GUARDIAN – NEXT FRIEND : Distinction (Short notes)
In relation to a child, includes any person who, in the opinion of the competent authority having cognizance of any proceeding in relation to a child, has, for the time being, the actual charge of or control over, that child, [Section 2(k), Children Act, 1960 .
Guardian means a person having the care of the person of a minor or his property or of both his person and property, Section 4(2), Guardians and Wards Act, 1890 . Guardian means a person having the care of the person of a minor or of his property or of both his person and property and includes
(i) a natural guardian,
(iii) a guardian appointed or declared by court and
(iv) a person empowered to act as such by or under any enactment relating to any court of wards, Section 4(b), Hindu Minority and Guardianship Act, 1956 .
In relation to a child, means his natural guardian or any other person having, in the opinion of the Committee or, as the case may be, the Board, the actual charge of the child, and recognized by the Committee or, as the case may be, the Board as a guardian in the course of proceedings, [Section 2(31), Juvenile Justice (Care and Protection) Act, 2015. ‘Guardian’ means “a person having the care of the person of a minor or of his property or of both his person and property” and inter alia includes a natural guardian, Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42.
At law, an infant having a guardian might sue by his guardian, as such or by his next friend, though he must always have defended by his guardian. In equity he sued by next friend and not by guardian and defended by guardian ad litem
“Next friend” acts for the benefit of the “minor” or other person who is unable to look after his or her own interests or manage his or her own law suit (person not sui juris) without being a regularly appointed guardian as per Hindu Guardianship Act. He acts as an officer of the Court, especially appearing to look after the interests of a minor or a disabled person whom he represents 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 XXXII of the Code. Order XXXII Rules 1 and 3 of the Code 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. In case, where the suit 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. See. Nagaiah v. Chowdamma, (2018) 2 SCC 504.
The Madras High Court in Kaliammal, minor by Guardian, Patta Goundan v. Ramaswamy Goundan, AIR 1949 Mad. 859 observed that there is no need of sanction of the Court for a next friend to sue, if he is not incapacitated. This was also the view taken by the High Court of Allahabad in K. Kumar v. Onkar Nath, AIR 1972 All. 81. The Kerala High Court upheld the same in no uncertain terms in Gopalaswamy Gounder v. Ramaswamy Kounder, AIR 2006 Ker 138. In that case, the High Court observed that any person who does not have any interest adverse to that of the minor can figure as his next friend. It held as follows:
“Law does not contemplate the appointment of a next friend for a minor who institutes a legal proceeding either as a Plaintiff or as a Petitioner. The object of a minor being represented through a next friend is only for the purpose of enabling the opposite party to look upon the next friend for costs, if any, ordered against the minor…” Where the minor institutes a proceeding as a Plaintiff or applicant any person who does not have any interest adverse to that of the minor can figure as his next friend. The mere fact that the minor’s mother Selvi was appointed as the guardian of the minor in execution proceedings where the minor was impleaded as an additional Respondent, will not disable Gopalaswamy Kounder from styling himself as the next friend of the minor for the purpose of filing the petitions under Order 21, Rule 90 Code of Civil Procedure There was absolutely no necessity for the next friend to seek his appointment as the next friend nor was the court below justified in dismissing the said application. Even in a case where the proceedings are instituted by the minor through his next friend, the real Plaintiff or applicant is the minor himself and not the next friend.”
Not only, is there no provision for appointment of next friend by the Court, but the permission of the Court is also not necessary. However, even in respect of minor defendants, various High Courts are consistent in taking the view that the decree cannot be set aside even where certain formalities for the appointment of a guardian ad litem to represent the defendant have not been observed. The High Courts have observed in the case of minor defendants, where the permission of the Court concerned under Order XXXII Rule 3 of the Code is not taken, but the decree has been passed, in the absence of prejudice to the minor defendant, such decree cannot be set aside. The main test is that there has to be a prejudice to the minor defendant for setting aside the decree. For reference, see the cases of Brij Kishore Lal v. Satnarain Lal & Ors., AIR 1954 All. 599, Anandram & Anr. v. Madholal & Ors. AIR 1960 Raj. 189 Rangammal v. Minor Appasami & Ors. AIR 1973 Mad.12, Chater Bhuj Goel v. Gurpreet Singh AIR 1983 Punjab 406 & Shri Mohd. Yusuf and Ors. v. Shri Rafiquddin Siddiqui. ILR 1974 (1) Delhi 825.
“Guardian” as defined under the Hindu Guardianship Act is a different concept from the concept of “next friend” or the “Guardian ad litem”. Representation by “next friend” of minor plaintiff or by “guardian ad litem” of minor defendant is purely temporary, that too for the purposes of that particular law suit. But such guardian should not have adverse interest against minor. If the natural guardian or the duly constituted guardian has adverse interest against the minor in the law suit, then a next friend or guardian ad litem, as the case may be, would represent the minor in the civil litigation.
It is by now well settled and as per the provisions of Order XXXII of 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 XXXII of the Code specifically provide that the next friend or guardian in the suit shall not 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 XXXII 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 XXXII of the Code. Rule 9 of Order XXXII – 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. Order XXXII, Rules 12, 13 and 14 of the Code empower the minor plaintiff to take a decision either to proceed with the suit or to abandon the suit, after attaining majority. Thus, after attaining majority, if the plaintiff elects to proceed with the suit, he may do so by making an application, consequent upon which the next friend ceases to represent the minor plaintiff from the date of attaining majority by the minor. Order XXXII Rule 12 of the Code requires the minor plaintiff to have the option either to proceed with the suit or to abandon the suit and does not at all provide that if no such election is made by the minor plaintiff on attaining majority, the suit is to be dismissed on that ground. In case, if the Court discovers during the pendency of the suit that the minor plaintiff has attained majority, such plaintiff needs to be called upon by the Court to elect whether he intends to proceed with the suit or not. In other words the minor who attained majority during the pendency of the matter must be informed of the pendency of the suit and in the absence of such a notice the minor cannot be imputed with the knowledge of the pendency of the suit.
The principles arising out of the Guardians and Wards Act, 1890 and the Hindu Guardianship Act may not be apposite to the next friend appointed under Order XXXII of the Code. The appointment of a guardian ad litem to represent the defendant or a next friend to represent the plaintiff in a suit is limited only for the suit and after the discharge of that guardian ad litem/next friend, the right/ duty of guardian as defined under subsection (b) of Section 4 of the Hindu Guardianship Act (if he has no adverse interest) automatically continues as guardian. In other words, a next friend representing the minor in the suit under Order XXXII, Rule 1 of the Code, will not take away the right of the duly appointed guardian under the Hindu Guardianship Act as long as such guardian does not have an adverse interest or such duly appointed guardian is not removed as per that Act. See. Nagaiah v. Chowdamma, (2018) 2 SCC 504.