lawweb 15 April 2018

Whether person who is not appointed by court as guardian can

Whether person who is not appointed by court as guardian can work as next friend of minor child?

A bare reading of Order XXXII, Rule 1 of the Code makes it amply clear that 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. The next friend need not necessarily be a duly appointed guardian as specified Under Sub-section (b) of Section 4 of Hindu Guardianship Act. "Next friend" acts for the benefit of the "minor" or other person who is unable to look after his or her own interests or manage his or her own law suit (person not sui juris) without being a regularly appointed guardian as per Hindu Guardianship Act. He acts as an officer of the Court, especially appearing to look after the interests of a minor or a disabled person whom he represents in a particular matter. The afore-said provision authorises filing of the suit on behalf of the minor by a next friend. If a suit by minor is instituted without the next friend, the plaint would be taken off the file as per Rule 2 of Order XXXII of the Code. Order XXXII Rules 1 and 3 of the Code together make a distinction between a next friend and a guardian ad litem; i.e., (a) where the suit is filed on behalf of a minor and (b) where the suit is filed against a minor. In case, where the suit is filed on behalf of the minor, no permission or leave of the Court is necessary for the next friend to institute the suit, whereas if the suit is filed against a minor, it is obligatory for the Plaintiff to get the appropriate guardian ad litem appointed by the Court for such minor. A "guardian ad litem" is a special guardian appointed by a court in which a particular litigation is pending to represent a minor/infant, etc. in that particular litigation and the status of guardian ad litem exists in that specific litigation in which appointment occurs. Various High Courts have also adopted this view. The Madras High Court in Kaliammal, minor by Guardian, Patta Goundan v. Ramaswamy Goundan MANU/TN/0124/1948 : AIR 1949 Mad. 859 observed that there is no need of sanction of the Court for a next friend to sue, if he is not incapacitated. This was also the view taken by the High Court of Allahabad in K. Kumar v. Onkar Nath MANU/UP/0019/1972 : AIR 1972 All. 81.

To sum up, instituting a suit on behalf of minor by a next friend or to represent a minor Defendant in the suit by a guardian ad litem is a time-tested procedure which is in place to protect the interests of the minor in civil litigation. The only practical difference between a "next friend" and a "guardian ad litem" is that the next friend is a person who represents a minor who commences a lawsuit; guardian ad litem is a person appointed by the Court to represent a minor who has been a Defendant in the suit. Before a minor commences suit, a conscious decision is made concerning the deserving adult (next friend) through whom the suit will be instituted. The guardian ad litem is appointed by Court and whereas the next friend is not. The next friend and the guardian ad litem possess similar powers and responsibilities. Both are subject to control by the Court and may be removed by the Court if the best interest of the minor so requires.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 22969 of 2017

Decided On: 08.01.2018

Nagaiah and Ors. Vs. Chowdamma (dead) by L.Rs. and Ors.

Hon'ble Judges/Coram:

Arun Mishra and Mohan M. Shantanagoudar, JJ.

Citation: (2018) 2 SCC 504

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