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Report No. 27

Order XXXII, rule 1 and costs

An amendment has been made by the High Court of Punjab to Order XXXII, rule 1 empowering the court to order the next friend to pay costs. It is felt that such a power already exists, and that the provisions of section 35 are very wide to cover such an order. The amendment has not, therefore, been adopted.

Order XXXII, rule 2A

A recommendation was made in the 14th Report1 to the effect that a provision similar to Order XXXII, rule 2A as inserted by the Madras High Court should be inserted. The Report observed, that such a provision would control vexatious litigation by next friends of minors. Under the Madras Amendment, the court has power at any stage of the suit to order the next friend to give security for costs of the defendant, if it appears that the suit has been instituted by the next friend "improperly or unreasonably". It is, however, considered that the power to demand security should be there in every case where the court thinks fit to require security, but the reasons should be recorded. An amendment on those lines has, therefore, been proposed.

1. 14th Report, Vol. I.

Order XXXII, rule 3

This carries out the recommendation made in the Fourteenth Report1. At present, where a guardian for the suit is to be appointed for the defendant, notice has to be issued in all cases to the minor defendant. The amendment seeks to alter this position by providing that the issue of the notice will be discretionary.

Compare Order XXXII, rule 4A (4) as inserted by the Nagpur High Court, and the Punjab Amendment inserting a proviso to the same effect.

As will appear from a few recent decisions, the question often arises whether a decree against a minor can be set aside on the ground of the gross negligence of his guardian. Most High Courts have answered the question in the affirmative2-3-4-5-6.

The Bombay High Court has, however, taken the view, that gross negligence of the guardian cannot be made the basis of a suit to set aside the decree against a minor7.

As the matter is really one of substantive rights, it would not be proper to insert a provision on the subject in this Code8. If necessary, it can be considered when the Evidence Act is revised. Compare sections 42-44 of that Act.

1. 14th Report, Vol. I.

2. Mahesh v. Manindra, AIR 1941 Cal 401.

3. Ganesan v. Subramanyan, AIR 1958 Mad 148.

4. Narayanan v. Gopalan, AIR 1960 Ker 367.

5. Murli Manohar v. Lachmanji, AIR 1959 All 342.

6. Iftkhar Hussain v. Beant Singh, AIR 1946 Lah 233 (FB).

7. Krishna Das v. Vithoba, AIR 1939 Boni 66 (FB).

8. See Sarkar's Evidence, 10th Edn., pp. 443 and 446.

Order XXXII, rule 4 (3)

1. Punjab has amended this sub-rule to provide that consent need not be express and can be presumed.

In the absence of such a provision, the question may arise whether consent should be express. One view is that it should be express1. Another is that it can be implied2-3-4.

It appears to be desirable to clarify the position, and to provide that it must be in writing, so as to avoid disputes. Necessary amendment is proposed.

2. Generally as to mandatory character of this rule, see the case cited below5.

3. The Fourteenth Report6 also took the view that the consent should not be presumed.

1. Jagadish v. Harihar, AIR 1924 Cal 1042.

2. See discussion in Nirmal v. Khandu Ghosh, (1963-64) (17-2-1964) 68 CWN 343.

3. Vasireddi v. Lalchmi Narayana, AIR 1925 Mad 30.

4. Raman v. Raman, AIR 1959 Ker 169.

5. Ramchandra v. Gopi Krishna, AIR 1957 Pat 260.

6. 14th Report, Vol. I, para. 94.

Order XXXII, rule 4(4)

1. Two changes were suggested by the Fourteenth Report1 in Order XXXII, rule 4, as follows:-

(1) Where a court guardian, natural guardian, or de facto guardian is not fit and willing to act as guardian in the suit for a minor defendant, the court can at present appoint any of its own officers to be such guardian. The recommendation was, that this should be made obligatory, that is to say, a provision that the court shall appoint its own officer as a guardian in such cases should be inserted.

(2) Further, power should be given to the court to order payment of the costs of that officer from the minor's property.

2. It is, however, considered that a rigid provision on the lines suggested on the first point may prove inconvenient. The recommendation has not, therefore, been carried out.

3. An amendment on the second point is proposed.

1. 14th Report, Vol. I, para. 95.



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