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RAJASTHAN HIGH COURT
Arun Bhansali, J.
Kalu & Ors. —Petitioners
versus
Prakash and Ors. —Respondents
S.B. Civil Revision Petition No. 150/2013
Decided on 30.10.2013
Counsel for the Parties:
For the Petitioners:Mr. Suresh Shrimali, Advocate.
IMPORTANT POINT
In a case where a minor has a guardian appointed or declared by competent authority than such guardian shall act as next friend.
Headnote:(i) Civil Procedure Code, 1908—Order 32 Rule 4—Suit on behalf of minor—Provisions of Order XXXII provides for two distinct situations i.e., a suit on behalf of a minor and a suit in which minor is a defendant—While suit on behalf of a minor is to be instituted through a next friend, a minor as a defendant is require to defend suit through a guardian. (Para 13)
(ii) Civil Procedure Code, 1908—Order 32 Rule 4— Hindu Minority & Guardianship Act, 1956—Section 11—Suit on behalf of minor—Provisions of Order XXXII does not require a guardian to file suit on behalf of minors-plaintiffs and provisions of next friend does not require that it is only guardian who could be next friend and provisions of Section 11 have no application—Petitioners cannot be heard / choose as to who should be next friend of minors and there is no basis to question eligibility of next friend who has filed suit as there are no allegations in application regarding next friend having any interest adverse to minors or any other ineligibility as envisaged by Order XXXII—Order impugned passed by trial court rejecting application filed by petitioners does not call for any interference. (Paras 17 to 22)
Result: Civil Revision Petition dismissed.
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 VII, 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 VII, 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 XXXII 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 XXXII, 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 VII, Rule 11 CPC filed by the petitioners.
5. It is submitted by learned counsel for the petitioners that the over all scheme of Order XXXII 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 XXXII, 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. 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.
6. 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 Madras 429.
7. I have considered the submissions made by learned counsel for the petitioners.
8. The relevant provisions of Order XXXII 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 of1875) 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.
2A. 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
