Suits by and against Minors, Corporations, Firms and Others
Chapter Twenty-Six
Syllabus topic 2.8, "Special suits, Orders XXVII to XXXIV"
Pages 144 to 150 of 365
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.
Suits by and against Minors, Corporations, Firms and Others
Rule 4 governs who may act: any person who is of sound mind and has attained majority may act as next friend or be appointed guardian for the suit, provided his interest is not adverse to that of the minor and he is not, in the case of a next friend, a defendant, or in the case of a guardian, a plaintiff. No person shall be appointed guardian for the suit without his consent in writing.
Rule 6: a next friend or guardian shall not, without the leave of the Court, receive any money or other movable property on behalf of the minor by way of compromise or by way of satisfaction of a decree.
Rule 7, and this is the one most often asked: no next friend or guardian for the suit shall, without the leave of the Court expressly recorded in the proceedings, enter into any agreement or compromise on behalf of a minor with reference to the suit, unless the leave is so recorded. Any such agreement or compromise entered into without the leave of the Court shall be voidable against all parties other than the minor.
Rule 12 deals with what happens when the minor attains majority: he may elect to proceed with the suit, in which case he applies for an order discharging the next friend and for leave to proceed in his own name; or he may apply to have the suit dismissed on repayment of the costs incurred by the defendant, or paid by his next friend.
Rule 15 applies the whole of Rules 1 to 14, so far as may be, to persons of unsound mind, and to persons who, though not so adjudged, are found by the Court on inquiry to be incapable by reason of any mental infirmity of protecting their interests when suing or being sued.
Order XXIX: corporations
Rule 1: in suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the secretary, or by any director or other principal officer of the corporation who is able to depose to the facts of the case.
Rule 2 deals with service: the summons may be served on the secretary, or on any director or other principal officer of the corporation, or by leaving it or sending it by post at the registered office, or, where there is no registered office, at the place where the corporation carries on business.
Suits by and against Minors, Corporations, Firms and Others
Rule 3 allows the Court, where it appears that any officer of the corporation is able to answer material questions relating to the suit, to require that officer to appear in person.
Order XXX: partners and firms
Rule 1(1): any two or more persons claiming or being liable as partners and carrying on business in India may sue or be sued in the name of the firm, if any, of which they were partners at the time of the accruing of the cause of action. Any party may apply for a statement of the names and addresses of the persons who were partners at that time, to be furnished and verified as the Court directs.
That last provision is important. Suing in the firm name is a convenience of nomenclature, not a recognition that the firm is a person. The partners are still the parties, and any party may compel their names to be disclosed.
Rule 1(2): where persons sue or are sued in the firm name, it suffices for any pleading required to be signed or verified by the plaintiff or defendant to be signed or verified by any one of those persons.
Rule 3 provides for service on any one or more of the partners, or at the principal place of business on any person having control or management there.
Rule 4 covers the death of a partner: where two or more persons may sue or be sued in the firm name and any of them dies before the institution of the suit or before a decree, it shall not be necessary to join the legal representative of the deceased as a party.
Rule 10 extends the Order to a person carrying on business in a name or style other than his own, who may be sued in that name or style as if it were a firm name.
Order XXVIII and Order XXXI
Order XXVIII deals with suits by or against military or naval men or airmen. Where such a person, being a party to a suit, cannot obtain leave of absence to prosecute or defend it in person, he may authorise any person to sue or defend in his stead, by a written authority signed by him. The Court may also order that the authorised person be joined.
Order XXXI deals with trustees, executors and administrators. Rule 1 provides that in all suits concerning property vested in a trustee, executor or administrator, where the contention is between the persons beneficially interested in that property and a third person, the trustee, executor or administrator shall represent the persons so interested, and it shall not ordinarily be necessary to make them parties. But the Court may, if it thinks fit, order them or any of them to be made parties.
Suits by and against Minors, Corporations, Firms and Others
A worked example
Rohan, aged sixteen, is knocked down by a delivery van owned by a partnership trading as "Sagar Traders". His mother wants to sue for damages, and the firm has three partners, one of whom has since died.
How is the suit instituted? In Rohan's own name, by his mother as his next friend, under Order XXXII Rule 1.
If it were filed without a next friend? The defendant could apply under Rule 2 to have the plaint taken off the file, and the costs would fall on the pleader or other person who presented it, not on Rohan.
Whom does he sue? He may sue in the firm name, "Sagar Traders", under Order XXX Rule 1(1), because the partners are liable as partners and were partners at the time the cause of action accrued. The firm may be required to furnish a statement of the partners' names and addresses.
The partner who died before the suit. Order XXX Rule 4: it is not necessary to join his legal representative.
Service on the firm. Under Rule 3, on any one or more of the partners, or at the principal place of business on a person having control or management there.
The firm wants to settle for a small sum. Order XXXII Rule 7 applies: the next friend cannot compromise on the minor's behalf without the leave of the Court expressly recorded in the proceedings, and a compromise entered into without that leave is voidable against every party except the minor. Under Rule 6 she also cannot receive the money without leave.
Rohan turns eighteen during the suit. Rule 12: he may elect to proceed, applying for an order discharging his next friend and for leave to proceed in his own name, or he may apply to have the suit dismissed on repayment of the defendant's costs.
The defendant later says the next friend had an interest adverse to Rohan's. Rule 3A: a decree against a minor is not to be set aside merely on that ground, unless prejudice has been caused to his interests by reason of it.
Change the defendant. Suppose the van belonged to a company instead. Order XXIX applies: pleadings signed and verified by the secretary, a director or other principal officer able to depose to the facts, and service on such an officer or at the registered office.
What it does not mean
A next friend is not the plaintiff. The suit is instituted in the minor's own name; the next friend conducts it.
Suits by and against Minors, Corporations, Firms and Others
A next friend and a guardian for the suit are not the same. The first acts for a minor plaintiff; the second is appointed by the Court for a minor defendant.
A firm is not a legal person. Order XXX allows suit in the firm name as a convenience, and the partners' names may be compelled.
A compromise for a minor is not effective merely because it is sensible. Rule 7 requires the leave of the Court expressly recorded, and without it the compromise is voidable against everyone except the minor.
An adverse interest does not by itself upset a decree against a minor. Rule 3A requires prejudice.
Aliens, foreign States and foreign Rulers: sections 83 to 87A
The Code has a short block on parties from outside India, and it is the natural neighbour of everything above.
Section 83, when aliens may sue: alien friends, and alien enemies residing in India with the permission of the Central Government, may sue in any competent Court as if they were citizens of India. Alien enemies residing in India without such permission, or residing in a foreign country, shall not sue.
Section 84, when foreign States may sue: a foreign State may sue in any competent Court, provided the object of the suit is to enforce a private right vested in the Ruler of that State or in any of its officers in his public capacity.
Section 85 allows the Government to specially appoint persons to prosecute or defend on behalf of a foreign Ruler.
Section 86, suits against foreign Rulers, Ambassadors and Envoys: no foreign State may be sued in any competent Court except with the consent of the Central Government, certified in writing by a Secretary to that Government. The proviso: a person may sue as a tenant of immovable property without that consent.
Section 87: the Ruler of a foreign State sues and is sued in the name of his State, unless in giving consent under section 86 the Central Government directs that he be sued in the name of an agent or otherwise. Section 87A defines "foreign State" as a State outside India recognised by the Central Government, and "Ruler" as the person recognised by that Government as its head.
The thread through all six is the same: access to the Indian courts by or against a foreign sovereign is controlled by the Central Government's recognition and consent, and the one thing a private person may always do without consent is sue as a tenant.
Suits by and against Minors, Corporations, Firms and Others
Consent by a person under disability: section 147
Section 147: in all suits to which a person under disability is a party, any consent or agreement as to any proceeding shall, if given or made with the express leave of the Court by the next friend or guardian for the suit, have the same force and effect as if that person were under no disability and had given the consent himself.
So a minor's next friend can compromise a step in the proceeding, but only with the Court's express leave. Read it with Order XXXII Rule 7 above, which imposes the same requirement on an agreement or compromise on the minor's behalf.
Quick revision## Quick revision
Order XXXII, minors: a minor sues in his own name by a next friend, Rule 1; a plaint filed without one may be taken off the file with costs against the person who presented it, Rule 2; the Court appoints a guardian for the suit for a minor defendant, Rule 3; a decree is not set aside for an adverse interest unless prejudice is caused, Rule 3A; no money received and no compromise without the leave of the Court expressly recorded, and a compromise without leave is voidable against all but the minor, Rules 6 and 7; on majority he may elect to proceed or have the suit dismissed on repaying costs, Rule 12; the Order applies to persons of unsound mind and those incapable of protecting their interests, Rule 15.
Order XXIX, corporations: pleadings signed and verified by the secretary, a director or other principal officer able to depose; service on such an officer or at the registered office; an officer may be required to appear in person.
Order XXX, firms: partners may sue or be sued in the firm name, being partners at the time the cause of action accrued; the names and addresses of the partners may be required; any one partner may sign or verify; service on any partner or at the principal place of business; no need to join the legal representative of a partner who died before the suit or before decree; extended to a person trading in a name other than his own.
Order XXVIII: a soldier, sailor or airman unable to obtain leave of absence may authorise another in writing to sue or defend for him.
Order XXXI: a trustee, executor or administrator represents the beneficiaries, who need not ordinarily be joined, though the Court may order otherwise.
Test yourself
1. How is a suit by a minor instituted? In the minor's own name, by a person called the next friend of the minor, under Order XXXII Rule 1.
Suits by and against Minors, Corporations, Firms and Others
2. What happens if a suit is filed for 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, after notice to that person and hearing his objections: Order XXXII Rule 2.
3. What is the difference between a next friend and a guardian for the suit? A next friend conducts a suit for a minor plaintiff and needs no appointment by the Court. A guardian for the suit is appointed by the Court for a minor defendant, on the Court being satisfied of the fact of his minority, and no one may be appointed without his consent in writing.
4. Can a next friend compromise a minor's suit? Not without the leave of the Court expressly recorded in the proceedings, under Order XXXII Rule 7. Any agreement or compromise entered into without that leave is voidable against all parties other than the minor.
5. Can partners be sued in the name of their firm? Yes. Under Order XXX Rule 1, two or more persons claiming or being liable as partners and carrying on business in India may sue or be sued in the name of the firm of which they were partners at the time the cause of action accrued, and any party may require a statement of the names and addresses of those partners.
6. A partner dies before the suit is filed. Must his legal representative be joined? No. Order XXX Rule 4 provides that where persons may sue or be sued in the firm name and any of them dies before the institution of the suit or before a decree, it is not necessary to join the legal representative of the deceased as a party.
7. Who signs and verifies pleadings for a corporation? The secretary, or any director or other principal officer of the corporation who is able to depose to the facts of the case: Order XXIX Rule 1.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.