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Report No. 54

Chapter 32

Suits by and Against Minors

Introductory

32.1. Order 32 relating to suits by and against minors is substantially taken from the rules of the High Court at Fort William, dated 10th June, 1874. In the case of a minor plaintiff, the provision is that he should be represented through a next friend. In the case of a minor defendant, the provision is that he should be represented by a guardian for the suit, to be appointed by the Court.

32.2. There are provisions as to who may act as next friend or be appointed guardian for the suit, the main object being to protect the interests of the minor. With the same end in view, the Order imposes restrictions on-

(a) receipt by the next friend or guardian for the suit, of property under a decree for minor;

(b) agreement or compromise by the next friend or guardian for the suit.

Retirement of next friend, removal of the next friend, and retirement, removal or death of the guardian-for the suit, are provided for. The course to be followed by a minor on attaining majority, is also dealt with. Unreasonable or improper suits by the next friend are also dealt with. Application of these rules to persons of unsound mind is provided for. We shall now deal with such points as require amendments.

Order 32, rule 3(4)

32.3. Under Order 32, rule 3(4), notice of an application for appointment of a guardian ad litem is to be given to the father or other natural guardian of the minor. It appears to us that the notice should be given to the mother also, even where she is not the natural guardian. We also concur with certain other amendments recommended in the earlier Report.1

1. 27th Report, note on Order 32, rule 3(4).

Re-draft of Order 32, rule 3

32.4. Accordingly, we recommend as follows:-

In rule 3 of Order 32, or sub-rule (4), the following sub-rules should be substituted:-

"(4) No order shall be made on any application under this rule except-

(a) upon notice to

(i) the guardian of the minor appointed or declared by an authority competent in that behalf, or, where there is no such guardian, the father or other natural guardian of the minor, or where there is no father or other natural guardian, the person in whose care the minor is,

(ii) the mother of the minor also, and

(b) after hearing any objection which may be urged on behalf of any person served with notice under this sub-rule.

(4A) The Court may, in any case, if it thinks fit, issue notice under sub-rule (4) to the minor also."



The Code of Civil Procedure, 1908 Back




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