Suits by and against Minors, Corporations, Firms and Others

In one line

Some people cannot sue or be sued in the ordinary way, either because the law does not treat them as competent, or because they are not a natural person at all, and Orders XXVIII to XXXII say how each of them appears in court.

The four situations, and the idea behind each

A minor or a person of unsound mind cannot conduct litigation, so the Code supplies a human being to do it for him and then supervises that person closely. Order XXXII.

A corporation is a person in law but not in fact, so the Code says who may sign for it and on whom process may be served. Order XXIX.

A firm is not a legal person at all, and the Code allows the convenience of suing in the firm name while preserving the reality that the partners are the parties. Order XXX.

A trustee, executor or administrator represents others, so the Code allows him to sue and be sued without joining the beneficiaries. Order XXXI.

Order XXXII: minors and persons of unsound mind

Rule 1: every suit by a minor shall be instituted in his name by a person who shall be called the next friend of the minor. The Explanation provides that "minor" means a person who has not attained majority within the meaning of section 3 of the Indian Majority Act 1875.

So a minor plaintiff sues in his own name, and the next friend is the person who conducts the suit. The minor is the party; the next friend is not.

Rule 2(1): where a suit is instituted by or on behalf of a minor without a next friend, the defendant may apply to have the plaint taken off the file, with costs to be paid by the pleader or other person by whom it was presented. Rule 2(2) requires notice of that application to be given to that person and the Court to hear his objections.

Note where the costs fall. Not on the minor, who did nothing, but on the adult who put the plaint in.

Rule 2A allows the Court, at any stage, to order the next friend to furnish security for the defendant's costs.

Rule 3: where the defendant is a minor, the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for that minor. So the terminology divides cleanly: a minor plaintiff sues by a next friend; a minor defendant defends by a guardian for the suit, appointed by the Court.

Rule 3A is a protection against technical challenges: a decree against a minor shall not be set aside merely on the ground that the next friend or guardian for the suit had an interest adverse to that of the minor, unless prejudice has been caused to the minor's interests by reason of that interest.