Order XXXII Rule 9 CPC - Removal of Next Friend
Order XXXII Rule 9 of the Code of Civil Procedure, 1908 provides a safeguard for minor plaintiffs. It permits the court to remove a next friend where the minor's interests are not adequately protected, and provides for replacement by a legally appointed or declared guardian in specified circumstances.
Text of Order XXXII Rule 9 CPC
Rule 9 - Removal of next friend
(1) Where the interest of the next friend of a minor is adverse to that of the minor or where he is so connected with a defendant whose interest is adverse to that of the minor as to make it unlikely that the minor's interest will be properly protected by him, or where he does not do his duty, or, during the pendency of the suit, ceases to reside within India, or for any other sufficient cause, application, may be made on behalf of the minor or by a defendant for his removal; and the Court, if satisfied of the sufficiency of the cause assigned, may order the next friend to be removed accordingly, and make such other order as to costs as it thinks fit.
(2) Where the next friend is not a guardian appointed or declared by an authority competent in this behalf, and an application is made by a guardian so appointed or declared, who desires to be himself appointed in the place of the next friend, the Court shall remove the next friend unless it considers, for reasons to be recorded by it, that the guardian ought not to be appointed the next friend of the minor, and shall thereupon appoint the applicant to be next friend in his place upon such terms as to the costs already incurred in the suit as it thinks fit.
Meaning of the legal provisions
Minor: A person who has not attained majority under the law applicable to them. For the purposes of Order XXXII, the relevant definition appears in Rule 1 and its explanation.
Next friend: The person through whom a minor plaintiff institutes and conducts a civil suit. A next friend is distinct from a guardian for the suit appointed for a minor defendant.
Adverse interest: A conflict between the next friend's personal interests and the minor's interests, or a close connection with an adverse defendant that makes proper protection of the minor unlikely.
Sufficient cause: A ground that the court finds adequate for removal, including failure to perform duties, ceasing to reside in India during the suit, or other circumstances endangering the minor's representation.
Grounds for removal under Rule 9(1)
- The next friend's interests conflict with the minor's interests.
- The next friend is connected with a defendant whose interests are adverse to the minor, making adequate protection unlikely.
- The next friend fails to perform their duties.
- The next friend ceases to reside within India during the pendency of the suit.
- There is another sufficient cause justifying removal.
An application may be made on behalf of the minor or by a defendant. Removal is not automatic under sub-rule (1): the court must be satisfied that the cause shown is sufficient. The court may also make an appropriate order concerning costs.
Replacement by an appointed or declared guardian under Rule 9(2)
Where the existing next friend is not a guardian appointed or declared by a competent authority, such a guardian may apply to take the next friend's place. The court ordinarily must remove the existing next friend and appoint the applicant, unless it records reasons why that guardian ought not to be appointed. The court may determine terms concerning costs already incurred in the suit.
This rule does not give every relative an unconditional right to replace the next friend. The applicant must meet the specific status described in sub-rule (2), and the court retains its stated power to refuse appointment for recorded reasons.
How an application for removal is considered
- Identify the ground: Set out the conflict, failure of duty, change of residence or other sufficient cause, with supporting material.
- Apply to the court: Move the court hearing the minor's civil suit, stating the relief sought under Order XXXII Rule 9.
- Court's assessment: The court considers the minor's interests and the evidence or circumstances relied upon before making an order.
- Replacement and continuation: If removal is ordered, the procedural requirements of Order XXXII Rule 10 concerning stay of proceedings until a new next friend is appointed may apply.
Frequently asked questions
Can a defendant seek removal of the next friend?
Yes. Rule 9(1) expressly allows a defendant to apply for removal on a sufficient ground.
Is removal mandatory whenever a conflict is alleged?
No. Under Rule 9(1), the court must be satisfied of sufficient cause. Rule 9(2) separately prescribes the approach where a competent authority's appointed or declared guardian seeks replacement.
Does removal end the minor's suit?
Not ordinarily. The minor's suit may continue through a properly appointed next friend, subject to the procedure in Rule 10.
Official statutory reference
See the India Code official legislation portal for the Code of Civil Procedure, 1908 (Act 5 of 1908), First Schedule, Order XXXII. Check applicable state amendments and High Court rules before relying on the provision in a particular proceeding.