A person can act as the next friend of a minor in a suit under Order 32 CPC if they are of sound mind, have attained majority, have no interest adverse to that of the minor, and are not a defendant in the suit.

Arun Bhansali, J.

This revision petition is directed against the order dated 31.5.2013 passed by Additional District Judge No.2, Udaipur, whereby the application filed by the petitioners under Order 7, Rule 11 CPC has been rejected.

2. Brief facts of the case may be noticed thus : one Prakash and Miss Pushpa, minor children of late Paratiya filed a suit for cancellation of sale deed dated 26.6.2012 and permanent injunction, inter-alia against the petitioners through their uncle Amba Lal.

3. An application was filed by the petitioners under Order 7, Rule 11 CPC, inter-alia with the allegations that Amba Lal has wrongly filed the suit as guardian of Prakash and Miss Pushpa and such suit was not maintainable as per provisions of Order 32 CPC as under the said provisions it is only the natural guardian, who can file the suit as next friend and plaintiffs' grand mother Gaindi Bai was still alive. Further averments were made that the suit could only be filed by the natural guardian or guardian appointed by the Court and third person cannot file a suit. It was also claimed that the plaintiffs have no cause of action and Amba Lal cannot question the sale and as such the suit was not maintainable.

4. The trial court after hearing the parties by the impugned order dated 31.5.2013 came to the conclusion that provision of Order 32, Rule 4 CPC does not require that the suit has to be filed by a natural guardian only and consequently, dismissed the application under Order 7, Rule 11 CPC filed by the petitioners.

5. It is submitted by learned counsel for the petitioners that the over all scheme of Order 32 provides that a suit by or against minor can only be filed by the natural guardian and/or person entitled under the provisions of the Hindu Minority & Guardianship Act, 1956 ('the Act') and no one else can file a suit as next friend. It was submitted that if the intention of legislature is gathered then provisions of Order 32, Rule 3 CPC would also apply to a suit by the minor and as admittedly Amba Lal is neither a natural guardian nor guardian appointed by the Court he is not entitled to maintain the suit.

6. Reference was made to provisions of Section 11 of the Act to contend that de facto guardian is not entitled to deal with minor's property.

7. Reliance was also placed on judgment of Allahabad High Court in Surendra Kumar & Anr. v. Rajendra Kumar Agarwal, AIR 1990 Allahabad 49 and that of Madras High Court in Balasubramanian v. Tinnevally District Permanent Fund Ltd., AIR 1959 Mad. 429

8. I have considered the submissions made by learned counsel for the petitioners.

The relevant provisions of Order 32 CPC reads thus:

"ORDER XXXII

SUIT BY OR AGAINST MINORS AND PERSONS OF UNSOUND MIND

1. Minor to sue by next friend.- 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.

Explanation.- In this Order, "minor" means a person who has not attained his majority within the meaning of section 3 of the Indian Majority Act. 1875 (9 of 1875) where the suit relates to any of the matters mentioned in clauses (a) and (b) of section 2 of that Act or to any other matter.

2. Where suit is instituted without next friend, plaint to be taken off the file.- (1) Where a suit is instituted by or on behalf of a minor without a next friend, the defendant may apply to have the plaint taken off the file, with costs to be paid by the pleader or other person by whom it was presented.

(2) Notice of such application shall be given to such person, and the Court, after hearing his objections (if any) may make such order in the matter as it thinks fit.

2-A. Security to be furnished by next friend when so ordered.- (1) 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 incurre