LAW FOR ALL

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 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.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, 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. 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.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.