Who can represent a minor plaintiff or a minor defendant in a civil suit?

Order 32 of the Civil Procedure Code (CPC) deals with Suits by or against Minors and Persons of Unsound Mind.

Rule 1 of Order 32 lays down that every suit by a minor (i.e., for minor plaintiff) shall be instituted in his name by a person who in such suit shall be called the next friend of the minor.

On the other hand, if the minor is a defendant in the suit, then Rule 3 will come into operation. As per this, the Court shall appoint a proper person to be guardian for the suit for a minor defendant. Such a guardian is also generally referred to as guardian ad litem. This Rule further says that an order for the appointment of a guardian for the suit may be obtained from the court upon application in the name and on behalf of the minor or by the plaintiff. Such application is required to 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.

It is noteworthy that no formal permission of the court is required for being the next friend of the minor to file a suit on his behalf. However, court’s approval is needed for appointment of a guardian ad litem for the minor defendant.

Now, the question arises as to who can be the next friend or the guardian for a minor. This is answered in Rule 4 of Order 32 of CPC:

“4. Who may act as next friend or be 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.

(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 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 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 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.”

In this regard, in a recent case, namely, in Nagaiah v. Chowdamma, (2018) 2 SCC 504, the Supreme Court held that

“It is by now well settled and as per the provisions of Order 32 of the Code that any person who is of sound mind, who has attained majority, who can represent and protect the interest of the minor, who is a resident of India and whose interest is not adverse to that of the minor, may represent the minor as his next friend. Such person who is representing the minor plaintiff as a next friend shall not be party to the same suit as defendant. Rules 6 and 7 of Order 32 of the Code specifically provide that the next friend or guardian in the suit shall not without the leave of the court receive any money or immovable property and shall not without the leave of the court enter into any agreement or compromise. The rights and restrictions of the natural guardian provided under the Hindu Guardianship Act do not conflict with the procedure for filing a suit by a next friend on behalf of the minor. Not only is there no express prohibition, but a reading of Order 32 of the Code would go to show that wherever the legislature thought it proper to restrict the right of the next friend, it has expressly provided for it in Rules 6 and 7 of Order 32 of the Code. Rule 9 of Order 32, apart from other factors, clarifies that where a next friend is not a guardian appointed or declared by the authority competent in this behalf and an application is made by the 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, that the guardian ought not to be appointed as the next friend of the minor.”

The Supreme Court further held that Order 32 Rules 1 and 3 of the CPC together make a distinction between a next friend and a guardian ad litem; i.e., (a) where the suit is filed on behalf of a minor, and (b) where the suit is filed against a minor. It was held that in case, where the suit is filed on behalf of the minor, no permission or leave of the court is necessary for the next friend to institute the suit, whereas if the suit is filed against a minor, it is obligatory for the plaintiff to get the appropriate guardian ad litem appointed by the court for such minor. A “guardian ad litem” is a special guardian appointed by a court in which a particular litigation is pending to represent a minor/infant, etc. in that particular litigation and the status of guardian ad litem exists in that specific litigation in which appointment occurs.

It was also clarified by the Supreme Court that a bare reading of Order 32 Rule 1 of the CPC makes it amply clear that 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. The next friend need not necessarily be a duly appointed guardian as specified under clause (b) of Section 4 of the Hindu Minority and Guardianship Act. “Next friend” acts for the benefit of the “minor” without being a regularly appointed guardian as per the Hindu Minority and Guardianship Act. He acts as an officer of the court, especially appearing to look after the interests of a minor whom he represents in a particular matter. The aforesaid provision authorises filing of the suit on behalf of the minor by a next friend. If a suit by minor is instituted without the next friend, the plaint would be taken off the file as per Rule 2 of Order 32 of the Code.

The Supreme Court also highlighted that “Guardian” as defined under the Hindu Minority and Guardianship Act is a different concept from the concept of “next friend” or the “guardian ad litem” under Order 32 of CPC. Representation by “next friend” of minor plaintiff or by “guardian ad litem” of minor defendant is purely temporary, that too for the purposes of that particular law suit.

Thus, it is not necessary that the minor is to be represented by a guardian as appointed under the Hindu Minority and Guardianship Act. A minor plaintiff can be represented by the next friend (who may or may not be his guardian under the said Act) and a minor defendant can be represented by a guardian ad litem appointed under Rule 3 of the Order 32 (who, again, may or may not be his guardian under the Hindu Minority and Guardianship Act).

As held by the Supreme Court in the aforesaid case, any person who is of sound mind, who has attained majority, who can represent and protect the interest of the minor, who is a resident of India and whose interest is not adverse to that of the minor, may represent the minor plaintiff as his next friend. Same principle applies to a person who can be appointed as a guardian to represent a minor defendant.

Moreover, as mentioned above, as per Rule 2 of Order 32, if a suit by minor is instituted without the next friend, the plaint would be taken off the file. Thus, it is necessary for a minor to have a next friend or a guardian in a civil suit, wherein he is a plaintiff or a defendant, as the case may be.