Paragraph numbers below are the court’s original numbering, recovered from the source text.
10. There is no hurdle for a natural guardian or duly constituted guardian as defined under Hindu Guardianship Act to represent minor plaintiff or defendant in a law suit. But such guardian should not have adverse interest against minor. If the natural guardian or the duly constituted guardian has adverse interest against the minor in the law suit, then a next friend or guardian ad litem, as the case may be, would represent the minor in the civil litigation.
11. It is by now well settled and as per the provisions of Order XXXII of Code that any person who is of sound mind, who has attained majority, who can represent and protect the interest of the minor, who is a resident of India and whose interest is not adverse to that of the minor, may represent the minor as his next friend. Such person who is representing the minor plaintiff as a next friend shall not be party to the same suit as defendant. Rules 6 and 7 of Order XXXII of the Code specifically provide that the next friend or guardian in the suit shall not without the leave of the Court receive any money or immovable property and shall not without the leave of the Court enter into any agreement or compromise. The rights and restrictions of the natural guardian provided under the Hindu Guardianship Act do not conflict with the procedure for filing a suit by a next friend on behalf of the minor. Not only is there no express prohibition, but a reading of Order XXXII of the Code would go to show that wherever the legislature thought it proper to restrict the right of the next friend, it has expressly provided for it in Rules 6 and 7 of Order XXXII of the Code. Rule 9 of Order XXXII – apart from other factors, clarifies that where a next friend is not a guardian appointed or declared by the authority competent in this behalf and an application is made by the guardian so appointed or declared who desires to be himself appointed in the place of the next friend, the Court shall remove the next friend unless it considers, for reasons to be recorded, that the guardian ought not to be appointed as the next friend of the minor. Order XXXII, Rules 12, 13 and 14 of the Code empower the minor plaintiff to take a decision either to proceed with the suit or to abandon the suit, after attaining majority. Thus, after attaining majority, if the plaintiff elects to proceed with the suit, he may do so by making an application, consequent upon which the next friend ceases to represent the minor plaintiff from the date of attaining majority by the minor. Order XXXII Rule 12 of the Code requires the minor plaintiff to have the option either to proceed with the suit or to abandon the suit and does not at all provide that if no such election is made by the minor plaintiff on attaining majority, the suit is to be dismissed on that ground. In case, if the Court discovers during the pendency of the suit that the minor plaintiff has attained majority, such plaintiff needs to be called upon by the Court to elect whether he intends to proceed with the suit or not. In other words the minor who attained majority during the pendency of the matter must be informed of the pendency of the suit and in the absence of such a notice the minor cannot be imputed with the knowledge of the pendency of the suit. So, before any adverse orders are to be made against the minor who has attained majority, the Court has to give notice to such person. Of course, in the present matter, under the facts and circumstances, such occasion did not arise, since plaintiff no. 2 on attaining majority has continued with the suit, which means he has elected to proceed with the suit.
12. The principles arising out of the Guardians and Wards Act, 1890 and the Hindu Guardianship Act may not be apposite to the next friend appointed under Order XXXII of the Code. The appointment of a NAGAIAH AND ANOTHER v. SMT. CHOWDAMMA (DEAD) BY LRS. [MOHAN M. SHANTANAGOUDAR, J.] guardian ad litem to represent the defendant or a next friend to represent the plaintiff in a suit is limited only for the suit and after the discharge of that guardian ad litem/next friend, the right/ duty of guardian as defined under sub-section (b) of Section 4 of the Hindu Guardianship Act (if he has no adverse interest) automatically continues as guardian. In other words, a next friend representing the minor in the suit under Order XXXII, Rule 1 of the Code, will not take away the right of the duly appointed guardian under the Hindu Guardianship Act as long as such guardian does not have an adverse interest or such duly appointed guardian is not removed as per that Act.
13. In the case on hand, respondent No.2/defendant 1, though was the father of the plaintiff no.2 could not have represented plaintiff no.2 in the present suit as his guardian, because his interest was adverse to that of plaintiff no.2. A number of allegations are made against the vendor of the property i.e. against the natural guardian by plaintiff no.2 in the suit while questioning the validity of the sale deed. The action of respondent no.2 herein (defendant no.1) in selling the property without any valid reason and family necessity is the subject matter in the suit. On the other hand, plaintiff no.1 (elder brother of plaintiff no.2) who did not have any adverse interest to that of plaintiff no.2, has properly represented plaintiff no.2 as his next friend. The plaintiff no.2 has not made a single allegation against the plaintiff no.1/his next friend, after he attained majority.
14. The minor-plaintiff no.2 had attained majority within one year from the date of filing of the suit. The suit, as afore-mentioned, was filed on 21.04.1985 when the plaintiff No.2 was 17 years of age. Thus plaintiff no.2 attained the age of majority on or about 20.04.1986. Evidence of PW1 (the first witness of the plaintiffs) was recorded on 15.10.1992, which means, much prior to the recording of evidence of any of the witnesses, plaintiff no.2 had attained majority and he had by then elected to continue with the suit. It is also relevant to note that plaintiff no.2 is pursuing the matter from the date of attaining majority till this date on his own. Therefore, it was not open for the High Court to non-suit the plaintiff no.2 for the afore-mentioned reasons.
15. Though records are not produced before us to show that plaintiff no.2 had filed a formal application for discharging the next friend after he attained majority, the fact remains that he has continued with the proceedings on his own, from the trial Court to this Court. The same clearly shows his intention of continuing with the litigation. He has not abandoned his claim but has elected to continue with civil action.
16. 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.
17. In view of the above discussion, we are of the opinion that the impugned order relying upon the provisions of Hindu Guardianship Act to non-suit the plaintiff no.2 is not justified. Having regard to the totality of the facts and circumstances of the case, it would be just and proper if the matter is remitted to the High Court for a fresh decision on merits in accordance with law. Accordingly, this appeal is allowed to the aforesaid extent, the judgment of the High Court is set aside and the matter is remitted to the High Court for a fresh decision on merits, in accordance with law. Needless to mention, that we have not expressed any opinion on the merits of the case. There shall be no order as to costs. Kalpana K. Tripathy Appeal allowed. NAGAIAH AND ANOTHER v. SMT. CHOWDAMMA (DEAD) BY LRS. [MOHAN M. SHANTANAGOUDAR, J.]