O.XXXII R.1: 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. If a suit is presented by a minor, without next friend, Rule 2
mandates that the plaint shall be taken off the file. This would not be equivalent to rejection of a plaint. If a plaint
is taken off the file, on account of there not being a next friend, the defect so noticed can be cured. Rejection of the
plaint, on the other hand, would terminate the suit, once for all, and the only remedy would be, to prefer a regular
appeal. In a given case, the minor may be represented by a guardian also. However, it is not mandatory.
posted 18 Sep 2011, 23:32 by advocatemmmohan Mandagaddi murali mohan
*THE HONBLE SRI JUSTICE L.NARASIMHA REDDY

+ A.S.No.490 of 2011
% 07-07-2011

# Kum. Vardhineedi
Sivani
t

And

$ Vardhineedi Narasimha Rao & others

..Respondents

..Appellan

!Counsel for the appellant: Sri K. Chidambaram

^Counsel for respondents . : Sri A.V. Seshasai

< Gist:

> Head Note:

Citations:

THE HONBLE MR JUSTICE L. NARASIMHA REDDY

A.S.No.490 of 2011
JUDGMENT:

This appeal is filed against the judgment and decree dated 30-07-2010 in O.S.No.112 of 2003 passed by the
Court of
VI Additional District Judge (Fast Track Court), Narsapur, West-Godavari District. The plaintiff is the appellant.

The plaintiff is a minor girl. She is the daughter of the

2nd respondent. The 2nd respondent obtained a decree of divorce against the mother of the appellant. The
suit was filed by her through her maternal uncle, as next friend, for the relief of partition and separate
possession of the suit schedule properties and allotment of 1/6 th share to her. It was pleaded that all the
items of suit schedule are joint family properties and being a coparcener, she is deemed to be in joint
possession of the properties.
It was alleged that the respondents 1 to 3 are trying to alienate the properties to her detriment. The
particulars of sale of certain items of property were incorporated in the plaint, by way of amendment.

The suit was contested by defendants 1 to 4 and 6. They raised a preliminary objection as to the

maintainability of the suit

on the ground that the appellant was not properly represented, much less any guardian was appointed. The
trial Court dismissed the suit on the ground that no guardian was appointed for the appellant herein.
Sri K. Chidambaram, learned counsel for the appellant submits that C.P.C. provides for presentation of a plaint
on behalf of a minor, through a next friend, and that in the instant case, the maternal uncle of the appellant
was shown as the next friend.
He contends that Order XXXII of C.P.C., provides for various stages, and once the plaint is presented through
the next friend, the trial Court has to undertake exercise of appointment of guardian for the purpose of the
suit. He submits that even if there was failure to file an application, as provided for under Rule 3 of Order
XXXII,
the Court could have insisted, on compliance with the provision; before proceeding further. Learned counsel
submits that the trial Court, could have at the most insisted on filing of an application for appointment of a
guardian or returned the plaint, and that there was no justification for dismissal of the suit.
Sri A.V. Seshasai, learned counsel for the contesting respondents, on the other hand, submits that when the
parents of the appellant are very much alive, the suit could have been filed through one of them, acting as
guardian, and that, if for any reason the natural parents cannot be appointed, an application ought to have
been made for appointing the maternal uncle as guardian. Learned counsel submits that a minor cannot
prosecute the remedies, unless she is properly represented, and that the trial Court has taken the correct
view of the matter.
There is no dispute that the appellant is minor. The suit filed by her through her maternal uncle was
numbered and summons were issued. Written-statement was filed opposing the suit. The trial Court, initially
framed two issues for consideration,viz.,
1.
Whether the plaint schedule properties are the joint family properties of the plaintiff and
defendants?
2.
Whether the plaintiff is entitled for partition of plaint schedule properties into six equal shares and
to allot her 1/6th share in her separate possession?

Later on, the following two additional issues were framed:

1.

Whether 6th defendant is proper and necessary party to this suit?

2.
Whether the guardian of the plaintiff is legally valid guardian in the suit proceedings and whether
he is entitled to file this suit as a representative of the plaintiff?

On behalf of the appellant, her next friend deposed as PW-1 and filed Exs.A-1 to A-9. On behalf of the
contesting respondents, DWs 1 to 3 were examined and Exs.B-1 to B-3 were filed. The trial Court dismissed
the suit by undertaking the discussion only upon additional issue No.2.
At the outset, this Court takes exception to the manner in which the additional issues were framed. The first
additional issue is meaningless. The question as to whether a particular person is proper or necessary party
arises in an application to implead him or when a person, who is a proper or necessary party is not impleaded
in the suit, to consider the effect of his absence, when the 6 th defendant is already a party, the issue is
superfluous.
So far as the second additional issue is concerned, what is needed in law is the presence of next friend, and
not guardian. Both when it framed additional issues and when it decided the suit, the trial Court failed to
maintain the distinction between the next friend, on the one hand, and guardian, on the other hand. These
expressions occur in Order XXXII C.P.C.
A minor is not capable of entering into the contract, much less to institute proceedings on his/her own
accord. However, it does not mean that the interests of the minors cannot be protected. Law permits the
proceedings to be instituted on their behalf through a person called as next friend. Rule 1 of Order XXXII

reads:

O.XXXII R.1: 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.

If a suit is presented by a minor, without next friend,

Rule 2 mandates that the plaint shall be taken off the file. This would not be equivalent to rejection of a
plaint. If a plaint is taken off the file, on account of there not being a next friend, the defect so noticed can be
cured. Rejection of the plaint, on the other hand, would terminate the suit, once for all, and the only remedy
would be, to prefer a regular appeal. In a given case, the minor may be represented by a guardian
also. However, it is not mandatory.
It is only when a minor figures as a defendant, that the Court would appoint a guardian for him. The concept
of the next friend does not exist, if the minor figures as defendant in a suit.
A detailed procedure is prescribed for appointment of a guardian for a minor, who is shown as a defendant in
the suit. The only exercise, which the Court can undertake in a suit, where it is filed by a minor through a
next friend, is that it can insist on furnishing of security by the next friend, for payment of all costs, incurred
or likely to be incurred by the defendant in such a suit. Rule 2A of Order XXXII reads as under:
Rule 2-A: 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.

In its application to the Madras High Court, which, in turn, applies to the State of Andhra Pradesh, the
qualifications to be possessed by persons, who are to be declared as next friend or guardian are
prescribed. The provisions read:
3. Qualifications to be a next friend or guardian.
(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 that person is not adverse
to that of the minor and that he is not in the case
of a
next friend, defendant, or in the case of a guardian for
the suit, a plaintiff.
(2)
Appointed or declared guardians to be preferred and to be superseded only for reasons recorded.
Where a minor has a guardian appointed or declared by competent authority no person other than the
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 minors welfare that another person be permitted to
act or be appointed, as the case may be.
(3)
Guardians to be appointed by Court.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 the minor.
(3A)
A person appointed under sub-rule (3) 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 proceeding in execution of a decree.
(4)

Appointment to be an application and where necessary after notice to proposed guardian.

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. The application, where it is by the plaintiff, shall set forth, in the order
of their suitability, a list of persons (with their full addresses for service of notice in Form No.11A set forth in
Appendix H. hereto) who are competent and qualified to act as guardian for the suit for the minor
defendant. The Court may, for reasons to be recorded in any particular case, exempt the applicant from
furnishing the list referred to above.

An elaborate and detailed procedure, to be followed in this regard is prescribed under sub-rules (5) to (11). It
is not necessary that the next friend must be a natural guardian or a close relation.
Rule 172 of Civil Rules of Practice mandates that wherever the plaintiff is a minor or is under disability, and it
is filed through next friend, the affidavit shall be filed by a disinterested person to the effect that the next
friend has no direct or indirect interest in the subject-matter of the suit. The provision reads as under:
Plaint or original petition on behalf of minor:--When a plaint or original petition is presented by a person as
the next friend of a plaintiff who is a minor or under disability, he shall at the same time file an affidavit by
some disinterested person that he has no interest, direct or indirect the subject-matter of the suit or matter,
adverse to that of the plaintiff that he is defendant or respondent in the suit or matter, and that he is a fit and
proper person to act as next friend.

In the instant case, the suit was filed through a next friend and there was compliance with Rule 1 of Order
XXXII to that effect.
In case the requirement as to furnishing of security under Rule 2A of Order XXXII, or filing of an affidavit under
Rule 172 of the Civil Rules of Practice was not fulfilled, the trial Court could certainly have insisted on the
necessary steps being taken. Unfortunately, it has proceeded on the assumption that the suit could not have
been filed, except through a guardian, and that when the natural parents are living, no other person could
have been appointed as a guardian. The whole approach of the trial Court was erroneous.

The next friend mentioned in Rule 1 of Order XXXII can act only as a person, representing the interests of the
minor. Beyond that, he does not have any power to put the interests of the minor at stake. To certain extent,
a guardian appointed by the Court, or a person who can act as guardian under law, would have some powers
to take certain decisions, for and on behalf of the minor, may be, in a limited scale and subject to control by
the Court.
The distinction between the next friend, on the one hand, and guardian, on the other hand, is broadly akin
to the one, between legal representative, on the one hand, and legal heir, on the other hand. The role of
legal representative in a proceeding is limited to the one of enabling the Court to conclude the proceedings,
in the event of the death of a party to the said proceedings. Legal heir, on the other hand, would inherit and
succeed to the estate of the predecessor, which cannot be limited to the dispute in the
proceedings. Similarly, next friend can do nothing more than keep the grievance of the minor before the
Court and seek adjudication, whereas the guardian can take certain decisions by himself in the interests of
the minor, before or after filing the suit.
It has already been mentioned that the suit was presented through a next friend. There was compliance with
Rule 1 of Order XXXII. The lapse if at all was, on the part of the trial Court, in not insisting on security being
furnished under Rule 2-A of Order XXXII, or affidavit under Rule 172 of Civil Rules of Practice. Assuming that
the lapse is on the part of the next friend, the maximum that the trial Court could have done was, to pass
orders, insisting on the steps being taken. When the only consequence that Order XXXII provides, in the
event of a suit being filed by a minor, without there being a next friend; is that the plaint be taken off the
file, dismissal of a suit, filed through a next friend; cannot even be imagined.
The society in general and the legislatures in particular take several steps, to protect the interests of the
minors. Special provisions are made and procedures are prescribed. On account of the totally untenable
view taken by the trial Court, the interests of the minor girl were subjected to jeopardy. The blame squarely
rests upon the trial Court, on the one hand, and the respondents, on the other hand.
The appeal is allowed with costs, quantified at Rs,10,000/- (Ten thousand), and the decree and judgment
passed by the trial Court is set aside. The matter is remanded to the trial Court for fresh consideration and
disposal. The appellant is accorded permission to comply with the requirements under Rule 2A of Order XXXII
C.P.C., and Rule 172 of the Civil Rules of Practice. In case the costs are not deposited or paid to the appellant,

to be spent for needs such as, books, clothing; within four weeks from the date on which the matter is listed
after remand, the defence of the respondents shall stand struck off.

_______________________
L. NARASIMHA REDDY, J.
Dt.07-07-2011.

Note:
LR copy to be marked.
(B/O)
KO