ORDER XXXII SUITS BY OR AGAINST MINORS AND PERSONS OF UNSOUND MIND - RULE 1, 2, 3, 4, 5, 6, 7, 8 OF CODE OF CIVIL PROCEDURE 1908

Can Minor to sue by next friend? Where suit is instituted without next friend, plaint to be taken off the file? Security to be furnished by next friend when so ordered, Should Guardian for the suit to be appointed by Court for minor defendant? Who may act as next friend or be appointed guardian for the suit? Representation of minor by next friend or guardian for the suit, Receipt by next friend or guardian for the suit of property under decree for minor, Agreement or compromise by next friend or guardian for the suit, Retirement of next friend? Rule 1, 2, 3, 4, 5, 6, 7 and 8 of Order XXXII of Code of Civil Procedure 1908

Minor to sue by next friend, Where suit is instituted without next friend, plaint to be taken off the file, Security to be furnished by next friend when so ordered, Guardian for the suit to be appointed by Court for minor defendant, Who may act as next friend or be appointed guardian for the suit, Representation of minor by next friend or guardian for the suit, Receipt by next friend or guardian for the suit of property under decree for minor, Agreement or compromise by next friend or guardian for the suit and Retirement of next friend are defined under Rule 1, 2, 3, 4, 5, 6, 7 and 8 of Order XXXII of Code of Civil Procedure 1908. Provisions under these Rules are:


 

Rule 1 Order XXXII of Code of Civil Procedure 1908 "Minor to sue by next friend"

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.

Explanation-In this Order, "minor" means a person who has not attained his majority within the meaning of section 3 of the Indian Majority Act, 1875 (9 of 1875) where the suit relates to any of the matters mentioned in clauses (a) and (b) of section 2 of that Act or to any other matter.

Rule 2 Order XXXII of Code of Civil Procedure 1908 "Where suit is instituted without next friend, plaint to be taken off the file"

(1) Where a suit is instituted by or behalf 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.

(2) Notice of such application shall be given to such person, and the Court, after hearing his objections (if any) may make such order in the matter as it thinks fit.

2A. Security to be furnished by next friend when so ordered

(1) Where a suit has been instituted on behalf of the minor by his next friend, the Court may, at any stage of the suit, either of its own motion or on the application of any defendant, and for reasons to be recorded, order the next friend to give security for the payment of all costs incurred or likely to be incurred by the defendant.

(2) Where such a suit is instituted by an indigent person, the security shall include the court-fees payable to the Government.

(3) The provisions of rule 2 of Order XXV shall, so far as may be, apply to a suit where the Court makes an order under this rule directing security to be furnished.

Rule 3 Order XXXII of Code of Civil Procedure 1908 "Guardian for the suit to be appointed by Court for minor defendant"

(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 monor or by the plaintiff.

(3) Such application shall be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in controversy in the suit adverse to that of the minor and that he is a fit person to be so appointed.

(4) Order shall be made on any application under this rule 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 or mother, to other natural guardian, of the minor, or, where there is no father, mother or other natural guardian, 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.

(4A) The Court may, in any case, if it thinks fit, issue notice under sub-rule (4) to the minor also.

(5) A person appointed under sub-rule (1) to be guardian for the suit for a minor shall, unless his appointment is terminated by retirement, removal or death, continue as such throughout all proceedings arising out of the suit including proceedings in any Appellate or Revisional Court and any proceedings in the execution of a decree.

Rule 3A Order XXXII of Code of Civil Procedure 1908 "Decree against minor not to be set aside unless prejudice has been caused to his interests"

(1) No decree passed against a minor shall be set aside merely on the ground that the next friend or guardian for the suit of the minor had an interest in the subject-matter of the suit adverse to that of the minor, but the fact that by reason of such adverse interest of the next friend or guardian for the suit, prejudice has been caused to the interests of the minor, shall be a ground for setting aside the decree.

(2) Nothing in this rule shall preclude the minor from obtaining any relief available under any law by reason of the misconduct or gross negligence on the part of the next friend or guardian for the suit resulting in prejudice to the interests of the minor.

Rule 4 Order XXXII of Code of Civil Procedure 1908 "Who may act as next friend or be appointed guardian for the suit"

(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, as the case may be.

(3) No person shall without his consent in writing be appointed guardian for the suit.

(4) Where there is no other person fit and willing to act as guardian for the suit, the Court may appoint any of its officers to be such guardian, and may direct that the costs to be incurred by such officer in the performance of his duties as such guardian shall be borne either by the parties or by any one or more of the parties to the suit, or out of any fund in Court in which the minor is interested or out of the property of the minor, and may give directions for the repayment or allowance of such costs as justice and the circumstances of the case may require.

Rule 5 Order XXXII of Code of Civil Procedure 1908 "Representation of minor by next friend or guardian for the suit"

(1) Every application to the Court on behalf of a minor, other than an application under rule 10, sub-rule (2), shall be made by his next friend or by his guardian for the suit.

(2) Every order made in a suit or on any application, before the Court in or by which a minor is in any way concerned or affected, without such minor being represented by a next friend or guardian for the suit, as the case may be, may be discharged, and, where the pleader of the party at whose instance such order was obtained knew, or might reasonably have known, the fact of such minority, with costs to be paid by such pleader.

Rule 6 Order XXXII of Code of Civil Procedure 1908 "Receipt by next friend or guardian for the suit of property under decree for minor"

(1) A next friend or guardian for the suit shall not, without the leave of the Court, receive any money or other movable property on behalf of a minor either-

(a) by way of compromise before decree or order, or

(b) under a decree or order in favour of the minor.

(2) Where the next friend or guardian for the suit has not been appointed or declared by competent authority to be guardian of the property of the minor, or, having been so appointed or declared, is under any disability known to the Court to receive the money or other movable property, the Court shall, if it grants him leave to receive the property, require such security and give such directions as will, in its opinion, sufficiently protect the property from waste. and ensure its proper application:

Provided that the Court may, for reasons to be recorded, dispense with such security while granting leave to the next friend or guardian for the suit to receive money or other movable property under a decree or order where such next friend or guardian-

(a) is the manager of a Hindu undivided family and the decree or order relates to the property business of the family; or

(b) is the parent of the minor.

Rule 7 Order XXXII of Code of Civil Procedure 1908 "Agreement or compromise by next friend or guardian for the suit"

(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 for the suit, as the case may be, and also, if the minor is represented by a pleader, by the certificate of the pleader, to the effect that the agreement or compromise proposed is, in his opinion, for the benefit of the minor :

Provided that the opinion so expressed, whether in the affidavit or in the certificate shall not preclude the Court from examining whether the agreement or compromise proposed is 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.

Rule 8 Order XXXII of Code of Civil Procedure 1908 "Retirement of next friend"

(1) Unless otherwise ordered by the Court, 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.

(2) The application for the appointment of a new next friend shall be supported by an affidavit showing the fitness of the person proposed and also that he has no interest adverse to that of the minor.

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