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Bare acts > Code of Civil Procedure, 1908 > Order 32 Rule 3
 
  


 

3. Guardian for the suit to be appointed by court for minor defendant.- (1) Where the defendant is a minor, the court, on being satisfied of fact of his minority, shall appoint a proper person to be guardian for the suit for such minor.

(2) An order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff.

(3) Such application shall be supported by an affidavit verifying the fact that the proposed
guardian has not interest in the matters in controversy in the suit adverse to that of the minor and that he is a fit person to be so appointed.

(4) No order shall be made on any application under this rule except upon notice to any guardian of the minor appointed or declared by an authority competent in that behalf, or, where there is no such guardian, upon notice to the father, or where there is no father, to the mother, or where there is no father or mother, or other natural guardian of the minor, or, where there is no father, mother, or other natural guardian, to the person in whose care the minor is, and after hearing any objection which may be urged on behalf of any person served with notice under this sub-rule.


(4A) The court may, in any case, if it thinks fit, issue notice under sub-rule (4) to the minor also.

(5) A person appointed under sub-rule (1) to be guardian for the d for a minor shall, unless his appointment is terminated by retirement, removal or death, continue as such throughout all proceedings arising out of the suit including proceedings in any Appellate or Revisional Court and any proceedings in the execution of a decree.

HIGH COURT AMENDMENTS

Allahabad.- (I) in Rule 3 - Delete full stop at the end of sub-rule (3) and add the following namely.

“and shall also contain the names and addresses of all guardians including any guardian of the minor appointed or declared by an authority competent in that behalf, or the father or the other natural guardian of the minor, or where there is no father or other natural guardian the person in whose care the minor is.” (1-6-1957).

(ii) for sub-rule (4) (as it is in the body of the Code without any Proviso) substitute the following, namely.

“(4) The Court shall cause notice of such application to be served upon the minor as also upon all the probable guardians named in the application and such other person as it may deem fit calling upon them to file objections, if any, to the appointment of the proposed or any other probable guardian as guardian of the minor. In case any person himself desires to be appointed guardian of the minor instead of the proposed guardian, he shall furnish an affidavit verifying the fact that he has no interest in the matter in controversy in the suit adverse to that of the minor and that he is a fit person to be so appointed.


The Court shall after hearing the objections, if any, considering the respective claims of all persons, desirous of being appointed guardian including the proposed guardian, appoint such person as guardian of the minor as it may deem fit.”

(iii)to sub-rule (4), add the following, namely:

“Provided that if the minor is under twelve years of age no such notice shall be issued to him.” (1-6-1957).

Andhra Pradesh, Madras and Pondicherry.- Delete Rules 3 and 4 and substitute in lieu thereof the new Rule 3 setforth below:

“3. Qualifications to be a next friend or guardian.— (1) Any person who is 01 sound mind and has attained majority may act as next friend of a minor or as his guardian for the suit:

Provided that the interest of that person is not adverse to that of the minor and that he is not, in the case of next friend, a defendant, or, in the case of a guardian for the suit, a plaintiff

2) Appointed or declared guardians to be preferred and to be superseded only for reasons recorded.— Where a minor has a guardian appointed or declared by competent authority, no person other than the guardian shall act as the next friend of the minor or be appointed his guardian for the suit unless the Court considers, for reasons to be recorded, that it is for the minor’s welfare that another person he permitted to act or oe appointed as the case may be.

(3) Guardian to be appointed by Court.— Where the defendant is a minor, the Court, on being satisfied of e fact of his minority, shall appoint a proper person to be guardian for the suit for the minor.

(3-A) A person appointed under sub-rule (3) to be guardian for the suit for a minor shall, unless his appointment is terminated by retirement, removal or death, continue as such throughout all proceedings arising out of the suit including proceedings in any appellate or revisional Court and any proceeding in execution of a decree.

(4) Appointment to be on application and where necessary after notice to proposed guardian.— An order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff. The application, where it is by the plaintiff, shall set forth, in the order of their suitability a list of persons (with their full addresses for service of notice in Form No. 11-A set forth in Appendix H hereto) who are competent and qualified to act as guardian for the suit for the minor defendant. The Court may, for reasons to be recorded in any particular case, exempt the applicant from furnishing the list referred to above.

(5) Contents of affidavit in support of the application for appointment of guardian.— The application referred to in the above sub-rule whether made by the plaintiff or on behalf of the minor defendant, shall be supported by an affidavit verifying the fact that the proposed guardian has not, or that no one of the proposed guardians has any interest in the matters in controversy in the suit adverse to that of the minor and that the proposed guardian or guardians are fit persons to be so appointed. The affidavit shall further state, according to the circumstances of each case: (a) particulars of any existing guardian appointed or declared by competent authority, (b) the name and address of the person, if any, who is the de facto guardian of the minor, (c) the names and addresses of a person, if any, who in the event of either the natural or the de facto guardian or the guardians appointed or declared by competent authority, not being permitted to act, arc by reason of relationship or interest, or otherwise, suitable persons to act as guardians for the minor for the suit.

(6) Application for appointment of guardian to be separate from application for bringing on record the legal representatives of a deceased party.— An application for the appointment of a guardian for the suit of a minor shall not be combined with an application for bringing on record the legal representatives of a deceased plaintiff or defendant. The applications shall be by separate petitions.

(7) Notice of application to be given to persons interested in the minor defendant other than the proposed guardian.— No order shall be made on any application under sub-rule (4) above except upon notice to any guardian of the minor appointed or declared by an authority competent in that behalf or where there is no guardian, upon notice to the father or other natural guardian of the minor, or where there is no fatehr or other natural guardian, to the person in whose care the minor is, and after hearing any objection which may be urged on behalf of any person served with notice under this sub rule. The notice required by this sub-rule shall be served six clear days before the day named in the notice for the hearing of the application and may be in Form No. 11 set forth in Appendix H hereto.

(8) Special provision to shorten delay i. ring a guardian appointed.— Where the application is by the plaintiff, he shall along with his application and affidavit referred to in sub-rules (4) and (5) above, produce the necessary forms in duplicate, filled into the extent that is possible at that stage for the issue simultaneously of notice to at least two of the proposed guardians for the suit to be selected by the Court from the list referred to in sub-rule (4) above, together with a duly stamped voucher indicating that the fees prescribed for service have been paid. If one or more of the proposed guardians signify his or their consent to act, the Court shall appoint one of them and intimate the fact of such appointment to the person appointed by registered post. If no one of the persons served signifies his consent to act, the Court shall proceed to serve simultaneously another selected two, if so many there be, of the persons named in the list referred to in sub-rule (4) above, but no fresh application under sub-rule (4) above, shall be deemed necessary. The applicant shall, within three days of intimation of unwillingness by the first set of proposed guardians, pay the prescribed fee for service and produce the necessary forms duly filled in.

(9) No person shall be appointed guardian without his consent.— No person shall, without his consent, be appointed guardian for the suit. Whenever an application is made proposing the name of a person as guardian for the suit, a notice in Form No. 11-A set forth in Appendix 1-1 hereto shall be served on the proposed guardian I - unless, the applicant himself be the proposed guardian or the proposed guardian consents,

(10) Court guardian.— When to be appointed—How is to be placed in funds.—--- Where the Court finds no person fit and willing to act as guardian for the suit, the Court may appoint any of its officers or a pleader of the Court to be the guardian and may direct that the costs to be incurred by that officer in the performance of his duties as guardian shall be borne either by the parties or by any one or more of the parties to the suit or out of
any fund in Court in which the minor is interested, and may give directions for the repayment or allowances of the costs as justice and the circumstances of the case may require.

(11) Funds for a guardian other than Court guardian to defend.— When a guardian for the suit of a minor defendant i appointed and ills made to appear to the Court that guardian is not in possession of any or sufficient funds for the conduct of the suit on behalf of the defendant and that the defendant will be prejudiced in his defence thereby, the Court may, from time to time, order the plaintiff to advance moneys to the guardian for purpose of his defence and all moneys so advanced shall form part of the Costs of the plaintiff in the suit. The order shall direct that the guardian, as and when directed, shall file in court an account of the moneys so received by him.”

Delhi anti Himachal Pradesh.- (i) The following sub-rules were substituted for sub-rules (3) and (4):

“(3) The plaintiff shall file with his plaint a list of relatives of the minor and other persons, with their addresses, who prima facie are most likely to be capable of acting a guardian for the suit for a minor defendant. The list shall constitute an application by the plaintiff under sub-rule (2), above.

(4) The Court may at any time after institution of the suit call upon the plaintiff to furnish such a list, and, in default of compliance may reject the plaint.”

(ii) The following sub-rules (6) and (7) were added:

“(6) An application for the appointment of a guardian for the suit and any list furnished under this rule shall be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in controversy in the suit adverse to that of the minor and that each person proposed is a fit person to be so appointed.

(7) No order shall be made on any application under sub-rule (4) above except upon notice to the minor and also to any guardian of the minor appointed or declared by an authority competent in that behalf, or where there is no such guardian upon notice to the father or natural guardian of the minor or where there is no father
or natural guardian upon notice to the person in whose actual care the minor is and after hearing any objection which may be urged on behalf of any person so served with notice. The notice required by this sub-rule shall be served at least seven clear days before the day named in the notice for hearing of the application.

(8) Where none of the persons mentioned in the last preceding sub-rule is willing to act as guardian, the Court shall direct notice to other person or persons proposed for appointment as guardian either simultaneously to some or all of them or successively as it may consider convenient or desirable in the circumstances of the case. The Court shall appoint such person as it thinks proper from among those who have signified their consent and intimate the fact of such appointment to the person appointed by registered post unless he is present at the time of appointment either in person or by pleader.

(9) No person shall be appointed guardian for the suit without his consent and except in cases where an applicant himself prays for his appointment as guardian, notices issued shall clearly require the party served to signify his consent or refusal to act as guardian.

(10) Where the Cort finds no person fit and wilting to act as guardian for suit the Court may appoint any of its officers or a pleader of the Court to be a guardian and may direct that costs to be incurred by that officer or pleader in the performance of his duties as guardian shall be borne either by the parties or by any one or more of the parties to the suit or out of any fund in Court in which the minor is interested and may give direction for the payment or allowance of the costs as justice and the circumstances of the case may require.

(11) When a guardian for the suit of a minor defendant is appointed and it is made to appear to the Court that the guardian is not in possession of any or sufficient funds for the conduct of the suit on behalf of the defendant and that the defendant will be prejudiced in his defence thereby, the Court may from time to time order the plaintiff to advance moneys to the guardian for the purpose of his defence and all moneys so advanced shall form costs of plaintiff in the suit. The order shall direct that the guardian as and when required by the Court shall file into Court the account of the moneys so received by him.”

Kerala.- In Rule 3—

(i) for sub-rule (2), the following shall be substituted, namely:

“(2) Appointment to be on application and where necessary after notice to proposed guardian.— An order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff. The application where it is by the plaintiff, shall set forth in the order of their suitability, a list of persons (with their full addresses as for service of notice in Form No. 11-A set forth in Appendix H hereto) who are competent and qualified to act as guardian for the suit for the minor defendant. The Court may, for reasons to be recorded, in any particular case, exempt the application from furnishing the list referred to above.”

(ii) in sub-rule (3) at the end, the following shall be added, namely:

“The affidavit shall further state the name of the person or persons on whom notice has to be served under the provisions of sub-rule (4)”,

(iii) to sub-rule (4) the following proviso shall be added, namely:

“Provided that if the minor is under 15 years of age no such notice shall be issued to him.” (9.6.1959).

Madhya Pradesh.- For Rule 3, substitute the following:

“3. Guardian for the suit to be appointed by Court for minor defendant.— (1) 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 of such minor.

(2) A person appointed under sub-rule (1) to be guarding for the suit for a minor shall, unless his appointment is terminated by retirement, removal or death continue as such throughout alt proceeding arising out of the suit including proceedings in any appellate or revisional Court and any proceedings in the execution of a decree.”

 

 

 

 

 

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