Sakthivrshani J S

BA LL.B(A)
9th semester

Explain the procedure to be followed in suits by or against minors?

Introduction:

The Code of Civil Procedure (CPC), 1908, is one such Act dealing with enforcing the civil
rights of the people from every section of society. Even the minors and lunatics, who were assumed
to have no voices of their own, were not excluded from availing such rights. They have been entitled
to special rights and protection under Order 32 of the CPC.

Order 32:

Order 32 (Rules 1 to 16) of the Code of Civil Procedure (CPC), 1908 deals with the “Suits by or
against minors and persons of unsound mind.”

 It describes the procedure that to be followed by minor or unsound mind persons while filing the
suits.
 It was generally assumed that minors and lunatics had no authority to institute a suit on the
ground that such persons lacked reason and understanding to participate in the proceedings.

Object:

 Protect the interest of minor.

 Proper representation in suit.
 Procedure for suits to be filed by or against minors or persons of unsound mind.

Definition:

Minor:

As per Section 3 of the Majority Act of 1875, a minor is a person who has not attained a
majority, that is, who has not attained the age of 18 years. But in the case of a minor for whose
person or property a guardian is appointed by the court or whose property is under the
superintendence of the court of wards, the age of attaining majority is 21 years.

Persons of unsound mind:

As per Section 12 of the Indian Contract Act, 1872, a person of sound mind is a person who
is capable of understanding and forming a rational judgment as to its effect on his/her interests.
Similarly, in Section 84 of the Indian Penal Code, 1860, a person of unsound mind is a person who,
by reason of unsoundness of mind, is not able to know the nature and consequence of his/her act,
whether it is right or wrong.

Orders 32 (Rule 1 - 16)

All acts which are for benefits of minors should be taken by -> Guardian appointed by the court ->
nothing should be prejudice by his own.
Suits by minor

 Every suit of the minor shall be instituted in his name by a person who in such suit shall be
called the next friend of the minor.
 Suit by minor should be instituted in the name of guardian or next friend.
 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.
 Such person can ask to furnish security for cost any time.

Suit against minor:

 Court shall appoint guardian to defendant such guardian can control throughout the case.

Next friend or Guardian:

Power / Duty / Liability of Guardian

 Every application should be made by him.

 Guardian shall not receive any property on behalf of minor - unless court leave.
 When guardian of suit is not appointed as guardian of the proporty - not furnish security.
 Guardian not enter into agreement / compromise (behalf of minor) without the leave of court.

Case: Dhirendra Kumar v. Sughandhi Bain.

Court has duty to ensure that guardian / Next friend can honestly exercise their discretionary
bonafide.

Rule 8 to 11

 If Next friend retired/ removal/ death

Fit person has to procured first

Put in his place

 The court shall remove Next friend/ Guardian if satisfies that

1. His interest is to adverse minor.

2. So connected with the opposite party.
3. Default in duty.
4. Move out of India - suit in pending.
5. Others sufficient cause.

 Suit is stayed if the person is retired/ removal/ death - untill the next person is appointed.
Minor attained Majority. Order 32 (Rule 12 - 14)

 When minor attained the majority he will proceed with the suit - apply to discharge of Next
friend/ guardian.
 Abondon the suit - apply for dismissal or repayment of cost to Guardian / next friend.
 Can also apply for dismissal when the suit is improper or unreasonable.

Conclusion:

Minors in the public sphere exist as unprotected or vulnerable entities, and they require the help of
their parents and guardians to survive and advance their interests in society. The legal institution is
well aware of this incapability of minors or other persons who, by reason of unsoundness of mind, or
any physical or mental infirmity, are not able to raise their voices for their protection of rights. Order
32 of the CPC specifically aspires to resolve this issue by entitling them with certain rights to sue or
appeal in court upon any violation of their civil rights. Rules 1 to 16 are exhaustive enough to deal
with the protection of such a vulnerable section of society.

CASE LAWS:

1. Budhilal v. Morarji (1907)

In this case, it was clear that a guardian appointed by the Hindu father in his will for his
minor son was not a guardian appointed by the ‘competent authority’ within the meaning of this rule.

2. Sham Singh v. Jaswant Singh (1970)

In this case it was stated by the Punjab and Haryana High Court that the principle behind
such removal is to safeguard and not prejudice the interest of the minor.

3. Sherija Bi v. Pillai (1976)

In this case, where the guardian was appointed based on the minority of the defendant and it
was later revealed that he was a major at the time of the institution of the suit but was deaf and dumb,
the appointment of a guardian was held invalid and the decree passed as void.

4. Dakeshur v. Rewat (1897)

In this case, it was held if a minor was sued without a guardian ad litem and a decree was
passed against him, the decree is null and void and cannot be enforced against him.

5. Amulya Ratan Mukherjee v. Kanak Nalini Ghosh (1950).

In this case, it was held that the decree passed against a lunatic, not properly represented, is
not binding on him and may be set aside by the court.