this Order
shall construed as affecting or in any way derogating from the provisions of any local law for the time being in force relating to suits by or against minors or by against lunatics or other persons of unsound mind.]

 

1. Subs. by Act 104 of 1976 for rule 16 (w.e.f. 1-2-1977)

 

HIGH COURT AMENDMENTS

 

Andhra Pradesh.-Same as in Madras.

 

[Vide Notification No. ROC No. 6842/51-B 1, dated 9th August, 1957.]

 

Madras.-In Order XXXII, after rule 16, insert the following rule, namely:-

 

“17. In suits relating to the person or property of a minor or other person under the superintendence of the Court of Wards the Court in fixing the day for the defendant to appear and answer shall allow not less than two months “time between the date of summons and the date for appearance.”

 

[Vide Dis No. 644 of 1941].

 

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