18. SUIT BY & AGAINST MINOR(s)
UNDER CIVIL PROCEDURE CODE 1908 - RULE 1 OF ORDER 32 :
A minor is a person who has not attained the age of 18 years. But in case of minor of whose person or property a guardian has been appointed by Court the age of Majority is 21 years.OBJECTS :
Order 32 has been specially enacted to protect the interest of minors & person of unsound mind & to ensure that they are represented in suit by person who are qualified to such acts.Thus, Decree passed against minor or lunatics without appointment of guardian is nullity & is void & not merely voidable.
SUIT BY MINORS (R 1 to 2-A) :
Every suit by minor should be instituted in his name through his guardian or next friend.If it is not done, the Plaint will be taken off. Where such minor is plaintiff then court may at any stage of suit, either on application by defendant or on suo-moto order his guardian to furnish security for court of defendant.
SUIT AGAINST MINORS (Rule 3) :
Where the suit is instituted against minor, the court should appoint guardian to defend the suit.Such appointment should continue throughout all proceeding including appeal, revision or execution proceeding unless it is terminated by retirement, removal or death of such guardian.
WHO MAY BE APPOINTED AS GUARDIAN OR NEXT FRIEND (RULE 4) :
Any person who has attained majority & is of sound mind may act as guardian or next friend, provided that –a. His interest is not adverse to that of minor,
b. Who is not the opposite party of suit,
c. Who gives consent in writing.
d. In the absence of fit & willing person to act as guardian court may appoint any of its officers as guardian.
POWER & DUTIES OF GUARDIAN ( RULE 5 TO 7) :
1. Receive any amount or movable property on behalf of minor by way of compromise.2. Nor enter into any agreement or compromise on his behalf in suit.
An application for leave of court should be accompanied by an affidavit.
INTEREST OF INFANTS OF PARAMOUNT CONSIDERATION :
It is therefore duty of court to ensure that the guardian acts honestly & experience their discretionary powers bonafide in the interest minors.
RETIREMENT, REMOVAL OR DEATH OF GUARDIAN OR NEXT FRIEND (RULE 8 to 11) :
A next friend or guardian of minor cant retire without first procuring a fit person for substituting him.
The Court may remove a next friend or guardian of minor, if it is satisfied that
1. His interest is adverse to that of minor,
2. He is connected with opposite party,
3. He does not discharge his duties properly,
4. He ceases to stay in India,
5. There is any other sufficient justifiable cause.
On retirement, removal or death of next friend or guardian of minor, further proceeding in suit shall remain stayed until another guardian or next friend is appointed.
DECREE AGAINST MINOR(S) (RULE 3 A) :
A decree passed against a minor without appointment of next friend or guardian is null & void.But Decree passed against minor cannot be said to be illegal. The minor may obtain appropriate relief for misconduct or gross negligence on part of his next friend or guardian.
MINOR ATTAINING MAJORITY ( RULE 12 to 14)
On attaining the age of majority a minor plaintiff any of following courses :
1. He may proceed with suit, In that case he shall apply for discharging the next friend or guardian.
2. He may abandon the suit & apply for its dismissal or repayment of cost to the defendant,
3. He may also apply for dismissal of suit on ground that it was unreasonable & improper.
4. Where he is co-plaintiff, he may repudiate the suit.
