Settled principle is that minor cannot sue and cannot be sued. Therefore, it has been made compulsory that minor plaintiff and defendant should be represented by proper and fit person in some litigation. When some suit is to be instituted by minor plaintiff, such suit is instituted in minor plaintiff’s name by his next friend. Similarly when some suit is instituted against minor defendant, guardian for suit is appointed for such minor defendant and such guardian is called guardian ad litem.
2. Relevant Provisions
Following are the relevant provisions regarding manner in which suit against minor can be instituted.
Order 32 Rule 1, 3, 4 of Civil Procedure Code.
3. Object of having next Friend or Guardian Ad-Litem
A minor is deemed incapable of prosecuting or defending a suit himself, it is necessary that his interest in the suit should be watched by an adult person. Such person is, in the case of a minor plaintiff called his next-friend and in the case of a minor defendant his guardian ad-litem or guardian for the suit.
4. Next Friend
“The person, who represents a minor plaintiff in a suit or proceeding, is called next friend of the minor”.
5. Guardian Ad-Litem
Where the defendant is minor, that Court, on being satisfied by the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor.
6. Manner in which suit against Minor can be instituted
A suit against minor can be instituted through his guardian appointed by the Court i.e guardian ad-litem.
7. Mode of making appointment
The appointment of a guardian is made by the court either.
a. Application by Plaintiff
It is the duty of the plaintiff to apply for the appointment of minor defendant’s guardian.
i. List furnished by plaintiff
The plaintiff shall file with his plaint a list of relatives of minor and other person who can be appointed as guardian and such list shall constitute an application by the plaintiff.
ii. Application by Defendant
A guardian may be appointed by the court where the defendant pleads minority. Where the fact of minority is disputed it is the court who shall determine it.
8. Verification by Affidavit
Any application whether it is made by plaintiff, or by defendant or a list furnished by plaintiff must be supported by an affidavit, verifying the fact that the proposed guardian has no interest in the suit adverse to that of a minor and that he is a fit person to be appointed.
9. Notice to the Guardian
Before appointing a guardian court must serve a notice to the minor as well as to the natural guardian of the minor or father or guardian appointed by competent authority or person in whose care the minor is as the case may be.
10. Person who can be appointed as Guardian
Following person can be appointed as guardian ad-litem of the minor.
a. Any mature and sound person
Generally any person of sound mind who has been of 18 years or above may be appointed as a guardian.
i. A plaintiff cannot be appointed as a guardian of the minor.
ii. A person whose interest is adverse to that of minor cannot be appointed as guardian.
b. Guardian appointed by competent authority
where minor has guardian appointed or declared by competent authority than such person shall act as guardian for the suit.
Court may appoint any other person for reasons to be recorded if it considers that it in the interest and welfare of minor.
c. Relative of the Minor
Where no guardian appointed by competent authority than the court may appoint a relative of the minor as his guardian for the suit.
Where minor has also co-defendants court shall appoint any of the co-defendants as his guardian if no near relative of the minor is found.
e. Pleader of the Court
Any person or pleader of the court may be appointed as a guardian for the suit but he will be appointed only, where there is no other person fit and willing to act as such.
11. Consent of the Guardian Appointed
Court cannot appoint any person as guardian without his consent and such consent may be presumed by the court unless it is expressly refused.
To conclude, that according to law minor is a person, under legal disability he cannot sue and be sued in his own name. A usit against minor can only be filed through his guardian appointed by the court which is mandatory is nto considered to be a party to the suit, unless he is represented by guardian party ad-litem and any decree obtained against minor defendant guardian is nullity in the eye of law.