Code of Civil Procedure, 1908 | O. 32 Suit by or against Minors and Persons of Unsound Mind

Rule 1. Minor to sue by next friend.- 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.

Explanation - In this order "minor" means a person who has not attained his majority within the meaning of section 3 of the Indian Majority Act, 1875, where suit relates to any of the matters mentioned in claused (a) and (b) of section of that Act or to any other matter.

NOTES:

* Rule 1 – suit filed by or against minor or person of unsound mind – suit can be instituted through another person called the next friend – when suit is filed without next friend plaint is to be taken off the file – such suit is not to be dismissed and when minor or person of unsound mind is properly presented the suit must continue – held further, mere mis description of title cannot lead to dismissal of suit.
Amrutaben Budhaji Thakore v. Nitaben Somabhai Patel, 2003(2) GLR 1051

* Suit filed by Worshipper of Hindu Deity as next friend is maintainable under this provision.
Bhagwati Prasad v. Laxminathji, AIR 1985 All. 228

* Suit by a next friend who is incompetent should not be dismissed. The real point is whether the suit is in minor interest.
Muthu v. Muthuswami, 1933 MWN 893

* When a defendant against whom suit is instituted is aware of the minority of plaintiff and elects to proceed to trial without any objection, he cannot be allowed to contend that the suit was nullity. The same is amount to irregularity which can be waived by a defendant.
Narpat v. Babulal, AIR 1964 Raj. 92

* The rule is for the protection of the defendant, he can waive the appointment of next friend.
Doorga v. Tahir, The Indian Law Reports 22 Calcutta 270