No Permission/Leave Of The Court Necessary For ‘Next Friend’ To Institute Suit On Behalf Of Minor: SC [Read Judgment]
The guardian ad litem is appointed by court and whereas the next friend is not, the bench said.
On the question of procedure of filing suits on behalf of minors, the Supreme Court, in Nagaiah v Chowdamma, has held that there is neither any provision for appointment of next friend by the court nor the permission of the court is necessary for such appointment.
A bench of Justice Arun Mishra and Justice Mohan M Shantanagoudar set aside a Karnataka High Court judgment that had dismissed a suit filed by a minor through his elder brother on the ground that the elder brother could not act as the guardian of the minor during the lifetime of the father of the minor, as the elder brother was not appointed as a guardian of the minor by any competent court.
The court said the high court ‘totally misdirected’ itself by relying upon Section 4(b) of the Hindu Minority and Guardianship Act. “But the present facts are not governed by the provisions of Hindu Guardianship Act; rather they are governed by Order XXXII of the Code of Civil Procedure,” the bench said.
The court, referring to various provisions of the Civil Procedure Code, observed that the next friend need not necessarily be a duly appointed guardian as specified under the Hindu Guardianship Act. It observed that “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 the Hindu Guardianship Act.
The court then said that 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.
The bench also quoted a Kerala High Court order, Gopalaswamy Gounder v Ramaswamy Kounder, that held that any person who does not have any interest adverse to that of the minor can figure as his next friend.
The court summarised its discussion on the subject as follows: “Instituting a suit on behalf of minor by a next friend or to represent a minor defendant in the suit by a guardian ad litem is a time-tested procedure which is in place to protect the interests of the minor in civil litigation. The only practical difference between a “next friend” and a “guardian ad litem” is that the next friend is a person who represents a minor who commences a lawsuit; guardian ad litem is a person appointed by the Court to represent a minor who has been a defendant in the suit. Before a minor commences suit, a conscious decision is made concerning the deserving adult (next friend) through whom the suit will be instituted. The guardian ad litem is appointed by Court and whereas the next friend is not. The next friend and the guardian ad litem possess similar powers and responsibilities. Both are subject to control by the Court and may be removed by the Court if the best interest of the minor so requires.”Read the Judgment Here