The Procedure for Suit by or against Minors and Persons of Unsound Mind in India
Procedure for suits by a minor:
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. [O. 32, R. 1]. The next friend should be a person who is of sound mind, who has attained majority, who is not a defendant and whose interest is not adverse to that of the minor.
Where the suit is instituted without a next friend the defendant may apply to have the plaint taken off the file, with costs to be paid by the pleader off other person by whom it was presented. [O. 32, R. 2].
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. Where such a suit is instituted by an indigent person, the security shall include the court-fees payable to the Government. (O. 32, R. 2-A).
Where the defendant is a minor, the court, on being satisfied of the fact of his minority, should appoint a proper person to be guardian for the suit for such minor, called the guardian ad litem.
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.
A person appointed as 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 in any appellate or revisional court and any proceedings in any execution of a decree. (O. 32, R. 3).
Where the interest of the next friend is adverse to that of the minor or where he is connected with a defendant whose interest is adverse to that of the minor, or where he does not do his duty or, during the pendency of the suit, ceases to reside within India, or on any other sufficient cause, the court may, on an application made on behalf of the minor, order the next friend to be removed.
On the retirement, removal or death of the next friend of a minor, further proceedings are stayed until the appointment of a next friend in his place. Similarly, a guardian may also be removed if he does not do his duty or is allowed to retire by the court, and the court may appoint a new guardian in his place. (O. 32, R. 9).
Where the minor plaintiff attains majority, he may elect to proceed with the suit or elect to abandon it. If he elects the former course, he shall apply for an order discharging the next friend and for leave to proceed in his own name. The title of the suit will be corrected so as to read henceforth thus—
“A. B., late a minor by C.D., his next friend but now having attained majority.”
Where he elects to abandon the suit, he shall, if sole plaintiffs apply for an order to dismiss the suit in repayment of the costs incurred by the defendant or which may have been paid by his next friend. (O. 32, R. 12).
Where the minor applies to the court that the suit instituted in his name by his next friend be dismissed on the ground that it was unreasonable or improper and the court is satisfied of such unreasonableness or impropriety, it may grant the application and order the next friend to pay the costs of all parties in respect of the application and the suit, or make such other order as it thinks fit. (O. 32, R. 14).
All the above rules equally apply to persons adjudged to be of unsound mind.