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Suit by or against Minors in CPC

Updated: May 5


Suit against Minors in CPC

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A minor is defined as an individual who has not yet reached the age of 18 years. However, in the case of a minor whose person or property is under the guardianship or supervision of a court-appointed guardian, or whose property is under the jurisdiction of a Court of Wards, the age of majority is considered to be 21 years.


Order 32 of the Civil Procedure code (CPC) outlines the procedural guidelines for suits involving minors or individuals of unsound mind.


Object of Order 32 CPC


Order 32 is specifically designed to safeguard the rights of minors and individuals of unsound mind, ensuring that they are adequately represented in legal proceedings by qualified individuals.


In legal terms, an infant is considered to have immature intelligence and discretion, rendering them incapable of binding themselves except in cases where it is for their benefit. While the law generally treats acts performed by minors for their benefit similarly to those of adults, it prohibits them from taking actions that could be detrimental to their own interests.


Consequently, a decree issued against a minor or a person declared as of unsound mind without the appointment of a guardian is not just voidable but inherently void.


The provisions within Order 32 embody principles of natural justice, equity, and fairness by facilitating the prosecution or defence of litigation on behalf of minors, individuals of unsound mind, and those with mental infirmities.


Without such provisions, individuals with legal disabilities would be vulnerable to suffering adverse consequences.


In Ram Chandra v. Man Singh (AIR 1968 SC 954), the Supreme Court clarified that a decree issued against a minor or a person of unsound mind without the appointment of a guardian is not merely voidable but is inherently void.

 
 

Suit by Minors


Every suit initiated by a minor must be filed in their name through their appointed guardian or next friend. Failure to comply with this requirement will result in the plaint being removed from the file.


Additionally, if the minor is the plaintiff in the suit, the court has the authority to order their guardian or next friend, either upon the defendant's request or on its own initiative, to provide security for the defendant's costs. This provision is intended to discourage frivolous litigation initiated by guardians or next friends on behalf of minors.


Suit against Minors


When a suit is filed against a minor, the court is responsible for appointing a guardian ad litem to represent the minor's interests and defend the suit on their behalf.


This appointment should remain in effect for the duration of all legal proceedings, including any appeals, revisions, and the execution of a decree, unless it is terminated due to the retirement, removal, or death of the appointed guardian.


Guardian or Next Friend


According to Order 32, Rule 4, Civil Procedure Code(CPC) any individual who has reached the age of majority and possesses sound mental faculties may serve as a guardian or next friend, provided their interests do not conflict with those of the minor and the minor is not the opposing party in the suit.


Additionally, the individual must provide written consent to act as a guardian or next friend. However, if it is in the best interest of the minor, the court may allow someone else to serve as the next friend or guardian.


In cases where there is no suitable and willing person available to act as a guardian, the court has the authority to appoint one of its officers to fulfil this role.

 
 

Powers and Duties of Guardian or Next Friend


Order 32, Rules 5 to 7 establish certain restrictions and procedures regarding the actions of guardians or next friends representing minors in legal proceedings:


  • Rule 5 stipulates that no guardian or next friend can, without the court's permission, receive any sum of money or movable property on behalf of a minor through compromise, nor can they enter into any agreement or compromise on behalf of the minor in the suit. An application for court permission must be accompanied by an affidavit from the next friend or guardian, along with a certificate from the minor's lawyer indicating that the compromise is in the minor's best interest. However, the court retains the authority to evaluate whether the proposed agreement or compromise is truly beneficial to the minor. Any agreement or compromise made without court permission is voidable at the minor's discretion, and once avoided, it becomes entirely ineffective.


  • Rules 6 and 7 further emphasise that no next friend or guardian can, without court leave, accept money or property on behalf of the minor through compromise, either before or under a decree or order in favour of the minor, nor can they enter into any agreement or compromise related to the suit without court approval. The application for leave must include an affidavit from the next friend or guardian, along with a certificate from the minor's lawyer asserting that the compromise is in the minor's best interest. Again, the court has the authority to review whether the proposed compromise truly serves the minor's interests. Any compromise made without court permission is voidable against all parties except the minor, and once avoided by the minor, it becomes ineffective for all parties involved.


These rules aim to protect the interests of minors from potentially harmful actions by their guardians or next friends during legal proceedings.


They underscore the court's role in overseeing the actions of guardians or next friends to ensure they act in the best interests of the minors and not for their own personal gain.



Removal, Retirement or Death of Guardian or Next Friend


Order 32, Rules 8 to 11, Civil Procedure Code (CPC) outline the procedures and circumstances regarding the retirement, removal, or death of a guardian or next friend representing a minor in legal proceedings:


  • Rule 8 specifies that a next friend or guardian of a minor cannot retire without first securing a suitable replacement and providing security for the costs already incurred.


  • Rule 9 grants the court the authority to remove a next friend or guardian of a minor under several circumstances: if their interests conflict with those of the minor, if their connection with the opposing party undermines the protection of the minor's interests, if they fail to fulfil their duties, if they leave India during the suit, or for any other justifiable reason.


  • Rule 10 states that when a guardian or next friend wishes to retire, fails in their duties, or for other valid reasons, the court may permit their retirement or remove them. The court may also make decisions regarding costs and appoint a new guardian or next friend.


  • Rule 11 mandates that upon the retirement, removal, or death of a guardian or next friend, legal proceedings in the suit are suspended until a new guardian or next friend is appointed.


Minor attaining Majority


Order 32, Rules 12 to 14 outline the options available to a minor plaintiff upon reaching the age of majority:

  • Rule 12: The minor plaintiff may choose to continue with the suit. In this case, they must apply for an order to discharge the next friend or guardian and obtain permission to proceed in their own name.

  • Rule 13: Alternatively, the minor plaintiff may opt to abandon the suit and seek its dismissal. They may need to repay the costs incurred by the defendant or their guardian or next friend.

  • Rule 14: The minor plaintiff can also request the dismissal of the suit on the grounds of unreasonableness or impropriety.

  • Rule 14 (cont'd): If the minor plaintiff is a co-plaintiff in the suit, they have the option to disavow the suit and request to have their name removed as a co-plaintiff. If the court deems the minor plaintiff as not essential to the suit, they may dismiss them from the case. However, if the minor plaintiff is deemed necessary, the court may designate them as a defendant instead.

 
 


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