Supreme Court on Suits By or Against Minors

INTRODUCTION

On today’s show, we will discuss the case of K.P. Natarajan v. Muthalammal and Others, 2021 SCC OnLine SC 467, wherein the Hon’ble Supreme Court discussed Order XXXII of the Code of Civil Procedure, 1908 (in short, “CPC”) that deals with Suits by or against Minors and Persons of Unsound Mind.

 

The facts of the case are not relevant for our purposes and hence, I would not be discussing the same here. The moot question that was answered in this case was: -

 

Whether an ex-parte decree could be set aside on the ground that it was passed against a minor without the minor being represented by a guardian duly appointed in terms of O. XXXII of CPC or not?

 

In order to understand this conundrum, let us discuss the observations by the Hon’ble Court.

 

OBSERVATIONS BY THE COURT

 

Firstly, the Court discussed the scheme of Order XXXII of CPC. It opened with Order XXXII Rule 3 of CPC that provides that where a Defendant is a minor, the Court shall appoint a proper person to be his/her guardian for the suit. In order to appoint a guardian, an Application shall have to be moved in the name of the Minor or by the Plaintiff indicating that the proposed guardian is fit to be appointed and has no adverse interest in the matter. Thereafter before passing the Order of Appointment of the Guardian, the Court shall have to issue notices to the existing guardian or the father or the mother or natural guardian or caretaker, as the case may be. Such appointment of the guardian shall continue throughout the proceedings including any consequential proceedings like Appeal, Revision etc. arising out of the original proceedings.

 

It is pertinent to note that under Order XXXII Rule 1, a Minor could institute a Suit in his name through a next friend. Under Rule 2A, such next friend could even be ordered to provide security for the payment of the costs including the Court Fees, as the case may be, that is likely to be incurred by the Defendant.

 

Similarly, Order XXXII Rule 4 provides that the next friend or the guardian appointed must be fit, of sound mind and must not have any adverse interest in the matter. Rules 5 and 6 provide that all the applications on behalf of the Minor are to be moved by the next friend or the guardian and they could even receive money or movable property on behalf of the Minor. The Court may even order the next friend or the guardian to deposit security in this regard.

 

Rule 7 puts an embargo that the next friend or the guardian shall not, without the leave of the court, enter into any agreement or compromise on behalf of the minor, and any such agreement shall be voidable.

 

Rules 8, 9, 10 and 11 deal with retirement and removal of the next friend or the guardian. Rule 12 provides that when the Minor attains majority, he has the option to discharge the next friend and proceed with the suit on his own. Under Rule 13, the Minor upon attaining majority may even repudiate the suit as long as he is not a necessary party to the suit. If he is a necessary party, the Court could get him impleaded as a Defendant. In the same breath, Rule 14 gives power to the Minor to get the suit dismissed on the ground that the same was unreasonable or improper. These rules also apply on persons of unsound mind, except Rule 2A that deals with furnishing of security by next friend.

 

Secondly, the Supreme Court perused the record and found out that the Trial Court did not appoint a guardian for the Minor in the present case, in terms of scheme laid down under Order XXXII of CPC.

 

Thirdly, the Court also cited Order XXXII Rule 3A of CPC that provides that a Decree against a Minor shall not be set aside merely on the ground that the guardian had an interest in the subject-matter of the Suit, unless prejudice to minor is established. According to the Court, Rule 3A becomes applicable only when the guardian has an adverse interest in the subject-matter of the suit and not otherwise.

 

And lastly, the Supreme Court observed that in case the procedure followed by the Trial Court is not in compliance of the stipulations laid down in Order XXXII Rule 3 of CPC, then it could be held that the guardian of the minor defendant was not appointed as per law. The High Courts can set aside such orders by invoking the powers Article 227 of the Constitution of India.

 

Therefore, upon cumulative consideration of the facts and circumstances, the Hon’ble Supreme Court held that an ex-parte decree could indeed be set aside on the ground that it was passed against a minor without the minor being represented by a guardian duly appointed in terms of O. XXXII of CPC.

 

Those were the observations by the Court. So, what are my concluding remarks?

 

CONCLUSION

 

Order XXXII of CPC provides the right to minors to sue by a next friend or defend through a guardian. It is a valuable right accorded to the minors who are not in a position to contest legal proceedings on their own. Thus, when specific provisions have been set out in relation to appointment of guardians, then it would be sheer travesty of justice, if such provisions are ignored and orders are passed against a Minor. It would definitely amount to violation of the precious rights accorded to the Minors under the Code of Civil Procedure.