ARTICLE
Gracy Singh
16th Nov 2023
SUITS BY OR AGAINST MINORS AND PERSON OF UNSOUND MIND UNDER CPC
1.INTRODUCTION:-
A legal system that bases itself in justice, equity and good conscience must have provisions to ensure that fair justice is meted out to all sections of citizens that come before it. Naturally, since all citizens are not equally placed, special provisions need to be made for some to ensure protection of their rights. Minors and Persons of Unsound Mind are persons that can be easily exploited due to their mental incapacity, anticipating that they might be cheated, ill-treated or trapped in a fraudulent device, there are several provisions to ensure their protection.
Order XII is one such provisions which ensures that rights of such persons are protected. It contains a set of rules to apply to each case concerning minors and persons of unsound mind and has measures to ensure that such persons are protected not only against the opposite persons in the concerned case but also from adverse interests of their own guardian or next friend.(1)
2.PROVISION:-
Order XII of the Code of Civil Procedure, 1908 deals with SUITS BY OR AGAINST MINORS AND PERSONS OF UNSOUND MIND. Order XXXII contains special provisions applicable only in cases where either the suit is:
2.1.To be instituted at the cause of a minor/person of unsound mind
2.2. To be instituted against a minor/person of unsound mind
In the Code of Civil Procedure, the main object behind the enactment of Order XXXII is the protection of the interests of minors and persons of unsound mind. The origin behind this concern rests in Common Law. The Common Law position is that persons who are unable to understand the nature and consequences of their actions (of immature intelligence and discretion) ought not to be liable for their actions so undertaken. This legal position stands firm even today except where his status is that as a cestui qui trust.(2)
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.
2.Where suit is instituted without next friend, plaint to be taken off the file:-
(1) Where a suit is instituted by or 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.
3.Guardian for the suit to be appointed by Court for minor defendants:-
3.1 Wherethe 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.
3.2 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 plantiff.
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.
3.3 Aperson 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.
4.Who may act as a next friend or he appointed guardian for the suit:-
4.1 Any person who is of sound mind and has attained majority may act as a 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 plantiff.
4.2 Where a minor has a guardian appointed or declared by competent authority, no person other than such guardian shall act as a 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.
4.3 No person shall without his consent [in writing] be appointed guardian for the suit.
4.4 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 and may give directions for the repayment or allowance of such costs as justice and the circumstances of the case may require.
5.Representation of minor by next friend or guardian for the suit:-
5.1 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,
5.2 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 is in any way concerned or affected, without such 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.(3)
3. CONCLUSION:-
Order XXXII is another example of exemplary legal framework which is part of a larger code and process of litigation that has been operating since the inception of the Code in 1908. The rules under the order have also been amended from time to time to ensure that relevance is maintained.
Situations such as fraud, collusion and adverse[29] interest have been considered. The judicial opinion as to negligence of guardian have changed over time[30] and is an interesting field where there is more scope to expand minors rights. However, Order XXXII is quite complete in its treatment of the legal problem on how to ensure fair representation of minors and persons of unsound mind.
4.CITATION:-
1. Suits by or against Minor and Person of unsound Mind Under the CPC : A Comphrehensive Analysis available at: https://www.legalserviceindia.com/legal/article-2745-suits-by-or-against-minors-and-persons-of-unsound-mind-under-the-cpc-a-comprehensive-analysis.html ( last visited on 18th Nov 2023)
2. Suits by or against Person of Unsound Mind Including Persons Incapable of Protecting Their Interest available at:https://taxguru.in/corporate-law/suits-person-unsound-mind-including-persons-incapable-protecting-interest.(last visited on 18th Nov 2023)
3. Suits by or against minors and persons of unsound mind available at : https://www.advocatekhoj.com/library/bareacts/codeofcivilprocedure/orderXXXII.php
