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ORDER XXXII – Suits by or against Minors and Persons of Unsound Mind (Code of Civil Procedure, 1908)

 

1. Object and Scope of Order XXXII

Order XXXII embodies the principle of protective justice. Since minors and persons of unsound mind are legally incapable of safeguarding their interests, the Code ensures representation through responsible adults and judicial supervision at every procedural stage.

The provisions are mandatory in nature, and non-compliance may render proceedings voidable or illegal if prejudice is caused.

2. Meaning of “Minor”

As per the Explanation to Rule 1, a minor is a person who has not attained majority under Section 3 of the Indian Majority Act, 1875, depending upon:

  • Ordinary cases → Majority at 18 years

  • Where a guardian is appointed by court → Majority at 21 years

SUITS BY MINORS

3. Minor to Sue by Next Friend (Rule 1)

  • Every suit by a minor must be instituted in his own name, but through a “next friend.”

  • The next friend is not a party, but a representative for procedural purposes.

  • Object: To ensure the minor’s interests are actively and competently protected.

4. Suit Without Next Friend – Plaint to be Taken Off File (Rule 2)

  • If a suit is instituted without a next friend:

    • Defendant may apply for removal of plaint.

    • Costs are payable by the pleader or person presenting the plaint, not the minor.

  • Court must issue notice and hear objections before passing orders.

5. Security for Costs by Next Friend (Rule 2A)

The Court may order the next friend to furnish security for costs:

  • At any stage of the suit

  • On its own motion or defendant’s application

  • Reasons must be recorded

Special points:

  • If the minor sues as an indigent person, security includes court fees.

  • Provisions of Order XXV Rule 2 apply mutatis mutandis.

SUITS AGAINST MINORS

6. Appointment of Guardian for Minor Defendant (Rule 3)

  • Court must appoint a guardian for the suit upon satisfaction of minority.

  • Appointment may be sought:

    • By plaintiff, or

    • On behalf of the minor

Safeguards:

  • Application must be supported by an affidavit stating:

    • No adverse interest

    • Fitness of proposed guardian

  • Notice mandatory to:

    • Existing legal guardian, or

    • Father → Mother → Other natural guardian → Person in whose care the minor is

7. Continuity of Guardianship (Rule 3(5))

A guardian appointed for the suit:

  • Continues throughout:

    • Trial

    • Appeals

    • Revisions

    • Execution proceedings

  • Unless terminated by death, removal, or retirement

8. Decree Against Minor – When Set Aside (Rule 3A)

A decree against a minor:

  • Not set aside merely due to adverse interest of guardian

  • Must be shown that:

    • Prejudice was actually caused to minor’s interest

The minor may still claim relief for:

  • Misconduct

  • Gross negligence of guardian or next friend

WHO MAY ACT AS NEXT FRIEND / GUARDIAN

9. Eligibility and Disqualifications (Rule 4)

A person may act if:

  • Of sound mind

  • Has attained majority

  • Has no adverse interest

Disqualifications:

  • Defendant cannot be next friend

  • Plaintiff cannot be guardian for minor defendant

  • Consent in writing required for guardianship

If no suitable person is available:

  • Court may appoint its own officer

  • Costs may be paid:

    • By parties

    • From court fund

    • From minor’s property

REPRESENTATION AND PROCEDURAL SAFEGUARDS

10. Mandatory Representation (Rule 5)

  • Every application on behalf of a minor must be through:

    • Next friend, or

    • Guardian for the suit

Any order passed without proper representation:

  • Is liable to be discharged

  • Costs may be imposed on pleader who knew of minority

11. Receipt of Property or Money (Rule 6)

Next friend/guardian cannot receive money or property:

  • On compromise, or

  • Under decree
    Without court’s leave

Security is mandatory unless:

  • Guardian is parent, or

  • Manager of HUF and decree concerns family property

12. Compromise or Agreement (Rule 7)

  • No compromise without express leave of court

  • Application must be supported by:

    • Affidavit of next friend/guardian

    • Certificate of pleader stating benefit to minor

Effect:

  • Compromise without leave is voidable against all except minor

CONTROL OVER NEXT FRIEND / GUARDIAN

13. Retirement, Removal and Substitution (Rules 8–11)

Next Friend:

  • Cannot retire without:

    • Arranging substitute

    • Giving security for costs

Removal Grounds:

  • Adverse interest

  • Negligence

  • Non-residence in India

  • Any sufficient cause

Guardian for Suit:

  • Court may permit retirement or remove

  • New guardian must be appointed immediately

Proceedings are stayed until substitution is made.

MINOR ATTAINING MAJORITY

14. Election on Attaining Majority (Rule 12)

Minor may:

  1. Continue the suit

    • Discharge next friend

    • Proceed in own name

  2. Abandon the suit

    • Repay costs incurred

Suit title must be formally corrected.

15. Minor Co-Plaintiff Repudiating Suit (Rule 13)

  • May apply to strike out his name

  • Court decides whether:

    • Necessary party → made defendant

    • Not necessary → dismissed from suit

  • Costs decided by Court

16. Unreasonable or Improper Suit (Rule 14)

On attaining majority, minor may seek dismissal if:

  • Suit was unreasonable or improper

  • Court may order:

    • Next friend to pay costs

    • Any just order deemed fit

PERSONS OF UNSOUND MIND

17. Application to Persons of Unsound Mind (Rule 15)

Rules 1–14 (except Rule 2A) apply to:

  • Persons adjudged of unsound mind

  • Persons not formally adjudged but found incapable due to mental infirmity

Court must conduct judicial enquiry before applying the rules.

SAVINGS (Rule 16)

Order XXXII does not apply to:

  • Rulers of foreign States

  • Cases governed by special or local laws relating to minors or lunatics



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