Order 32 of the Civil Procedure Code prescribes the procedure for suits where one of the party is minor or lunatic. The purpose of enacting this order was to ensure that the minor and unsound person is represented in suits and proceedings by a qualified person who can act on their behalf so that their interest is protected. An infant is considered to have immature intelligence and lack of judgement, so he is disabled from being bound by the law except when it is for his own benefit. As a general principle, the law treats the benefits of a minor on the same footing as that of an adult but prevents him from acting prejudicially to his own interest. It was held in Ram Chandra v. Man Singh that a decree passed against a minor or lunatic without the appointment of a guardian is null and is void, not merely voidable.
Rule 1 of the said order defines the term ‘minor’. A minor is a person who has not attained the age of 18 years. But in the case where the court has appointed a guardian or next friend to look after such minor or his property, or the property is under the monitoring of Court of Wards, the age of attaining majority will be 21 years (Section 3 of Indian Majority Act,1875).
Suits by minor
Rule 1Order 32 of the Civil Procedure Code states that every suit by a minor should be instituted in his name by the next friend or guardian. If it is not done in the same manner, then the plaint will be taken off (Rule 2). Rule 2A states that the Court may at any stage of the suit, on an application by the defendant or its own motion (suo moto) order the guardian or next friend to furnish security for the cost of the defendant. This rule is to prevent the filing of vexatious litigation in the name of a minor by his guardian or next friend.
Suits against minor
Rule 3 of Order 32 of Civil Procedure Code when a suit is instituted against a minor, the Court has to appoint a guardian to defend the suit on behalf of the minor. Such guardian shall continue throughout the whole proceedings including any appeal, revision and execution of decree unless he is terminated by removal, retirement or death.
Rule 4 answers the question as to who can be appointed as guardian.
Any person who has attained the age of majority and is of sound mind can act as a guardian or next friend of minor. Other conditions that need to be fulfilled are:
- He has no interest adverse to that of minor
- He is not the opposite party in a suit
- He has given his consent in writing for the same
In the absence of any fit or willing person to act as a guardian, the Court may appoint any of its officers to act as a guardian.
Powers and duties of a guardian or next friend (Rule 5-7)
No guardian or next friend can, without leave of Court:
- Receive any amount or movable property on behalf of minor by way of compromise
- Enter into an agreement or compromise on behalf of a minor
An application for leave of court should be accompanied by an affidavit of a guardian or next friend (in case the minor is represented by a pleader, the certificate of pleader) that such agreement or compromise is for the benefit of the minor. The Court may, at its discretion, examine whether the agreement or compromise is for the benefit of the minor.
An agreement or compromise entered into, without permission of the Court is voidable at the instance of a minor. The agreement will have no effect when avoided by a minor.
These rules 6 and 7 of Order 32 of Civil Procedure Code provide a safeguard to the minor’s interest against the hostile, negligent or collusive guardian or next friend, observed in Dokku Bhushayya v.
In Bushnudeo Narain v. Seogeni Rai, it was observed that the provisions of the Code are based on the general principle that the interest of the minor is of paramount consideration and therefore the Court must ensure that guardians and next friends are acting honestly and exercise their discretionary powers bona fide in the interest of the minor.
Retirement, removal or death of the guardian or next friend
Rule 8 states that a guardian or next friend cannot retire unless he is replaced by another fit person, who also has to furnish security for the costs already incurred by him. Rule 9 of Order 32 of the Civil Procedure Code states that a guardian or next friend can be removed by the Courts if it is found that:
- His interest is adverse to that of the minor
- He is connected with the opposite party due to which interest of minor may get affected
- He doesn’t discharge his duty properly
- He moves out of India, when the suit is still pending
- There is another sufficient justifiable cause
Where the guardian or next friend desires to retire or fails to discharge his duty or there is another sufficient justifiable cause, the Court may allow such person to retire or may remove him and also make such order for the costs incurred by him. Then the Court must appoint a new guardian or next friend for the minor (Rule 11)
According to Rule 10, after the retirement, removal or death of the guardian or next friend, the proceedings shall remain stayed until a new guardian or next friend is appointed.
Decree against minor
Rule 3-A explains the situation when a decree is passed against a minor. A decree passed against a minor without the appointment of a guardian or next friend is null and void. But a decree passed against a minor cannot be set aside or held illegal based on the fact that the guardian or next friend had an interest in the suit adverse to that of the minor. But if the minor has been prejudiced by such adverse interest of guardian, it can be a reasonable ground for setting aside the decree.
The minor is also entitled to any relief under any law for gross negligence or misconduct on the part of the guardian or next friend.
Minor attaining majority
On attaining the age of majority, a minor may:
- Proceed with the suit. He shall have to apply to the Court for the discharge of guardian or next friend and ask for permission to proceed with the suit in his own name (Rule 12)
- Abandon the suit and apply for its dismissal on repayment of costs to defendants or to his guardian or next friend, as the case may be (Rule 12)
- Repudiate the suit, if he is a co-plaintiff and applies to have his name struck off as co-plaintiff. If the Court is satisfied that he is not a necessary party, it may dismiss him from suit, but if he is a necessary party, then the Court may make him a defendant (Rule 13)
- Apply for dismissal of the suit on the ground that it was unreasonable or improper (Rule 14)
Person of unsound mind
This order is also applicable to the person of unsound mind or lunatics. (Rule 15 of Order 32 of Civil Procedure Code)