*THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY
+ A.S.No.490 of 2011
% 07-07-2011
# Kum. Vardhineedi Sivani ..Appellant
And
$ Vardhineedi Narasimha Rao & others
..Respondents
!Counsel for the appellant: Sri K. Chidambaram
^Counsel for respondents . : Sri A.V. Seshasai
< Gist:
> Head Note:
Citations:
THE HON’BLE MR JUSTICE L. NARASIMHA REDDY
A.S.No.490 of 2011
JUDGMENT:
This appeal is filed against the judgment and decree dated 30-07-2010 in O.S.No.112 of 2003 passed by the Court of
VI Additional District Judge (Fast Track Court), Narsapur, West-Godavari District. The plaintiff is the appellant.
VI Additional District Judge (Fast Track Court), Narsapur, West-Godavari District. The plaintiff is the appellant.
The plaintiff is a minor girl. She is the daughter of the
2nd respondent. The 2nd respondent obtained a decree of divorce against the mother of the appellant. The suit was filed by her through her maternal uncle, as next friend, for the relief of partition and separate possession of the suit schedule properties and allotment of 1/6th share to her. It was pleaded that all the items of suit schedule are joint family properties and being a coparcener, she is deemed to be in joint possession of the properties.
It was alleged that the respondents 1 to 3 are trying to alienate the properties to her detriment. The particulars of sale of certain items of property were incorporated in the plaint, by way of amendment.
2nd respondent. The 2nd respondent obtained a decree of divorce against the mother of the appellant. The suit was filed by her through her maternal uncle, as next friend, for the relief of partition and separate possession of the suit schedule properties and allotment of 1/6th share to her. It was pleaded that all the items of suit schedule are joint family properties and being a coparcener, she is deemed to be in joint possession of the properties.
It was alleged that the respondents 1 to 3 are trying to alienate the properties to her detriment. The particulars of sale of certain items of property were incorporated in the plaint, by way of amendment.
The suit was contested by defendants 1 to 4 and 6. They raised a preliminary objection as to the maintainability of the suit
on the ground that the appellant was not properly represented, much less any guardian was appointed. The trial Court dismissed the suit on the ground that no guardian was appointed for the appellant herein.
on the ground that the appellant was not properly represented, much less any guardian was appointed. The trial Court dismissed the suit on the ground that no guardian was appointed for the appellant herein.
Sri K. Chidambaram, learned counsel for the appellant submits that C.P.C. provides for presentation of a plaint on behalf of a minor, through a next friend, and that in the instant case, the maternal uncle of the appellant was shown as the next friend.
He contends that Order XXXII of C.P.C., provides for various stages, and once the plaint is presented through the next friend, the trial Court has to undertake exercise of appointment of guardian for the purpose of the suit. He submits that even if there was failure to file an application, as provided for under Rule 3 of Order XXXII,
the Court could have insisted, on compliance with the provision; before proceeding further. Learned counsel submits that the trial Court, could have at the most insisted on filing of an application for appointment of a guardian or returned the plaint, and that there was no justification for dismissal of the suit.
He contends that Order XXXII of C.P.C., provides for various stages, and once the plaint is presented through the next friend, the trial Court has to undertake exercise of appointment of guardian for the purpose of the suit. He submits that even if there was failure to file an application, as provided for under Rule 3 of Order XXXII,
the Court could have insisted, on compliance with the provision; before proceeding further. Learned counsel submits that the trial Court, could have at the most insisted on filing of an application for appointment of a guardian or returned the plaint, and that there was no justification for dismissal of the suit.
Sri A.V. Seshasai, learned counsel for the contesting respondents, on the other hand, submits that when the parents of the appellant are very much alive, the suit could have been filed through one of them, acting as guardian, and that, if for any reason the natural parents cannot be appointed, an application ought to have been made for appointing the maternal uncle as guardian. Learned counsel submits that a minor cannot prosecute the remedies, unless she is properly represented, and that the trial Court has taken the correct view of the matter.
There is no dispute that the appellant is minor. The suit filed by her through her maternal uncle was numbered and summons were issued. Written-statement was filed opposing the suit. The trial Court, initially framed two issues for consideration, viz.,
1. Whether the plaint schedule properties are the joint family properties of the plaintiff and defendants?
2. Whether the plaintiff is entitled for partition of plaint schedule properties into six equal shares and to allot her 1/6th share in her separate possession?
Later on, the following two additional issues were framed:
1. Whether 6th defendant is proper and necessary party to this suit?
2. Whether the guardian of the plaintiff is legally valid guardian in the suit proceedings and whether he is entitled to file this suit as a representative of the plaintiff?
On behalf of the appellant, her next friend deposed as PW-1 and filed Exs.A-1 to A-9. On behalf of the contesting respondents, DWs 1 to 3 were examined and Exs.B-1 to B-3 were filed. The trial Court dismissed the suit by undertaking the discussion only upon additional issue No.2.
At the outset, this Court takes exception to the manner in which the additional issues were framed. The first additional issue is meaningless. The question as to whether a particular person is proper or necessary party arises in an application to implead him or when a person, who is a proper or necessary party is not impleaded in the suit, to consider the effect of his absence, when the 6thdefendant is already a party, the issue is superfluous.
So far as the second additional issue is concerned, what is needed in law is the presence of next friend, and not guardian. Both when it framed additional issues and when it decided the suit, the trial Court failed to maintain the distinction between the next friend, on the one hand, and guardian, on the other hand. These expressions occur in Order XXXII C.P.C.
A minor is not capable of entering into the contract, much less to institute proceedings on his/her own accord. However, it does not mean that the interests of the minors cannot be protected. Law permits the proceedings to be instituted on their behalf through a person called as “next friend”. Rule 1 of Order XXXII reads:
“O.XXXII R.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”.
If a suit is presented by a minor, without next friend,
Rule 2 mandates that the plaint shall be “taken off” the file. This would not be equivalent to rejection of a plaint. If a plaint is taken off the file, on account of there not being a next friend, the defect so noticed can be cured. Rejection of the plaint, on the other hand, would terminate the suit, once for all, and the only remedy would be, to prefer a regular appeal. In a given case, the minor may be represented by a guardian also. However, it is not mandatory.
Rule 2 mandates that the plaint shall be “taken off” the file. This would not be equivalent to rejection of a plaint. If a plaint is taken off the file, on account of there not being a next friend, the defect so noticed can be cured. Rejection of the plaint, on the other hand, would terminate the suit, once for all, and the only remedy would be, to prefer a regular appeal. In a given case, the minor may be represented by a guardian also. However, it is not mandatory.
It is only when a minor figures as a defendant, that the Court would appoint a guardian for him. The concept of the ‘next friend’ does not exist, if the minor figures as defendant in a suit.
A detailed procedure is prescribed for appointment of a guardian for a minor, who is shown as a defendant in the suit. The only exercise, which the Court can undertake in a suit, where it is filed by a minor through a next friend, is that it can insist on furnishing of security by the next friend, for payment of all costs, incurred or likely to be incurred by the defendant in such a suit. Rule 2A of Order XXXII reads as under:
A detailed procedure is prescribed for appointment of a guardian for a minor, who is shown as a defendant in the suit. The only exercise, which the Court can undertake in a suit, where it is filed by a minor through a next friend, is that it can insist on furnishing of security by the next friend, for payment of all costs, incurred or likely to be incurred by the defendant in such a suit. Rule 2A of Order XXXII reads as under:
“Rule 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 incurred or likely to be incurred by the defendant.
(2) Where such a suit is instituted by an indigent person, the security shall include the Court-fees payable to the Government.
(3) The provisions of rule 2 of Order XXV shall, so far as may be, apply to a suit where the Court makes an order under this rule directing security to be furnished.”
In its application to the Madras High Court, which, in turn, applies to the State of Andhra Pradesh, the qualifications to be possessed by persons, who are to be declared as ‘next friend’ or ‘guardian’ are prescribed. The provisions read:
“3. Qualifications to be a next friend or guardian.—
(1) Any person who is of sound mind and has attained majority may act as next friend of a minor or as his guardian for the suit:
Provided that the interest of that person is not adverse to that of the minor and that he is not in the case of a next friend, defendant, or in the case of a guardian for the suit, a plaintiff.
(2) Appointed or declared guardians to be preferred and to be superseded only for reasons recorded.—Where a minor has a guardian appointed or declared by competent authority no person other than the guardian shall act as the next friend of the minor or be appointed his guardian for the suit unless the Court considers, for reasons to be recorded, that it is for the minor’s welfare that another person be permitted to act or be appointed, as the case may be.
(3) Guardians to be appointed by Court.—Where the defendant is a minor, the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for the minor.
(3A) A person appointed under sub-rule (3) to be guardian for the suit for a minor shall unless his appointment is terminated by retirement, removal or death continue as such throughout all proceedings arising out of the suit including proceedings in any appellate or revisional Court and any proceeding in execution of a decree.
(4) Appointment to be an application and where necessary after notice to proposed guardian.—
An order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff. The application, where it is by the plaintiff, shall set forth, in the order of their suitability, a list of persons (with their full addresses for service of notice in Form No.11A set forth in Appendix H. hereto) who are competent and qualified to act as guardian for the suit for the minor defendant. The Court may, for reasons to be recorded in any particular case, exempt the applicant from furnishing the list referred to above”.
An elaborate and detailed procedure, to be followed in this regard is prescribed under sub-rules (5) to (11). It is not necessary that the next friend must be a natural guardian or a close relation.
Rule 172 of Civil Rules of Practice mandates that wherever the plaintiff is a minor or is under disability, and it is filed through next friend, the affidavit shall be filed by a disinterested person to the effect that the ‘next friend’ has no direct or indirect interest in the subject-matter of the suit. The provision reads as under:
“Plaint or original petition on behalf of minor:--When a plaint or original petition is presented by a person as the next friend of a plaintiff who is a minor or under disability, he shall at the same time file an affidavit by some disinterested person that he has no interest, direct or indirect the subject-matter of the suit or matter, adverse to that of the plaintiff that he is defendant or respondent in the suit or matter, and that he is a fit and proper person to act as next friend.”
In the instant case, the suit was filed through a next friend and there was compliance with Rule 1 of Order XXXII to that effect.
In case the requirement as to furnishing of security under Rule 2A of Order XXXII, or filing of an affidavit under Rule 172 of the Civil Rules of Practice was not fulfilled, the trial Court could certainly have insisted on the necessary steps being taken. Unfortunately, it has proceeded on the assumption that the suit could not have been filed, except through a guardian, and that when the natural parents are living, no other person could have been appointed as a guardian. The whole approach of the trial Court was erroneous.
In case the requirement as to furnishing of security under Rule 2A of Order XXXII, or filing of an affidavit under Rule 172 of the Civil Rules of Practice was not fulfilled, the trial Court could certainly have insisted on the necessary steps being taken. Unfortunately, it has proceeded on the assumption that the suit could not have been filed, except through a guardian, and that when the natural parents are living, no other person could have been appointed as a guardian. The whole approach of the trial Court was erroneous.
The ‘next friend’ mentioned in Rule 1 of Order XXXII can act only as a person, representing the interests of the minor. Beyond that, he does not have any power to put the interests of the minor at stake. To certain extent, a guardian appointed by the Court, or a person who can act as guardian under law, would have some powers to take certain decisions, for and on behalf of the minor, may be, in a limited scale and subject to control by the Court.
The distinction between the ‘next friend’, on the one hand, and ‘guardian’, on the other hand, is broadly akin to the one, between ‘legal representative’, on the one hand, and ‘legal heir’, on the other hand. The role of ‘legal representative’ in a proceeding is limited to the one of enabling the Court to conclude the proceedings, in the event of the death of a party to the said proceedings. ‘Legal heir’, on the other hand, would inherit and succeed to the estate of the predecessor, which cannot be limited to the dispute in the proceedings. Similarly, ‘next friend’ can do nothing more than keep the grievance of the minor before the Court and seek adjudication, whereas the ‘guardian’ can take certain decisions by himself in the interests of the minor, before or after filing the suit.
It has already been mentioned that the suit was presented through a next friend. There was compliance with Rule 1 of Order XXXII. The lapse if at all was, on the part of the trial Court, in not insisting on security being furnished under Rule 2-A of Order XXXII, or affidavit under Rule 172 of Civil Rules of Practice. Assuming that the lapse is on the part of the next friend, the maximum that the trial Court could have done was, to pass orders, insisting on the steps being taken. When the only consequence that Order XXXII provides, in the event of a suit being filed by a minor, without there being a next friend; is that the plaint be ‘taken off’ the file, dismissal of a suit, filed through a next friend; cannot even be imagined.
The society in general and the legislatures in particular take several steps, to protect the interests of the minors. Special provisions are made and procedures are prescribed. On account of the totally untenable view taken by the trial Court, the interests of the minor girl were subjected to jeopardy. The blame squarely rests upon the trial Court, on the one hand, and the respondents, on the other hand.
The appeal is allowed with costs, quantified at Rs,10,000/- (Ten thousand), and the decree and judgment passed by the trial Court is set aside. The matter is remanded to the trial Court for fresh consideration and disposal. The appellant is accorded permission to comply with the requirements under Rule 2A of Order XXXII C.P.C., and Rule 172 of the Civil Rules of Practice. In case the costs are not deposited or paid to the appellant, to be spent for needs such as, books, clothing; within four weeks from the date on which the matter is listed after remand, the defence of the respondents shall stand struck off.
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L. NARASIMHA REDDY, J.
Dt.07-07-2011.
