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Code of Civil Procedure, 1908 | Order XXXII

Order XXXII Rule 2 CPC - Suit Instituted Without a Next Friend

Order 32 Rule 2 of the Code of Civil Procedure, 1908 addresses the procedure when a suit is filed by or on behalf of a minor without a next friend. It permits the defendant to apply for removal of the plaint from the court file, subject to notice and the court's decision.

Text of Order XXXII Rule 2 CPC

(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.

(2) Notice of such application shall be given to such person, and the Court, after hearing his objections (if any) may make such order in the matter as it thinks fit.

Meaning and legal effect of Rule 2

Under Order XXXII Rule 1, a suit by a minor must be instituted in the minor's name through a person called the next friend. Rule 2 provides a procedural safeguard where that requirement has not been followed.

The phrase "plaint taken off the file" refers to removal of the improperly presented plaint from the court's file on an appropriate order. The rule does not say that removal is automatic: the defendant must apply, notice must be given to the person who presented the plaint, and the court must consider any objections.

Requirements under Order 32 Rule 2

  1. Suit involving a minor: The suit must have been instituted by or on behalf of a minor without a next friend.
  2. Application by defendant: The defendant may request that the plaint be taken off the file.
  3. Notice: The pleader or other person who presented the plaint must receive notice of the application.
  4. Opportunity of hearing: The court considers objections, if any, from the person notified.
  5. Discretionary order: The court may make such order as it considers fit in the circumstances.
  6. Costs: The rule expressly contemplates costs payable by the pleader or other person who presented the plaint.

Who is a minor and what is a next friend?

For civil proceedings, the term minor is governed by the explanation to Order XXXII Rule 1 and the applicable law of majority. India Code provides the official central legislation, including the Code of Civil Procedure, 1908 and the Majority Act, 1875. Section 3 of the Majority Act generally fixes attainment of majority at eighteen years, subject to applicable statutory provisions.

A next friend is the person who institutes and conducts a suit in the name of a minor plaintiff. Eligibility and conflicts of interest are addressed in Order XXXII Rule 4. A next friend for a minor plaintiff is distinct from a guardian for the suit appointed for a minor defendant under Order XXXII Rule 3.

Can the court allow the defect to be corrected?

Rule 2 leaves the court discretion to make an appropriate order after notice and hearing. Whether a defect may be cured, and the procedural consequences of doing so, depend on the facts, applicable procedural law and binding judicial decisions. It should not be assumed that every plaint filed without a next friend must automatically be removed or that later correction is always available.

Related provisions of Order XXXII

Rule 2A concerns security by a next friend when ordered. Rule 5 governs representation during proceedings, while Rule 7 deals with agreements and compromises on behalf of minors.

Official legal references

Legal information only. State amendments, applicable rules and current judicial interpretations should be checked for the relevant court and dispute.