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, indigent 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 XXXII and XXXIIIare 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.Order XXXII ; Suits by or against minors and persons of Unsound mind:1

Order XXXII 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:

To be instituted at the cause of a minor/person of unsound mind or it is 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

discretionought 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.

In Ram Chandra v. Man Singh it was held that a decree passed against a minor or a lunatic

without appointment of a guardian is a nullity and void, not merely voidable. Now that the

origin of the concerned aspect of law is intelligible, it next becomes important to describe who

it pertains to.

A minor is, for purposes of civil litigation in India, defined to mean a person who has not

attained majority under the provisions of the Indian Majority Act, 1875, that is a person who

has not completed the age of eighteen years and in the case of a minor of whose person or

property a guardian has been appointed by a court, or whose property is under a court of wards,

a person who has not attained the age of 21 years.

Similarly, a person of unsound mind is a person who is declared after competent examination

to be unable to understand the nature and consequence of his actions due to the presence of a

mental disease or infirmity.

Rules 1 - 14 of Order XXXII apply not only to minors and persons, adjudged to be of unsound

mind, but also, those, who are found to be, by a Court upon inquiry to be incapable, by reason

of any mental infirmity, of protecting their interest when suing or being sued. This is based onthe natural law principle that both parties to a suit must be heard equally before a suit is

adjudicated upon.

The next legal problem that arises is how best to ensure that such disadvantaged persons are

not taken advantage of by means of vexatious litigation or misuse of provision. This was

addressed by the concept of next friend or guardian. The concept is framed on the assumption

that a next friend or guardian, being an adult of reasonable prudence will act to ensure that the

disadvantaged persons interests are not misdirected.

Concept of Next Friend/ Guardian:

The object behind having a next friend or guardian ad litem is that a minor is deemed to be

incapable of defending himself and therefore it is imperative that his interests in the suits should

be supervised by an adult person. This person, in case the minor is a plaintiff, is to be called

the next friend and when the minor is a defendant, is called a guardian ad litem or guardian for

the suit. However, neither the next friend nor guardian ad litem is a party to the suit.The power

of the person so assigned is limited to the proceedings for which he is recognised by the court.

Who can be appointed as Next Friend/Guardian:

Every suit by a minor should be instituted in his name through his guardian or next friend. If

the same is not done, the plaint will be taken off the file.Any person who has attained majority

and is of sound mind, may act as a guardian or next friend, provided his interest is not adverse

to that of minor, who is not the opposite party in the suit and who gives consent in writing to

act as a guardian or next friend.In the absence of a guardian who is fit and willing person to act

as a guardian, the court may appoint any of its officers as guardian in that particular suit.

Provisions to ensure that interests of minors are safeguarded during the suit - Rule 5 of Order

XXXII states that every representation made before the court other than under Rule 10(2) must

be made by his next friend or guardian.Where an order is passed without such representation,

the same may be discharged with.Further, by way of Rules 6 and 7, without the leave of the

court, no guardian or next friend can:

Receive any amount or movable property on behalf of the minorEnter into any agreement on behalf of the minor

Reach any sort of compromise in the suit on behalf of the minor

The guardian must apply for leave of the court in all of the above cases and the application

must be accompanied with a pleaders certificate and affidavit. Any agreement entered into,

without the leave of the court is voidable at the instance of the minor.Rules 6 and 7 have been

designed in order to safeguard the interests of a minor during the pendency of a suit against

hostile, negligent or collusive acts of next friend or guardian.

The principle these rules follow is that infant litigants become wards of court and therefore it

becomes the duty of the court to ensure that guardians act properly and bona fide in the interests

of the minor. The protection however, is only during the pendency of the suit.

Duty to Act in Best Interest of Minor:

As already stated in rule 4 any person complying with the qualifications under Rule 4 may

become guardian or next friend. The guardian or next friend however, must ensure that he acts

in best interests of the minor or unsound person. A guardian must ensure that the discretionary

powers exercised by him in his capacity as guardian including the employment/dismissal of

legal counsel etc. must be in the best interests of the minor and not to advance his own cause

or interests.

However, in certain cases it may be allowed for the guardian and the minor to have common

interest in the suit. As in the case of Ranganathan Chettiar v. Perrkarriappa Chettiar where

the mother was allowed to bring a suit concerning certain properties to be inherited by her and

her minor son which had been wrongfully claimed by the brother of the deceased husband.

Retirement, removal or death of guardian/next friend2

- A next friend or guardian who

wishes to retire must first procure a fit person to substitute him and give security for costs

already incurred by him.

The court may also remove a particular guardian or next friend if the court is satisfied that

either

His interest is adverse to that of the minor in the concerned case.

He is in such a standing as to be capable of colluding with the opposite party or is closely

connected to the opposite party, or

He does not discharge his duty to the satisfaction of the court, or

He ceases to stay in India during the pendency of the suit and is therefore unable to look after

the best interests of the minor, or

Any other sufficiently justifiable cause as the court may decide.

In a case where a guardian or next friend retires or is removed or in the case of his death, the

suit remains stayed until another appropriate guardian is duly appointed in that particular case.

When Minor attains majority:3

When a minor attains majority, he can choose either to proceed with a particular suit or to

abandon it, if he had moved the court through a next friend/guardian. Therefore:

Where he elects to proceed with the suit - he must apply for an order from the court discharging

the next friend or guardian and for leave to proceed with the suit in his own name.

Where he elects to abandon the suit - he must apply for dismissal of suit on repayment of costs

to defendant or next friend/guardian as the case may be.

Where minor co-plaintiff desires to repudiate suit - he may repudiate the suit and apply to have

his name as co-plaintiff stuck off. The court after examination of the circumstances may

remove his name from the suit on finding that he is not a necessary party or may make him a

defendant instead.

Where minor desires that suit instituted in his name be dismissed on the ground that it was

unreasonable/improper - he may by application move the court for dismissal on such grounds.[

It is important to mention that Order XXXII does not expressly provide for provisions when a

defendant would attain majority because a defendant cannot terminate the suit.

Application of Order XXXII to persons of unsound mind - Rule 15 of the Code states that the

provisions of Order XXXII (Rules 1 to 14) shall squarely apply to persons of unsound mind as

they do to minor with exception of Rule 2A which relates to the furnishing of certain securities

by guardian.

Order XXXIII; Suits by Indigent Persons : 4

Who is an indigent person?

As soon as a civil suit is filed in the court, the plaintiff(s), at the time of filing their plaint, are

required to submit the requisite court fees as directed by theCourt Fees Act, 1870. However,

Order XXXIII of the Code of Civil Procedure saves indigent persons by way of discharging

them from the liability to pay the required court fees. It then allows such individuals to institute

the suit in forma pauperis which is subject to some conditions as postulated under the Rule 1

of Order XXXIII of CPC.

Discussing the definition of an indigent person in the light of Union Bank of India v.

Khader International Construction5

The Hon’ble Supreme Court in Union Bank of India v. Khader International

Construction discussed the definition of an indigent person. It was observed by the court that

an indigent person is one who is not possessed of sufficient amount (other than property exempt

from attachment in execution of a decree and the subject-matter of the suit) to enable him to

pay the fee prescribed by law for the plaintiff in such a suit. In case no such fee is prescribed if

such person is not entitled to property worth one thousand rupees other than the property

exempt from attachment in execution of a decree and the subject matter of the suit he would be

an indigent person.

Legal representative as an indigent

In Lakshmi v Vijaya Bank, R.V. Revanna filed a petition under Order 33 Rule 1 and Rule 7

wherein he represented himself to be an indigent person. The respondent contended the petitioner to be an indigent person and questioned his indigency. Before the cross-examination

of the petitioner took place, he died leaving behind his wife and children. Thereafter an

application was filed by the petitioner’s wife to permit them to file the suit as a legal

representative. The trial court observed that in case of the death of the applicant, the legal

representatives won’t be permitted to substitute the indigent person as the right to sue as an

indigent person is a personal right. However, the high court admitted the application filed by

the legal representative and allowed them to file the petition as indigent persons.

Inquiry into the means of an indigent person

Rule 1A of Order 33 states that the Chief Ministerial Officer of the court has the authority to

do an inquiry. The inquiry is conducted in the first instance to know if an applicant is an

indigent person or not. It is upon the discretion of the court whether to accept the report

submitted by such an officer or make an inquiry.

Procedure to file a suit as an indigent person 6

Before filing a suit as an indigent person begins, it is important to add all the relevant contents

in the application seeking permission to be an indigent person (Rule 2). As per Rule 2 of Order

XXXIII, the application must include the particulars similar to what is mentioned in the plaint

and all movable or immovable properties of the indigent person/applicant along with its

estimated value.

The indigent person/applicant shall himself in person present the application before the court.

In case, such a person is exempted from appearing in the court, an authorized agent may present

the application on his behalf. In certain circumstances where there are two or more plaintiffs,

the application can be presented by anyof them.(Rule 3). The suit begins as soon as the

application to sue as an indigent person is duly presented before the court. Subsequently, the

indigent person/applicant is examined by the court. However, if the applicant is being

represented by his agent, then in such a case, the court may examine the applicant by the commission.