Suits by or against minors and persons of unsound mind

Suits by or against minors and persons of unsound mind

who in such suit shall be called the next friend of the minor.

3

[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.]

(1) 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.

1. Subs. by Act 104 of 1976, s. 78, for rule 10 (w.e.f. 1-2-1977).

2. Subs. by Act 2 of 1951, s. 3, for “the States”.

3. Ins. by Act 104 of 1976, s. 79 (w.e.f. 1-2-1977).

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(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.

1

(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.]

(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 minor 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 2*** to any guardian of

the minor appointed or declared by an authority competent in that behalf, or, where there is no such

guardian 3[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 guardian] of the minor, or, where there is 3[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.

1

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

4

[(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.]

1

(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 reasons 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.]

4. Who may act as next friend or he 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.

1. Ins. by Act 104 of 1976, s. 79 (w.e.f. 1-2-1977).

2. The words “to the minor and” omitted by s. 79, ibid. (w.e.f. 1-2-1977).

3. Subs. by s. 79, ibid., for certain words (w.e.f. 1-2-1977).

4. Ins. by Act 16 of 1937, s. 2.

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(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 1[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 1[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.

(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 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.

(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 :

1

[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 or

business of the family; or

(b) is the parent of the minor.]

(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.

1

[(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:

1. Ins. by Act 104 of 1976, s. 79 (w.e.f. 1-2-1977).

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without first procuring a fit person to be put in this 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.

(1) Where the interest of the next friend of a minor is adverse to that of the

minor or where he is so connected with a defendant whose interest is adverse to that of the minor as to make it

unlikely that the minor's interest will be properly protected by him, or where he does not do his duty, or,

during the pendency of the suit, ceases to reside within 1[India], or for any other sufficient cause, application,

may be made on behalf of the minor or by a defendant for his removal; and the Court, if satisfied of the

sufficiency of the cause assigned, may order the next friend to be removed accordingly, and make such other

order as to costs as it thinks fit.

(2) Where the next friend is not a guardian appointed or declared by an authority competent in this

behalf, and an application is made by a guardian so appointed or declared, who desires to be himself

appointed in the place of the next friend, the Court shall remove the next friend unless it considers, for

reasons to be recorded by it, that the guardian ought not to be appointed the next friend of the minor, and

shall thereupon appoint the applicant to be next friend in his place upon such terms as to the costs

already incurred in the suit as it thinks fit.

(1) On the retirement, removal or death of

the next friend of a minor, further proceedings shall be stayed until the appointment of a next friend in his

place.

(2) Where the pleader of such minor omits, within a reasonable time, to take steps to get a new next

friend appointed, any person interested in the minor or in the matter in issue may apply to the Court for

the appointment of one, and the Court may appoint such person as it thinks fit.

(1) Where the guardian for the suit

desires to retire or does not do his duty, or where other sufficient ground is made to appear, the Court

may permit such guardian to retire or may remove him, and may make such order as to costs as it thinks

fit.

(2) Where the guardian for the suit, retires, dies or is removed by the Court during the pendency of

the suit, the Court shall appoint a new guardian in his place.

(1) A minor

plaintiff or a minor not a party to a suit on whose behalf an application is pending shall, on attaining majority,

elect whether he will proceed with the suit or application.

(2) Where lie elects to proceed with the suit or application, he shall apply for an order discharging

the next friend and for leave to proceed in his own name.

(3) The title of the suit or application shall in such case be corrected so as to read henceforth thus:

“A.B., late a minor by C.D., his next friend, but now having attained majority.”.

(4) Where he elects to abandon the suit or application, he shall, if a sole plaintiff or sole applicant,

apply for an order to dismiss the suit or application on repayment of the costs incurred by the defendant

or opposite party or which may have been paid by his next friend.

(5) Any application under this rule may be made ex parte but no order discharging a next friend and

permitting a minor plaintiff to proceed in his own name shall be made without notice to the next friend.

(1) Where a minor

co-plaintiff on attaining majority desires to repudiate the suit, he shall apply to have his name struck out

as co-plaintiff; and the Court, if it finds that he is not a necessary party, shall dismiss him from the suit

on such terms as to costs or otherwise as it thinks fit.

1. Subs. by Act 2 of 1951, s. 3. for “the States”

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(2) Notice of the application shall be served on the next friend, on any co-plaintiff and on the defendant.

(3) The costs of all parties of such application, and of all or any proceedings theretofore had in the

suit, shall be paid by such persons as the Court directs.

(4) Where the applicant is a necessary party to the suit, the Court may direct him to be made a defendant.

(1) A minor on attaining majority may, if a sole plaintiff,

apply that a suit instituted in his name by his next friend be dismissed on the ground that it was

unreasonable or improper.

(2) Notice of the application shall be served on all the parties concerned; and the Court, upon being

satisfied of such unreasonableness or impropriety, may grant the application and order the next friend to

pay the costs of all parties in respect of the application and of anything done in the suit, or make such

other order as it thinks fit.

1

rule 2A) shall, so far as may be, apply to persons adjudged, before or during the pendency of the suit, to be of

unsound mind and shall also apply to persons who, though not so adjudged, are found by the Court on enquiry to

be incapable, by reason of any mental infirmity, of protecting their interest when suing being sued.]

2

(1) Nothing contained in this Order shall apply to the Ruler of a foreign 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.

(2) Nothing contained in this Order shall be construed as affecting or in any way derogating from the

provisions of any local law for the time being in force relating to suits by or against minors or by or

against lunatics or other persons of unsound mind.]

3

[ORDER XXXII-A

Suits relating to matters concerning the family

(1)The provisions of this Order shall apply to suits or proceedings

relating to matters concerning the family.

(2) In particular, and without prejudice to the generality of the provisions of sub-rule (1), the

provisions of this Order shall apply to the following suits or proceedings concerning the family,

namely:—

(a) a suit or proceeding for matrimonial relief, including a suit or proceedings for declaration as

to the validity of a marriage or as to the matrimonial status of any person;

(b) a suit or proceeding for a declaration as to legitimacy of any person;

(c) a suit or proceeding in relation to the guardianship of the person or the custody of any minor

or other member of the family, under a disability;

(d) a suit or proceeding for maintenance;

(e) a suit or proceeding as to the validity or effect of an adoption;

(f) a suit or proceeding, instituted by a member of the family, relating to wills, intestacy and

succession;

(g) a suit or proceeding relating to any other matter concerning the family in respect of which, the

parties are subject to their personal law.

(3) So much of this Order as relates to a matter provided for by a special law in respect of any suit or

proceeding shall not apply to that suit or proceeding.

1. Subs. by Act 104 of 1976, s. 79, for rule 15 (w.e.f. 1-2-1977).

2. Ins. by s. 79, ibid. (w.e.f. 1-2-1977).

3. Ins. by s. 80, ibid. (w.e.f. 1-2-1977).

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proceedings may be held in camera if the Court so desires and shall be so held if either party so desires.

(1) In every suit or proceeding to which this

Order applied, an endeavour shall be made by the Court in the first instance, where it is possible to do so

consistent with the nature and circumstances of the case, to assist the parties in arriving at a settlement. In

respect of the subject-matter of the suit.

(2) If, in any such suit or proceeding, at any stage it appears to the Court that there is a reasonable

possibility of a settlement between the parties, the Court may adjourn the proceeding for such period as it

thinks fit to enable attempts to be made to effect such a settlement.

(3) The power conferred by sub-rule (2) shall be in addition to, and not in derogation of, any other

power of the Court to adjourn the proceedings.

open to the Court to secure the services of such person (preferably a woman where available), whether

related to the parties or not, including a person professionally engaged in promoting the welfare of the

family as the Court may think fit, for the purpose of assisting the Court in discharging the functions

imposed by rule 3 of this Order.

duty of the Court to inquire, so far it reasonably can, into the facts alleged by the plaintiff and into any

facts alleged by the defendant.

as constituting a family, namely:—

(a)

(i) a man and his wife living together,

(ii) any child or children, being issue of theirs; or of such man or such wife,

(iii) any child or children being maintained by such man and wife;

(b) a man not having a wife or not living together with his wife, any child or children, being issue

of his, and any child or children being maintained by him;

(c) a women not having it husband or not living together with her husband, any child or children

being issue of hers, and any child or children being maintained by her;

(d) a man or woman and his or her brother, sister, ancestor or lineal descendant living with him or

her; and

(e) any combination of one or more of the groups specified in clause (a), clause (b), clause (c) or

clause (d) of this rule.

Explanation.—For the avoidance of doubts, it is hereby declared that the provisions of rule 6 shall be

without any prejudice to the concept of “family” in any personal law or in another law for the time being

in force.]