Code of Civil Procedure, 1908 (CPC)
Order XXXII CPC: Suits by Minors and Persons of Unsound Mind
A minor is a party to the suit but cannot conduct it, and the Code refuses both easy answers: it will not shut him out, and it will not let an adult litigate his rights unsupervised. Order XXXII of the Code of Civil Procedure, 1908 supplies two figures instead, a next friend when he sues and a guardian for the suit when he is sued, and then watches both, most strictly at the point where a settlement would bind him. These notes cover both tracks, who may act, removal and retirement, the compromise safeguard in Rule 7, and the application of the Order to persons of unsound mind.
The two tracks a minor's suit can take, and the single gate both must pass
1. The Minor as Plaintiff: The Next Friend
§ Order XXXII Rules 1 and 2, CPC 1908 (in substance) Rule 1. Every suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend of the minor. Rule 2(1). Where a suit is instituted 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. Rule 2(2). Notice of such an application shall be given to such person, and the court, after hearing his objections, shall make such order in the matter as it thinks fit. |
§ Four points on the next friend Each is regularly examined: • The minor is the party, not the next friend. The suit is instituted in the minor's name; the next friend is the person through whom it is conducted. The decree runs in the minor's favour or against him. • No court appointment is needed. Unlike a guardian for the suit, a next friend simply acts. The court's control comes afterwards, through removal under Rule 9 and the leave requirement in Rule 7. • The sanction for omitting him. Under Rule 2 the plaint may be taken off the file, and the costs fall on the pleader or the person who presented it, not on the minor. • Rule 2A: security for costs. Where a suit is instituted by a next friend, the court may, at any stage and for reasons to be recorded, order him to give security for the payment of all costs incurred or likely to be incurred by the defendant, and Order XXV applies to such an order. |
2. The Minor as Defendant: The Guardian for the Suit
§ Order XXXII Rule 3, CPC 1908 (in substance) (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, supported by an affidavit verifying the fact that the proposed guardian has no interest adverse to the minor and is a fit person to be so appointed. (3) No order shall be made 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, where there is no father, the mother, or where there is no father or mother, to other natural guardian, or, where there is none, to the person in whose care the minor is. (5) A person appointed under sub-rule (1) shall, unless his appointment is terminated, continue as such throughout all proceedings arising out of the suit, including execution, and any appeal or revision. |
Two differences from the next friend define this side of the Order. The guardian is appointed by the court, which must be satisfied of the minority and of the proposed guardian's fitness. And the appointment is durable: it continues through the whole life of the litigation, including execution and appeals, unless terminated. Note also Rule 4(4), under which the court may, where there is no other fit person willing to act, appoint one of its own officers to be guardian for the suit.
3. Who May Act, and Who May Not: Rule 4
§ Order XXXII Rule 4, CPC 1908 (in substance) (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 appointed. (3) No person shall without his consent in writing be appointed guardian for the suit. |
§ The disqualifications in short A person cannot act where: • His interest is adverse to the minor's. This is the central disqualification, and it is the ground on which most removal applications succeed. • He is a defendant, in the case of a next friend; or a plaintiff, in the case of a guardian for the suit. The opposite party cannot conduct the minor's side of the case. • A guardian appointed by a competent authority exists, and the court has not recorded reasons for permitting someone else to act in the minor's welfare. • He has not consented in writing, in the case of a guardian for the suit. No one is conscripted into the office. |
4. The Compromise Safeguard: Rule 7
§ Order XXXII Rule 7, CPC 1908 (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. (1A) An application for leave under sub-rule (1) shall be accompanied by an affidavit of the next friend or the guardian, as the case may be, and also, if the minor is represented by a pleader, by a certificate of the pleader, to the effect that the agreement or compromise proposed is, in his opinion, 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. |
§ Three things to note about sub-rule (2) It is voidable, not void. The transaction is not a nullity; it may be avoided, and until it is avoided it stands. It is voidable against all parties other than the minor. The asymmetry is deliberate: the minor may avoid it, and the other parties may not. A compromise that turns out well for him is not upset at the instance of the person who made it with him. Leave must be expressly recorded. A leave that is implied from the court's having passed a decree is not enough; the proceedings must show that the court applied its mind and granted leave, which is what sub-rule (1A) equips it to do through the affidavit and the pleader's certificate. Rule 7 works together with Order XXIII Rule 3B, which requires express leave after notice in every representative suit, and with Order XXIII Rule 3, under which the compromise is recorded and decreed. |
5. Retirement, Removal and the End of Minority
Rule | What it provides |
|---|---|
Rule 8 | 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; an application for the appointment of a new next friend requires an affidavit showing the fitness of the proposed person and that he has no adverse interest |
Rule 9 | Where the interest of the next friend becomes adverse to the minor, or where he is so connected with a defendant that it is unlikely the minor's interest will be properly protected, or where he does not do his duty, or during the pendency of the suit ceases to reside in India, the court may order his removal and the substitution of another |
Rule 10 | On the retirement, removal or death of a next friend, further proceedings are stayed until a new next friend is appointed; the defendant may apply for an order that the minor's next friend furnish security for costs or that another be appointed |
Rule 11 | A guardian for the suit may apply to be discharged, and the court may permit him to retire and appoint a fresh guardian; the court may also remove a guardian whose interest becomes adverse or who does not do his duty |
Rule 12 | A minor plaintiff or applicant, on attaining majority, must elect whether to proceed with the suit or application; if he elects to proceed, he applies for an order discharging the next friend and permitting him to proceed in his own name |
Rule 13 | Where he elects to abandon the suit, he applies for its dismissal on repayment of the costs incurred by the defendant, or which may have been paid by his next friend |
Rule 14 | A minor on attaining majority may apply to have a suit instituted in his name by a next friend dismissed on the ground that it was unreasonable or improper, and the court may award costs against the next friend |
Rule 15 | The provisions of the Order, so far as they relate to a minor, extend to persons of unsound mind and to persons who, though not so adjudged, are found by the court on inquiry to be incapable, by reason of unsoundness of mind or mental infirmity, of protecting their interests when suing or being sued |
6. Persons of Unsound Mind: Rule 15
§ How the Order applies to them Three propositions: • Adjudged and unadjudged alike. The Order extends both to persons adjudged to be of unsound mind and to persons who, though not so adjudged, are found by the court on inquiry to be incapable of protecting their interests. • Incapacity, not diagnosis, is the test. The words are incapable, by reason of unsoundness of mind or mental infirmity, of protecting their interests when suing or being sued. The question is functional: can this person conduct the litigation? • The court must inquire. Where the incapacity is not established by an adjudication, the court must satisfy itself on inquiry before treating a party as within the rule, since the consequence is that another person conducts his case for him. • Once the rule applies, the whole machinery follows: a next friend when he sues, a guardian for the suit when he is sued, the disqualifications in Rule 4, the removal provisions, and above all the leave requirement in Rule 7 before any compromise. |
7. Landmark Points
- Order XXXII Rule 1. A suit by a minor is instituted in his own name by a next friend; the minor is the party throughout.
- Order XXXII Rule 3. Where the defendant is a minor, the court appoints a proper person as guardian for the suit, on notice to his guardian or natural guardian, and the appointment continues through execution and appeal.
- Order XXXII Rule 4. The person acting must be of sound mind, a major, and without an interest adverse to the minor; a next friend cannot be a defendant, nor a guardian a plaintiff, and no guardian is appointed without his written consent.
- Order XXXII Rule 7. No agreement or compromise on a minor's behalf without the leave of the court expressly recorded, supported by an affidavit and, where he has a pleader, a certificate that it is for the minor's benefit.
- Order XXXII Rule 7(2). A compromise entered into without such leave is voidable against all parties other than the minor.
- Order XXXII Rules 9 and 11. Removal of a next friend or guardian whose interest becomes adverse or who does not do his duty.
- Order XXXII Rule 15. The Order extends to persons of unsound mind and to those found on inquiry to be incapable of protecting their interests.
8. Frequently Asked Questions
How does a minor sue?
In his own name, by a person called his next friend, under Order XXXII Rule 1. The minor remains the party; the next friend is the person through whom the suit is conducted, and no court appointment is required for him to act.
What happens if a suit is filed without a next friend?
Under Order XXXII Rule 2 the defendant may apply to have the plaint taken off the file, and the costs are borne by the pleader or other person who presented it, not by the minor.
How is a minor defended?
The court, on being satisfied of his minority, appoints a proper person as guardian for the suit under Rule 3, on an affidavit that the proposed guardian has no adverse interest and is fit. Notice must go to his appointed or natural guardian, and the appointment continues throughout the proceedings including execution and appeal.
Who cannot act as next friend or guardian?
A person whose interest is adverse to the minor's; a defendant, in the case of a next friend; a plaintiff, in the case of a guardian for the suit; and, where the minor has a guardian appointed by a competent authority, anyone else unless the court records reasons that it is for the minor's welfare. No guardian may be appointed without his consent in writing.
Can a next friend compromise a minor's suit?
Only with the leave of the court expressly recorded in the proceedings, under Order XXXII Rule 7, supported by his affidavit and, where the minor has a pleader, a certificate that the compromise is for the minor's benefit.
What is the effect of a compromise made without leave?
It is voidable against all parties other than the minor, under Rule 7(2). The asymmetry is deliberate: the minor may avoid it, but the other parties cannot, so a compromise that works out in his favour is not upset at their instance.
What happens when the minor attains majority?
Under Rule 12 he must elect whether to proceed. If he proceeds, he applies to discharge the next friend and continue in his own name; under Rule 13 he may instead apply for the suit to be dismissed on repayment of costs; and under Rule 14 he may apply to have a suit instituted on his behalf dismissed as unreasonable or improper, with costs against the next friend.
Does Order XXXII apply to persons of unsound mind?
Yes. Rule 15 extends the Order to persons adjudged to be of unsound mind and to persons who, though not so adjudged, are found by the court on inquiry to be incapable, by reason of unsoundness of mind or mental infirmity, of protecting their interests when suing or being sued.
9. Related Topics in This CPC Series
- Order XXXII-A: Suits Concerning Family Matters
- Compromise of a Suit under Order XXIII Rule 3
- Order XXXI: Suits by Trustees, Executors and Administrators
- Order XXV: Security for Costs