INTRODUCTION
A legal system that bases itself in justice, equity and good conscience must have provisions to ensure that fair justice is meted out to all sections of citizens that come before it. Naturally, since all citizens are not equally placed, special provisions need to be made for some to ensure protection of their rights. Minors and Persons of Unsound Mind are persons that can be easily exploited due to their mental incapacity, anticipating that they might be cheated, ill-treated or trapped in a fraudulent device, there are several provisions to ensure their protection. Order XXXII of the Code of Civil Procedure, 1908 deals with SUITS BY OR AGAINST MINORS AND PERSONS OF UNSOUND MIND.
Order XXXII contains special provisions applicable only in cases where either the suit is:
1. To be instituted at the cause of a minor/person of unsound mind
2. To be instituted against a minor/person of unsound mind
In the Code of Civil Procedure, the main object behind the enactment is the protection of the interests of minors and persons of unsound mind. The origin behind this concern rests in Common Law. The Common Law position is that persons who are unable to understand the nature and consequences of their actions (of immature intelligence and discretion) ought not to be liable for their actions so undertaken.
Suits by or Against Minors and Persons of Unsound Mind Order 32
A legal system that bases itself in justice, equity and good conscience must have provisions to ensure that fair justice is meted out to all sections of citizens that come before it. Naturally, since all citizens are not equally placed, special provisions need to be made for some to ensure protection of their rights. Minors and Persons of Unsound Mind are persons that can be easily exploited due to their mental incapacity, anticipating that they might be cheated, ill-treated or trapped in a fraudulent device, there are several provisions to ensure their protection.
Order XXXII is one such provision which ensures that rights of such persons are protected. It contains a set of rules to apply to each case concerning minors and persons of unsound mind and has measures to ensure that such persons are protected not only against the opposite persons in the concerned case but also from adverse interests of their own guardian or next friend.
| Case Name | Citation | Relevance |
| Johri & Ors. V. Mahila Draupadi & Ors. | AIR 1991 MP 340( Gwalior Bench)
Judgment dated:- 25-10-1990 |
Bench:- S.K Dubey Provisions:- O.32 R. 1,4 of CPC 1908 Any person who is of sound mind and is not a minor and his interest is not adverse to that of a minor or lunatic plaintiff and is not an opposite party in the suit can act as next friend. Hence, the court held that it is not necessary to issue any notice to Draupati who was a defendant in the suit and a defendant can in no case be appointed as the next friend of the plaintiff. |
Order 32, Rule 1: Minor to sue by next friend
This provision provides that every suit by a minor should be instituted in his name by a next friend.The use of the term ‘shall’ implies that this is a mandatory requirement under the Code. The explanation further mentions that the term minor is to be understood as it is defined in the Indian Majority Act, 1875.
| Case Name | Citation | Relevance |
| Narain Singh V. Sapurna Kuer & Ors. | AIR 1968 Patna 318(V 55 C 93)
Judgment dated:- 31-7-1963 |
Bench:- H. Mahapathra
Provisions Involved:- O. 32 R 1, 3 of CPC 1908 The present Respondent No. 1 haven’t been a party in that Partition suit, cannot therefore be taken to have recognised the mother of Rameshwar Singh, Minor to be a competent guardian so as to dispose of the properties of the minor |
| Surendra Kumar & Another l, Applicants V. Rajendra Kumar Agarwal | AIR 1990 All 49
Judgment dated:- 17-7-1988 |
Bench:- A.N. Dikshita Provisions Involved:- O. 32 R. 1 The plaint has been signed by Shri. Virendra Kumar Goel and the verification of the plaint has also been done by him. There was no document on record which would have suggested that Virendra Kumar ha s a right to maintain the suit. The trial Court illegally erred in decreeing the suit and has in fact acted in the exercise of the Jurisdiction illegally and has committed material irregularity. |
Order 32, Rule 2: Where suit is instituted without next friend, plaint to be taken off the file
The requirements under Order 32, Rule 1 are mandatory and in case they are not followed- that is, where a suit is instituted by or on behalf of a minor without his next friend, the defendant in this suit may apply to have this plaint taken off the file- and the costs of this would be borne by the pleader or the person who presented the case.
| Case Name | Citation | Relevance |
| Keshav Deo Tulshan V. Jagadish Prasad Tulshan | AIR 1973 CALCUTTA 83 ( V 60 C 18)
Judgment dated:- 30-8-1971 |
Bench:- Ramendra Mohan Datta Provisions involved:- O. 32 R. 2, 5 It necessarily follows that the irregularity in instituting the suit does not make the suit wholly bad but makes it a defect in procedure. The only way it can be corrected is when the defendant majes an application under R.2 of O. 32. The decree in such circumstances does not become null and void |
Order 32, Sub-rule 2(2) provides that the notice of such application,as indicated in Order 32, Sub-rule 2(1), Once provided to the person in question, the said person may present his objections to the application (if any), and the court has the discretion to “make such an order as it thinks fit.”
Order 32, Rule 2A: Security to be furnished by the next friend, when so ordered
Where a suit has been instituted on behalf of the minor by his next friend, this provision provides that the Court has the discretion to order the next friend to give security for payment of all costs incurred or likely to be incurred by the defendant.This order could be at any stage of the suit, and either on its own motion or on the application of any defendant in the suit. The reasons for such an order by court requiring the next friend of the minor plaintiff to furnish security is to be recorded.
Order 32, Sub-rule 2A(2)
states that if such a suit has been instituted by an indigent person i.e. the next friend, then the security shall include the court fees payable to the government as well.
The term indigent here is as defined in Order 33, Rule 1 of the Code, and is as :-
- “When he is not possessed of sufficient means to enable him to pay the fee prescribed by the law for the plaint in the suit proposed to be instituted by him; or;
- Where no such fee is prescribed, when is not entitled to property worth rupees one thousand, other than the property exempt from attachment in execution of a decree and the subject-matter of the suit.”
Order 32, Rule 3: Guardian for the suit to be appointed by the Court for the minor defendant
The 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, to the mother, or where there is no father or mother, to other natural guardians] of the minor, or, where there is [no father, mother or other natural guardians], 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.
Once appointed as a next friend under sub-rule 1 of this Rule, the guardian shall continue to function as such until his appointment is terminated by his retirement or removal or death- in proceedings in any Appellate or Revisional Courts, including the execution of any decree.Critically, the provisions of Order 32, Rules 2-3 are mandatory. A decree passed against a minor in a suit in which he is not represented by a guardian ad litem is a nullity and it cannot be enforced against him.
| Case name | Citation | Relevance |
| Ram Chandra Arya v. Man Singh and another. | AIR 1968 SC 954
(V 55 C 189) From Allahabad: AIR 1962 ALL 512 |
J.C. SHAH, V. RAMASWAMI AND V. BHARGAVA JJ.
It was held that a decree passed against a minor or a lunatic without appointment of a guardian is a nullity and void, not merely voidable. |
| Naresh & Ors. V. Smt. Dauja & Ors. | AIR 2005 MADHYA PRADESH 45
Judgement dated:- 22-3-2004 |
Bench:- S. Samvastsar Provisions involved:- O 32 R. 3 The mother preferred an appeal describing herself as the guardiaj of the deceased minors which was dismissed on merits. Thus no prejudice is caused to the minors merely on account of death of natural guardian and by common appointment of fresh guardian ad litem. The said irregularity will not render the proceedings ab intio void. |
Order 32, Rule 3A: Decree against minor not to be set aside unless prejudice has been caused to his interests
This provision holds that no decree passed against a minor defendant will be set aside on the mere ground that the next friend or guardian ad litem for the suit had an interest in the subject matter of the suit, adverse to that of the minor. Sub-rule 3A(1) sets out the additional condition for such a decree to be set aside that prejudice must have been caused to the interests of the minor by the impugned adverse interest held by the guardian or next friend.
Sub-rule 3A(2) allows for the minor to obtain available reliefs in law against any misconduct or gross negligence on the part of the guardian or next friend resulting in prejudice to the interests of the minor in the suit. Given that what is meant by the term “prejudice to interests of the minor” is not explicitly set out, the other provisions and the facts of the particular case would determine how this provision be interpreted by a civil court.
| Case Name | Citation | Relevance |
| Gurpreet Singh V. Chatterbhuj Goel | AIR 1992 PUNJAB AND HARYANA 95
Judgement dated:- 29-4-1991 |
Bench:- G.C Mital, Actg. C.J and H.S Bedi, J Provisions involved:- O. 32 R. 3, 4 The Court is of the view that if an application is not made as provided by O.32 R.3, any Guardian who may have acted for the minor would not be clothed with the requisite authority to act as such. The consent that can be presumed is only if an application has been made and notice issued to the proposed guardian. The court is also of the view that the non- compliance with the mandatory provisions of O.32 R. 3, 4 of the Code makes the decree void and must also presume to have caused prejudice to the appellant. |
Order 32, Rule 4: Who may act as next friend or be appointed guardian for the suit
Where a minor has had a guardian ad litem or next friend appointed or declared by a competent authority, he is the only person who shall act as the next friend or be appointed guardian for the suit- unless, in the consideration of the court, another person should be appointed for the welfare of the minor.In case no other person is fit or willing to act as guardian for the suit, the court has the discretion to appoint one of its officers as the minor’s guardian.
| Case Name | Citation | Relevance |
| RB Mishra v. State, AIR 1983 Pat 250 | AIR 1983 Pat 250 | Bench : H L AGRAWAL, K B SINHA
The power of the person so assigned is limited to the proceedings for which he is recognised by the court. |
| Rup Chand v. Dasodha And Anr. | (1908) ILR 30 All 55 | The object behind having a next friend or guardian ad litem is that a minor is deemed to be incapable of defending himself and therefore it is imperative that his interests in the suits should be supervised by an adult person. This person, in case the minor is a plaintiff, is to be called the next friend and when the minor is a defendant, is called a guardian ad litem or guardian for the suit. However, neither the next friend nor guardian ad litem is a party to the suit. |
(O. 32 R. 5,6,7,8,9,10,11)
Provisions related to Next Friend/Guardian
Every suit by a minor should be instituted in his name through his guardian or next friend. If the same is not done, the plaint will be taken off the file . Any person who has attained majority and is of sound mind, may act as a guardian or next friend, provided his interest is not adverse to that of minor, who is not the opposite party in the suit and who gives consent in writing to act as a guardian or next friend.In the absence of a guardian who is fit and willing person to act as a guardian, the court may appoint any of its officers as guardian in that particular suit.
Provisions to ensure that interests of minors are safeguarded during the suit – Rule 5 of Order XXXII states that every representation made before the court other than under Rule 10(2) must be made by his next friend or guardian.Where an order is passed without such representation, the same may be discharged with.Further, by way of Rules 6 and 7, without the leave of the court, no guardian or next friend can.
Duty to Act in Best Interest of Minor:
As already stated in rule 4 any person complying with the qualifications under Rule 4 may become guardian or next friend. The guardian or next friend however, must ensure that he acts in the best interests of the minor or unsound person. A guardian must ensure that the discretionary powers exercised by him in his capacity as guardian including the employment/dismissal of legal counsel etc. must be in the best interests of the minor and not to advance his own cause or interests.
However, in certain cases it may be allowed for the guardian and the minor to have common interest in the suit. As in the case of Ranganathan Chettiar v. Perrkarriappa Chettiar where the mother was allowed to bring a suit concerning certain properties to be inherited by her and her minor son which had been wrongfully claimed by the brother of the deceased husband.
| Case Name | Citation | Relevance |
| Kaushalya Devi And Others v. Baijnath Sayal And Others. | AIR 1961 SC 790 | The guardian must apply for leave of the court in all of the above cases and the application must be accompanied with a pleaders certificate and affidavit. Any agreement entered into, without the leave of the court is voidable at the instance of the minor. |
| Dokku Bhushayya vs Katragadda Ramakrishnayya | AIR 1962 SC 1886 | Rules 6 and 7 have been designed in order to safeguard the interests of a minor during the pendency of a suit against hostile, negligent or collusive acts of next friend or guardian. |
| Thavva Rangasayi And Ors. vs Thavva Nagarathnamma | AIR 1933 Mad 890 | The principle these rules follow is that infant litigants become wards of court and therefore it becomes the duty of the court to ensure that guardians act properly and bona fide in the interests of the minor. |
| Ram Prakash & Ors. V. Lekh Ram & Ors. | AIR 1977 HIMACHAL PRADESH 89
judgement dated:- 4-8-1977 |
Bench:- R S Pathak, C.J
Relevant Provisions: R9 of Order 32 The Patna HC held that if the Court below was of the view that the interests of the next friend of the minor was adverse to that of the minor it should procees under R.9 of Order 32 of the Code, and cannot dismiss the suit. |
| Sarjeet Kaur vs Harbhajan Singh And Ors | AIR 2021 punj. & Har. 105
Judgement dated:- 4 May, 2021 |
Bench:- Hon’ble Mr. Justice Anil Kshetarpal
Even the application filed under order 32 rule 5 CPC for appointment of Guardian by Gurmukh Singh was dismissed as withdrawn. Even the suit filed by respondent No. 1 and 2 and by plaintiff No. 3 through Gurmukh Singh it is not maintainable, particularly, when no application under order 32 rule 5 CPC has been filed along with the suit seeking permission, either for appointment of Guardian of plaintiff No. 3 or for pursuing the suit on behalf of plaintiff No. 3.” |
| Maniranjan Samanta Kumar V. Brundabati Veergam | AIR 1969 ORISSA 52 ( V 66 C 21)
Judgement dated:- 15-2-1967 |
Bench:- G K Misra
The suit was decreed ex parte against the minor represented through Brundabatai in violation of the mandatory provision. The decree against the minor is a nullity and must be ignored by the court. |
The court may also remove a particular guardian or next friend if the court is satisfied that either
1. His interest is adverse to that of the minor in the concerned case
2. He is in such a standing as to be capable of colluding with the opposite party or is closely connected to the opposite party
3. He does not discharge his duty to the satisfaction of the court
4. He ceases to stay in India during the pendency of the suit and is therefore unable to look after the best interests of the minor
5. Any other sufficiently justifiable cause as the court may decide
When Minor attaining majority:
(Order 32, Rule 12, 13)
When a minor attains majority, he can choose either to proceed with a particular suit or to abandon it, if he had moved the court through a next friend/guardian.
- Where he elects to proceed with the suit – he must apply for an order from the court discharging the next friend or guardian and for leave to proceed with the suit in his own name.
- Where he elects to abandon the suit – he must apply for dismissal of suit on repayment of costs to defendant or next friend/guardian as the case may be.
- Where a minor co-plaintiff desires to repudiate the suit – he may repudiate the suit and apply to have his name as co-plaintiff stuck off. The court after examination of the circumstances may remove his name from the suit on finding that he is not a necessary party or may make him a defendant instead.
- Where minor desires that suit instituted in his name be dismissed on the ground that it was unreasonable/improper – he may by application move the court for dismissal on such grounds.
R.13– A minor being co-plaintiff desires to repudiate the suit, he is mandatorily required to make an application to have his name struck out and the court shall dismiss him from the suit on such terms as to costs or otherwise as it thinks fit.The applicant might be directed by the court to be made a defendant to the suit if the applicant is a necessary party to the suit.The notice must be served upon the next friend if any and on the defendant. Further, the costs of all parties of such application and of all or any proceedings shall be paid by those persons directed to do so by the court.
| Case Name | Citation | Relevance |
| Gopal Das V. Tej Singh | AIR 1996 Rajasthan 214
Judgement dated:- 6-2-1996 |
Bench:- R.R YADAV During the pendency of a suit or an appeal on behalf of a minor it is discovered that the minor had attained majority after institution of such suit or appeal then a Court is under legal obligation to call upon the minor if such minor was not present in Court direct him to be present in Court to ascertain his wishes as to whether he elects to proceed with the suit or an appeal or he elects to abandon it? If he elects to proceed with the suit or appeal the Court will proceed further and if he elects to abandon it then the suit or appeal is to be dismissed on repayment of the costs incurred by the defendant or opposite party or which may have been paid by his next friend. If there are more than one minor co plaintiff then the procedure contemplated under O. 32, R. 13 is to be followed. |
Order 32, Rule 14: Unreasonable or improper suit
According to this provision, a minor, who is the sole plaintiff in a suit, has the discretion to apply such that the suit instituted in his name by the next friend is dismissed on the ground that it was unreasonable or improper.Notice of such application must be served on all concerned parties and the court must be satisfied as to the unreasonableness or impropriety to grant the application and order the next friend to pay the costs of all parties or any other order as it thinks fit.
Order 32, Rule 15: Rules 1 to 14 (except rule 2A) to apply to persons of unsound mind
The present order functions to provide protection not only to minor persons but also to persons of unsound mind. Rule 15 states that all the protections and safeguards provided in Order 32 in Rules 1 to 14 such as the appointment of a guardian by the court in case of a minor defendant, or the prohibition to not sue for a minor plaintiff without a next friend, are all applicable for persons who have been adjudged to be of unsound mind before or during the pendency of the suit.
The provision also applies to those persons who have not been adjudged to be of unsound mind but have been found to be incapable due to mental infirmity by the court on inquiry. The only exceptional rule here is Rule 2A, which is the requirement for security to be furnished by the next friend when so ordered by the court.
| Case Name | Citation | Relevance |
| Marci Celine D’souza and another v. Renie Fernandez and others | AIR 1998 ker 280
Judgement dated 3.2.1998 |
Bench : D. Sreedevi The Court is not expected to conduct an elaborate enquiry under Order XXXII. Rule 15 of the Code of Civil Procedure. Before a next friend can represent a person incapable of protecting his rights it is not necessary that there should be a preliminary enquiry and a finding that person by reason of unsoundness of mind or mental infir mity is incapable of protecting his interests. All that is needed is that there must be some prima facie proof such as to satisfy the Court that the person was by reason of infirmity incapable of protecting his interest, because an order permit ting the next friend to represent such a person is not final. |
Order 32, Rule 16: Savings
This provision holds that this order shall not apply to the ruler of a foreign nation-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.Ostensibly, this provision would pertain to the former Indian princely states and legal matters arising thereto from heirs of the same.
Further, the provision states that nothing in this order would be construed as affecting or derogating (contradicting) provisions of the local law being in force relating to suits by or against minors or by against lunatics or other persons of unsound mind.
At glance
The present article, “Suits by or Against Minors and Persons of Unsound Mind: Order 32” will discuss Order 32 and all rules under the same, with reference to relevant case-law.
Order 32, Rules 1-16 provide for the appropriate procedures to be followed by minors who intend to institute a suit in civil court, by the use of a ‘next friend’ or a ‘guardian ad litem’ on behalf of a minor who has been made a defendant in any suit instituted by another person.
The term ‘minor’ for the purposes of the Code of Civil Procedure, 1908 (‘CPC’; ‘the Code’) refers to one who has not attained the age of majority according to Section 3 of the Indian Majority Act, 1875. Order 32 also provides for persons of unsound mind to sue and be sued.
Conclusion:
Order XXXII is another example of an exemplary legal framework which is part of a larger code and process of litigation that has been operating since the inception of the Code in 1908. The rules under the order have also been amended from time to time to ensure that relevance is maintained.
Situations such as fraud, collusion and adverse interest have been considered. The judicial opinion as to negligence of guardians have changed over time and is an interesting field where there is more scope to expand minor’s rights. However, Order XXXII is quite complete in its treatment of the legal problem on how to ensure fair representation of minors and persons of unsound mind.
Reference
1. Order XXXII : Suits by or against minors and persons of Unsound Mind
2. The Code of Civil Procedure, 1908 (5 of 1908)
3. Order XXXII, The Code of Civil Procedure
4. Manohar anr Chitaley, All India Reporter, Nagpur
5. Order XXXII
6. SARKAR , Code of Civil Procedure, 12th edition.
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Authored by:
Hareesh A – 2nd Yr Unitary LL.B, Kerala Law Academy Law College
Andrew Mathews – 3rd Yr B.B.A LL.B, Govt. Law College Thrissur
Mohammed Atheeque N – 3rd Yr B.B.A LL.B, Govt. Law College Thrissur
Jayasooryan G – 3rd Yr B.B.A LL.B, Bhavans PALSAR, Kozhikode
Author Bio
