EDITED - Suit by or Against Person of Unsound Mind

 

INTRODUCTION:

The word ‘suit’ has wider application. There is a little difference between the suits under the CPC CP C 19 1908 08 an and d the the othe otherr ci civi vill su suit its. s. This This is un under der the CPC CPC th thee su suit itss is in inst stit itut uted ed by th thee  presentation of the plaint which has particular format and in other suits like the suit for divorce, the same is instituted by mere presentation of the petition by or on behalf of either spouse. It should be mentioned that ‘suit’ is different from the ‘writs’. Suit is instituted to enforce the legal rights (not the political and religious) only; but the ‘writs’ are concerned with the enforcement of  the Fundamental Rights guaranteed by Part III of the Indian Constitution. Only the High Courts and the Supreme Court have the Writ jurisdiction governed by the Indian Constitution. 1 ‘Suit’: Meaning within the purview of the Civil Procedure Code, 1908. The term ‘suit’ has not  been defined in the Civil Procedure Code, 1908. According to Chamber’s 20th Century Dictionary (1983), it is a generic term of comprehensive signification referring to any proceeding  by one person or persons against another or others in a court of law wherein the plaintiff pursues the remedy which the law affords him for the redress of any injury or enforcement of a right, whetherr at law or in equity. In the Black’s whethe Black’s Law Dictionary Dictionary (7th Edition) Edition) this term is defined as the proceeding initiated by a party or parties against another in the court of law. According to some other views, ‘suit’ includes appellate proceeding also; but it does not include an execution  proceeding. Ordinarily, suit under the CPC is a civil proceeding instituted by the presentation of  a plaint.2 Section 26(1), CPC says that every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. Sub-section (2) provides that in every plaint, facts shall  be proved by affidavit. The procedural framework relating to the institution of a suit is give  below:3 i. Preparing the plaint ii. Choosing the proper place of suing iii. Presentation of the plaint 1

 Legal service India.com, Available at: http://www http://www.legalservices .legalservicesindia.com/arti india.com/article/2212/Institu cle/2212/Institution-of-Suit-an tion-of-Suit-and-itsd-itsEssentials.html. 2  Legal service India.com, Available at: http://www http://www.legalservices .legalservicesindia.com/arti india.com/article/2212/Institu cle/2212/Institution-of-Suit-an tion-of-Suit-and-itsd-itsEssentials.html. 3  Ibid.

 

There are four essentials of a suit 4 Name of Parties (there must be two opposing parties) – In a suit there must be at least two

 parties the plaintiff & the defendant. There is no limitation limitation with regards to number on either side. Cause of Actions – it is a set of facts or circumstances that a plaintiff is required to prove. A

 person is party to a suit if there is a cause of action against him. The cause or the set of events or  circumstances which leads or resulted into presentation of a plaint or filing a suit. – lay man language Legally – The cause of action means every facts which is necessary for the plaintiff(s) to be

 proved with a view to obtain a decree in his favour. Cause of action means all essential facts constituting the right and its infringement. Every plaint must disclose a cause of action if not, it is the duty of the court to reject the plaint – O.7, R.11 Subject matter – there must be a subject matter (with what respect or aspect civil dispute dispute is).

Section-9. Courts to try all civil suits unless barred. The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their  cognizance is either expressly or impliedly barred. Explanation I: A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.5 Explanation II: For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a  particular place.6  Relief claimed by the plaintiff – no court will give relief unless relief is specifically claimed by

the party

4

Supplement to Mulla’s Code of Civil Procedure (14th ed., Bombay: N.M.Tripati Private Limited,  P.M.Bakshi, Supplement 1992). 5 6

 Ibid.  Ibid.

 

Relief is of two types-7 1) Specific relief and 2) Alternative relief. Order XXXII of the Code of Civil Procedure, 1908 deals with SUITS BY OR AGAINST MINORS AND PERSONS OF UNSOUND MIND. Order XXXII contains special provisions applicable only in cases where either the suit is: To be instituted at the cause of a minor/person of unsound mind To be instituted against a minor/person of unsound mind In the Code of Civil Procedure, the main object behind the enactment of order XXXII is the  protection of the interests of minors and persons of unsound mind. The origin behind this concern rests in common law. The Common Law position is that persons who are unable to understand the nature and consequences of their actions 8  ought not to be liable liable for their actions actions so undertaken. This legal position stands firm even today except where his status in that as a cestui qui trust.9

Who is of Unsound Mind?

A person of unsound mind is a person who is declared after competent examination to be unable to understand the nature and consequence of his actions due to the presence of a mental disease or infirmity. Rules 1 - 14 of Order XXXII apply not only to minors and persons, adjudged to be of unsound mind, but also, those, who are found to be, by a Court upon inquiry to be incapable, by reason of  any mental infirmity, of protecting their interest when suing or being sued. This is based on the natural law principle that both parties to a suit must be heard equally before a suit is adjudicated 7

 Ibid.  Edward Coke, Institutes Of the Lawes of England 291 (1644). 9  Legal service India.com, Available at: http://www http://www.legalservices .legalservicesindia.com/arti india.com/article/2212/Institu cle/2212/Institution-of-Suit-an tion-of-Suit-and-itsd-itsEssentials.html. 8

 

up upon. on.  In Ram Chandra v. Man Singh it was held that a decree passed against a minor or a lunatic without appointment of a guardian is a nullity and void, not merely voidable. 10 Now that the origin of the concerned aspect of law is intelligible, it next becomes important to describe who it pertains to.11 The next legal problem that arises is how best to ensure that such disadvantaged persons are not taken advantage of by means of vexatious litigation or misuse of provision. This was addressed  by the concept of next friend or guardian. The concept is framed on the assumption that a next fr frie iend nd or guar guardi dian an,, be bein ing g an ad adul ultt of re reas ason onab able le pr prud uden ence ce wi will ll ac actt to en ensu sure re th that at th thee disadvantaged person’s interests are not misdirected. Suit by or against person of unsound mind: 1. Admission of next friend to bring a suit formal order unnecessary —When a suit is

 brought on behalf of unsound mind, the next friend shall make an affidavit, to be presented with the plaint in the suit, that he has no interest directly or indirectly adverse to that of the unsound  person, and that he is otherwise a fit and proper person to act as such next friend. 2. Next friend to file address for service —(a) The next friend shall file along with the plaint a

memorandum in writing stating his address for service. (b) If the next friend fails to file his address for service as aforesaid or within such further time as the Registrar may allow, the plaint shall not be admitted. 3. List of all likely guardians guardians ad litem to be filed —(a) In suits where the defendant is a minor,

the plaintif plaintifff shall shall file file with with the plaint plaint a list list of relati relatives ves and all other person personss with with correc correctt addresses, who prima facie are most likely to be capable of acting as guardian for the minor  defendant in the suit. (b) A notice shall issue simultaneously to all such persons, single process fee being levied. Such  persons shall be deemed to be unwilling to act as guardian ad litem, if, after service of notice, they fail to appear on date fixed.

10

 Ram Chandra v. Man Singh AIR 1968 SC 954. 11  Legal service India.com, Available at: http://ww http://www.legalservice w.legalservicesindia.com/arti sindia.com/article/2212/Institu cle/2212/Institution-of-Suit-a tion-of-Suit-and-itsnd-itsEssentials.html.

 

(c) If the persons specified in the list filed under sub-rule (1) are unwillingly act as guardian ad litem, the Registrar may, it there be more defendants than one and their interests are not adverse to the minor, appoint one of such defendants who may be willing to act as guardian ad litem; or  may appoint forthwith one of the officers of the Court as such guardian ad litem. 4. Address for service of guardian ad litem —Every guardian ad litem of a defendant other  than an officer of the Court, shall, withi within n seven days of the order of his appointment appointment as such or 

within such further time as the Registrar may allow, file in Court a memorandum in writing stating his address for service. Failure on his part to do so may be deemed sufficient ground for  removing him under Rule II of Order XXXII of the Code. 5. Application of Rules 1 to 4 to persons of unsound mind and to appeals and applications

 —The provisions contained in this Chapter so for they may be applicable extend mutatis mutandis to persons adjudged to be of un-sound mind and to persons who, though not so adjudged are found by the Court, on enquiry to be incapable of protecting their interests when suing or being sued by reason of unsoundness of mind or mental infirmity. These provisions shall apply to appeals and applications connected therewith. Concept of Next Friend/ Guardian:

The object behind having a next friend or guardian ad litem is that an unsound person is deemed to be incapable incapable of defending defending himself and therefore therefore it is imperative imperative that his interests interests in the suits suits should be supervised by an adult person. This person, in case the unsound person is a plaintiff, is to be called the next friend and when the unsound person person is a defendant, defendant, is called a guardian ad litem or guardian for the suit. However, neither the next friend nor guardian ad litem is a party to the suit.12 The power of the person so assigned is limited to the proceedings for which he is recognized by the court.13 Every suit by an unsound mind should be instituted in his name through his guardian or  next friend. 14   If the same is not done, the plaint will be taken off the file. 15   Any person

12 13

 Rup Chand v. Dasodha, (1908) ILR 3 All 55.  RB Mishra v. State, AIR 1983 Pat 250.

14 15

 Order XXXII, Rule 1, Code of Civil Procedure, 1908  Order XXXII, Rule 2, Code of Civil Procedure, 1908.

 

who has attained majority and is of sound mind 16 , may act as a guardian or next friend,  pr ov id e d hi s in t er e st is no t ad ve rs e to th at of mi no r , wh o is no t th e op po si te pa r ty in th e suit and who gives consent in writing to act as a guardian or next friend.

17

 Rule 5 of Order 

XXXII states that every representation representation made before the court other than under Rule 10(2) mus t be made by hi s next fri end or guardi an. 18   Where an order i s pas s ed wi t hout s uch representation, the same may be discharged with. 19

In a recent case, namely, in Nagaiah v. Chowdamma,20 the Supreme Court held that “It is by now well settled and as per the provisions of Order 32 of the 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 32 of the Code specifically specifically provide that the next friend friend or guardian guardian in the suit shall not without 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 32 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 32 of the Code. Rule 9 of Order 32, 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.” The Supreme Court further held that Order 32 Rules 1 and 3 of the CPC 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. It was held that in case, where the suit 16

 Order XXXII, Rule 4, Code of Civil Procedure, 1908  Order XXXII, Rule 4, Code of Civil Procedure, 1908 18  Ibid. 17

 Order XXXII, Rule 5, Code of Civil Procedure, 1908.  (2018) 2 SCC 504.

19 20

 

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. It was also clarified by the Supreme Court that a bare reading of Order 32 Rule 1 of the CPC 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 clause (b (b) of Section 4 of the Hindu Minority and Guardianship Act. “Next friend” acts for the benefit of the “minor” without being a regularly appointed guardian as per the Hindu Minority and Guardianship Act. He acts as an officer of the court, cou rt, especial especially ly appeari appearing ng to loo look k after after the interest interestss of a minor minor whom whom he repres represent entss in a  particular matter. The aforesaid 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 32 of the Code. The Supreme Court also highlighted that “Guardian” as defined under the Hindu Minority and Guardianship Act is a different concept from the concept of “next friend” or the “guardian ad lite li tem” m” under under Or Orde derr 32 of CPC. CPC. Repr Repres esent entat atio ion n by “next “next fr frie iend nd”” of mi mino norr pl plai aint ntif ifff or by “guardian ad litem” of minor defendant is purely temporary, that too for the purposes of that  particular law suit. Thus, it is not necessary that the minor is to be represented by a guardian as appointed under the Hindu Hin du Minori Minority ty and Guardi Guardians anship hip Act. Act. A minor minor plaint plaintiff iff can be repres represent ented ed by the next   friend  (who  (who may or may not be his guardian under the said Act) and a minor defendant can be

represented by a guardian ad litem appointed under Rule 3 of the Order 32 (who, again, may or  may not be his guardian under the Hindu Minority and Guardianship Act). As held by the Supreme Supreme Court in the aforesaid aforesaid case, 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 plaintiff as

 

his next friend. Same principle applies to a person who can be appointed as a guardian to represent a minor defendant. Moreover, as mentioned above, as per Rule 2 of Order 32, if a suit by minor is instituted without the next friend, the plaint would be taken off the file. Thus, it is necessary for a minor to have a next friend or a guardian in a civil suit, wherein he is a plaintiff or a defendant, as the case may  be. Cases on Suit by or against the person of unsound mind:

The suit for cancellation of sale-deed has been filed by Lakhpat Singh as next friend of Dharm Veer Singh claiming him to be a person of unsound mind. It is disputed as to whether at the time the plaintiff plaintiff Dharam Veer Singh was a person of unsound mind or not and of institution of suit the unsound nd mind, mind, neither neither Lakhpat Singh undoubtedly, if Dharam Veer Singh was not a person of unsou nor nor anyb anybod ody y else else coul could d have have ac acte ted d as his his next next fr frie iend nd or guar guardi dian an nor nor coul could d have have instituted suit for and on his behalf. However, as far as the competency of Lakhpat Singh, to work as next friend/guardian of Dharam Veer Singh and to file suit for and on his behalf, in case of his being a person of unsound mind is concerned, there may hardly be any dispute as to his competency on account of his being cousin brother, despite the fact that his wife was alive and was equally competent to act as his next friend. 21 From above provisions contained in Order XXXII Rule 15 C.P.C, it is crystal clear that in case of  a person of unsound mind, the same procedure will be applicable, which is applicable in the cases of suits by or against minors. So for filing suit as next friend, two conditions are required to  be fulfilled viz. 22 unsound d mind at the time of institut institution ion (1) The plaint plaintiff iff should should be a minor minor or per person son or of unsoun of suit and (2) The person acting as his next friend/guardian should be major and of sound mind, and should neither have any interest adverse to the interests of minor or person of unsound mind nor should  be defendant in that suit.

 Nathu Singh & Another vs Srimati Rajvati & Others AIR 2016.  Nathu Singh & Another vs Srimati Rajvati & Others AIR 2016.

21 22

 

In the case of  Somnath vs Tipanna Ramchandr 23  the plaintiff is described in the plaint as a major person aged 35 but of unsound mind, or a person incapable of taking care of his own affair aff airss and, therefor therefore, e, sued sued through through the next friend, friend, his wife. wife. The provis provision ionss regard regarding ing the  presentation and prosecutions of suits on behalf of minors and persons of unsound mind are dealt with in Order 32 of the Code of Civil Procedure. We would, therefore, in the first instance refer  to the provisions of the Civil Procedure Code in that behalf of the correct procedure that ought to  be followed when the plaintiff is alleged to be either a minor or a person of unsound mind. Suit for cancellation of sale deed by Guardian or next friend of lunatic. Plaintiff suffering from mental infirmity represented by his wife in suit for cancellation on ground that he himself not enter into any agreement and sale deed being result of fraud. The Scope of enquiry under Order  32 limited to appointment of next friend or guardian. Husband is duly represented by his wife. There is no need of further enquiry to be made in mental condition of plaintiff. Rules 1 to 14 (except Rule 2A) to apply to persons of unsound mind.--Rules 1 to 14 (except Rule 2A) shall, so far as may be, apply to persons adjudged before or during the pendency of the suit, to be of unsound mind and shall also apply to persons who, though not so adjudged, are found by the Court on enquiry to be incapable, by reason of any mental infirmity, of protecting their  interest when suing or being sued." 24 Conclusion:

Every suit by a minor shall be instituted in his name by a person who in such shall be called the next friend of the minor.   Order XXXII is another example of exemplary legal framework which is part of a larger code and process of litigation that has been operating since the inception of the Code in 1908. The rules under the order have also been amended from time to time to ensure that relevance is maintained. Situations such as fraud, collusion and adverse 25  interest have been considered. The judicial opinion opini on as to negligence negligence of guardian have changed over time26 and is an interesting field where there is more scope to expand minor’s rights. However, Order XXXII is quite complete in its 23

 Somnath vs Tipanna Ramchandra Jannu AIR 1972.  G.V.Lakshminarayanan vs G.V.Nagammal AIR 2007. 25  Order XXXII Rule 9 Code of Civil Procedure 1908. 24

 Tikaram v. Tarachand, 1953 ILR Nag 1911.

26

 

treatment of the legal problem on how to ensure fair representation of minors and persons of  unsound mind.

REFERENCES:

1. Universal Code of Civil Procedure 1908, 19 08, Bare Act. 2. The Code of Civil Procedure, Central Law Agency by S. N. Singh. 4. Civil Procedure 1908 by C K Takwani. 3.

http://www.legalserviceindia.com/legal/article-2745-suits-by-or-against-minors-and-persons-

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