Lawzonline.com 
 
Home|Discussion Forum|Communities|Professional Search|Law Dictionary|Bare Acts|Law Schools|State Bare Acts|Free Judgement Search|Law quotes
Articles  |    Humor    |    Law Digest
 
 
Bare acts search

 
  
Bare acts > Code of Civil Procedure, 1908 > Order 32 Rule 4
 
  


 

4. Who may act as next friend or be appointed guardian for the Suit.- (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 such person is not adverse to that of the minor and that he is not, in the case of a next friend, a defendant, or, in the case of a guardian for the suit, a plaintiff.

(2) Where a minor has a guardian appointed or declared by competent authority, no person other than such 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) No person shall without his consent in writing be appointed guardian for the suit.

(4) Where there is no other person fit and willing to act as guardian for the suit, the court 4 may appoint any of its officers to be such guardian and may direct that the costs to be incurred by such officer in the performance of his duties as such guardian shall be borne either by the parties or by any one or more of the parties to the suit, or out of any fund in court in which the minor is Interested, or out of the property of the minor and may give directions for the repayment or allowance of such costs as justice and the circumstances of the case may require.


HIGH COURT AMENDMENTS

A1lahahad.- Substitute the following for Rule 4:

“(1) Where a minor has a guardian appointed or declared by competent authority an person other than such guardian shall act as next friend except by leave of the Court.

(2) Subject to the provisions of sub-rule (1) any person who is of sound mind and has attained majority may act as next friend of a minor unless the interest of such person is adverse to that of the minor or he is a defendant or the Court for other reasons to he recorded considers him unfit to act.

(3) Every next friend shall except as otherwise provided by clause (5) of this rule be entitled to be reimbursed from the estate of the minor any expenses incurred by him while acting for the minor.

(4) The Court may in its discretion for reasons to be recorded award cost of the suit or compensation under Section 85-A or Section 95 against the next friend personally as if he were a plaintiff.

(5) Costs or compensation awarded under clause (4) shall not be recoverable by the guardian from the estate of the minor unless the decree expressly directs that they shall be so recoverable,” (24.7.1926).

Andhra Pradesh, Madras and Karnatka.- Delete Rule 4.

Assam and Calcutta.- Substitute Except as otherwise provided in the order “for” where there is no other person fit and willing to act as guardian for the suit.”

Himachal Pradesh and Punjab.- (1) Insert new sub-rule (2) (a). “Where a minor defendant has no guardian appointed or declared by competent authority the Court may subject to the proviso to sub-rule (I) appoint as his guardian for the suit a relative of the minor. If no person be available who is a relative of the minor the Court shall appoint one of the other defendants if any and failing such other defendant shall ordinarily proceed under sub-rule (4) of this rule to appoint one of its officers or a pleader.”

(ii) Add to sub-rule (3) as follows:

“but the Court may presume such consent to have been given unless it is expressly refused.”

(iii) In sub-rule (4) after the word “officers” insert “or a pleader” and for “officer” substitute “person”.

Kerala.- (i) Add in the end of sub-rule (3):

“Whenever an application is made proposing the name of a person as a guardian for the suit a notice in Form No. 11-A, set forth in Appendix H hereto shall he served on the proposed guardian unless the applicant himself be the proposed guardian or the proposed guardian consents.”


(ii) Add Explanation sub-rule (4)


Explanation - An officer of the Court shall for the purpose of this sub-rule include a pleader of the Court.

(iii) Add sub-rule (5):

“When guardian for the suit of a minor defendant is appointed and it is made to appear to the Court that the Guardian is not in possession of any or sufficient fund for the conduct of the suit on behalf of the defendant and the defendant will be prejudiced in his defence thereby the Court may from time to time order the plaintiff to advance money to the guardian for the purpose of his defence and all moneys so advanced shall form part of the cost of the plaintiff in the suit. The order shall direct that the guardian as and when directed shall file in Court an account of the moneys so received by him.”

Madhya Pradesh.- Substitute Rule 4 as follows:

“(1) Andy 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 such person is not adverse to that of the minor and that he is not in the case of a next friend, a defendant or in the case of a guardian for the suit a plaintiff.

(2) Where a minor has a guardian appointed or declared by competent authority no person other than such guardian for the suit unless the Court considers for reasons to be recorded that it is for the minors welfare that another person be permitted to act in either capacity.”

Orissa and Patna.- In sub-rule (4) for the words “when there is no other person fit and willing to act as guardian for the suit” in the first sentence substitute “when the person whom the Court after hearing objection if any under sub-rule (4) of Rule 3 proposes to appoint as guardian for the suit fails within the time fixed in the notice to him to express his consent to be so appointed.’

Rule 4-A

Allahabad.- Add the following Rule 4-A:

“Rule 4-A (1) Where a minor has a guardian appointed by competent authority no person other than such guardian shall 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 appointed.

(2) Where there is no such guardian, or where the Court considers that such guardian should not be appointed, it shall appoint as guardian for the suit the natural guardian of the minor, if qualified, or where there is no such guardian, the person in whose care the minor is, or any other suitable person who has notified that Court of his willingness to act, or failing any such person, an officer of the Court.

Explanation - An officer of the Court shall for the purposes of this sub-rule include a legal practitioner on the roll of the Court.

(3) No person shall without his consent be appointed guardian for the suit: Provided that in all cases the consent of such person shall be presumed, unless eithin fifteen days of receipt of notice from the Court, he notifies to the Court his refusal to accept appointment as such guardian. Refusal to accept notice shall be presumed to be refusal to act.

(4) Where an officer of the Court is appointed guardian for the suit under sub-rule (2) the Court may direct that the costs to be incurred by such officer in the performance of his duties as such guardian shall be borne either by the parties or by any one or more of the parties to the suit, or, out of any fund in Court in which the minor is interested and may give directions for the repayment or allowance of such costs as justice and the circumstances of the case may require.”

Madhya Pradesh.- Add the following Rule 4-A:

“4-A Procedure for appointment of guardian for the suit..— (1) No person, except the guardian appointed or declared by competent authority, shall, without his consent, be appointed guardian for the suit.

(2) 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.

(3) Unless the Court is otherwise satisfied of the fact that proposed guardian has no interest adverse to that of the minor in the matters in controversy in the suit and that he is a fit person to be so appointed, it shall require such application to be supported by an affidavit verifying the fact.

(4) No order shall be made on any application for the appointment as guardian for the suit of any person other than a guardian of the minor appointed or declared by competent authority, except upon notice to the proposed guardian for the suit and to any guardian of the minor appointed or declared by competent authority, or, where there is no such guardian, the person in whose care the minor is, and after hearing any objection that may be urged on a day to be specified in the notice, the Court may, in any case, if it thinks fit, issue notice to the minor also.

(5) Where, on or before the specified day, such proposed guardian fails to appear and express his consent to act as guardian for the suit, or, where he is considered unfit, or disqualified under sub-rule (3), the Court may, - in the absence of any other person, fit and willing to act, appoint any of its ministerial officers, or a legal practitioner is appointed guardian for the suit, the Court shall pass an order stating whether he is to conduct the case himself or engage another legal practitioner for the purpose.

(6) In any case in which there is a minor defendant, the Court may direct that a sufficient sum shall be deposited in Court by the plaintiff from which sum the expenses of the minor defendant in the suit including the expenses of a legal practitioner appointed guardian for the suit shall be paid. The costs so incurred by the plaintiff shall be adjusted in accordance with the final order passed in the suit in respect of costs.”

 

 

 

 

 

A | B | C | D | E | F | G | H | I | J | K | L | M | N | O | P | Q | R | S | T | U | V | W | X | Y | Z

 

Quick Links     
      
Family LawsInsurance LawsEnvironmental lawTax LawFDI 
Company LawTelecommunication LawLabour LawsCentral RulesRBI 
Business & Commercial LawsConsumer lawsCorporate lawsCriminal lawsSEBI 
Intellectual Property lawMedia & Press lawsPharma & Medical lawsProperty lawFEMA 
Debt Recovery LawsAmendmentsProfessional lawBanking LawsLegal Links 
      
      
 
 
 
 
 

 
   
 

 

 

Privacy PolicyDisclaimer

Copyright @2010