How is a suit by or against a minor instituted? What is the effect of a suit in which a minor has sued or has been made without observing the prescribed rules of procedure?

Question: How is a suit by or against a minor instituted? What is the effect of a suit in which a minor has sued or has been made without observing the prescribed rules of procedure?

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Answer

The term ‘minor’ for the purposes of the Code of Civil Procedure, 1908 refers to one who has not attained the age of majority according to Section 3 of the Indian Majority Act, 1875. Order XXXII also provides for persons of unsound mind to sue and be sued.

A minor cannot sue by himself nor can he be sued without being represented by someone else. This someone else is called a “next friend” when the minor is the plaintiff in an action and is called a “guardian ad litem” when the minor is a defendant. The nomenclature does not matter, and the real fact is that the next friend or the guardian ad litem represents the Interest of the minor.

Order XXXII, Rules 1-16 provide for the appropriate procedures to be followed by minors who intend to institute a suit in civil court, by the use of a ‘next friend’ or a ‘guardian ad litem’ on behalf of a minor who has been made a defendant in any suit instituted by another person.

Order XXXII, Rule 1 provides that every suit by a minor should be instituted in his name by a next friend. The use of the term ‘shall’ implies that this is a mandatory requirement under the Code. The explanation further mentions that the term minor is to be understood as it is defined in the Indian Majority Act, 1875.

Order XXXII, Rule 3A specifically lays down that the decree against minors is not to be set aside unless prejudice has been caused to his interests. It says that no decree passed against a minor defendant will be set aside on the mere ground that the next friend or guardian ad litem for the suit had an interest in the subject matter of the suit, adverse to that of the minor.

Sub-rule 3A(1) sets out the additional condition for such a decree to be set aside that prejudice must have been caused to the interests of the minor by the impugned adverse interest held by the guardian or next friend.

Thus, the effect of a suit in which a minor has sued or has been made without observing the prescribed rules of procedure, and such action has caused prejudice to the interest of the minor then, the decree is liable to be set aside.

Even an executing Court can question the legality otherwise of a decree on the ground that it was passed against a minor or against a person of unsound mind who was not properly represented in the suit by a guardian. The Supreme Court in the case of VD Modi v. RA Rahman, AIR 1970 SC 1475 held that such a question of irregularity can be raised even in execution.

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