Topic: Special Procedure on Particular Case -

Suit by or against Minor & Injunction.

Contents
 Suit by or against Minor

SL Topic Name Page No:

1 Minor: Definition 1
2 Suits by minors 1
3 Suit against minors 2
4 Who may be appointed as guardian or next friend 3
5 Power & duties of guardian or next friend 4
6 Decree against minors 5
7 Persons of unsound mind 6

Injunction.
SL Topic Name Page No:
1 Definition & nature of injunction 7
2 Cases in which temporary injunction may be granted 8
3 Principle governing the grant of Injunction 8
4 Limit of Injunction 9
5 Remedy against Injunction Order 10
6 Consequence of disobedience or breach of injunction 10
7 Conclusion 11

Suits by or against minors and lunatics: Order 32

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Minor: Definition: Rule 1

A minor is a person who has not attained the age of 18 years. But in the case of a minor of
whose person or property a guardian or next friend has been appointed by a court or whose
property is under superintendence of a Court of Wards, the age of majority is 21 years.

Nature and scope

Order 32 prescribes the procedure of suits to which the minors or person of unsound mind
are parties.

Object

Order 32 has been specially enacted to protect the interest of minors and persons of unsound
mind and to ensure that they are represented in suits or proceedings by persons who are
qualified to act as such.

An infant is, in law, regarded as of immature intelligence and discretion and owing to his
want of capacity and judgment is disable from binding himself except where it is for his
benefit. The law will, as a general principle, treat all acts of an infant which are for his
benefit on the same footing as those of an adult, but will not permit him to do anything
prejudicial to his own interests.“ Thus, a decree passed against a minor or a lunatic without
appointment of a guardian is a nullity and void and not merely voidable.

The provisions of Order 32 reflect principles of natural justice, equality and good conscience,
inasmuch as they allow litigation to be prosecuted or defended on behalf of minors, persons
of unsound mind and persons with mental infirmity. In absence of such provisions interest of
persons with legal disability are bound to suffer.

Suits by minors: Rule 1-2A

Every suit by a minor should be instituted in his name through his guardian or next friend. If
it is not done the plant will be taken off the file. Where such minor is a plaintiff the court
may at any stage of the suit, order his guardian or next friend, either on the application of the
defendant or suomotu for reason to be recorded to furnish security for costs of the defendant.
The provision seeks to discourage vexatious litigation by guardians or next friends of
minors.

Suit against minors: Rule 3

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Where a suit is instituted against a minor, the court should appoint a guardian ad litem to

Defend the suit. Such appointment should continue throughout all the proceedings including
an appeal or revision and in execution of a decree unless it is terminated by retirement,
removal or Death of such guardian.

Who may be appointed as guardian or next friend? Rule 4

Any person who has attained majority and is of sound mind, may act as a guardian or next
friend, provided his interest is not adverse to that of the minor, who is not the opposite party
in the suit and who gives consent in writing to act as a guardian or next friend. In the interest
of a minor, however, the court may permit another person to act as the next friend or
guardian of the minor. In the absence of a fit and willing person to act as a guardian, the
court may appoint any of its officers to be such guardian.

Power &duties of guardian or next friend: Rule 5-7

No guardian or a next friend can, without the leave of the court receive any amount or
movable property on behalf of a minor by way of compromise, nor enter into any agreement
or compromise on his in the suit. An application for leave of the court should be
accompanied by an affidavit of the next friend or guardian, and if the minor is represented by
a pleader, with the certificate of the pleader that such compromise is, in his opinion, for the
benefit of the minor. Such certificate or opinion expressed in the affidavit, however, cannot
preclude the court from examining whether the agreement or compromise proposed is for the
benefit of the minor. An agreement or compromise entered into without the leave of the court
is voidable at the instance of the minor.

Once such an agreement or compromise is avoided by a minor, it has no effect at all.

Rules 6 and 7 provide that no next friend or guardian of a minor for the suit shall, without
the leave of the court, (a) receive any money or, other movable property on behalf of a minor
either by way of compromise before or under a decree or order in favour of the minor, (b)
enter into any agreement or compromise on behalf of a minor with reference to the suit,
unless such leave is expressly recorded in the proceedings.

The application for such leave must be accompanied by an affidavit of the next friend or
guardian of the minor, as the case may be, and if the minor is represented by a pleader, by
the certificates of the pleader to effect that such compromise is in his opinion for the benefit
of the minor. The opinion so expressed in the affidavit or certificate cannot preclude the
court from examining whether in fact the compromise is for the benefit of the minor.

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Any compromise entered into without the leave of the court shall be voidable against all
parties other than the minor. Therefore, the compromise is good unless the minor chooses to
avoid it.” But once it is avoided by a minor, it ceases to be effective as regards the other
parties also.

Rule 6 and 7 are designed to safeguard the interest of minor during the pendency of a suit
against hostile, negligent or collusive act of a next friend or guardian. They are based upon
the general principle that infant litigants become wards of the court and the court has got the
right and also the duty to see that the next friends or guardian act properly and bona fide in
the interest of minors and that no suit are instituted or carried on by them for their own
benefits only irrespective of the benefits of minors.

Decree against minors: Rule 3-A

A decree passed against a minor without appointment of next friend or guardian is null and
void. But a decree passed against a minor cannot be said to be illegal nor can be set aside
only on the ground that the next friend or a guardian Of the minor had an interest in the
Subject-matter of the suit adverse to that of the minor. If the minor is prejudiced because of
adverse interest of the next friend or guardian, it can be made a ground for setting aside a
decree. The minor may also obtain appropriate relief for misconduct or gross negligence on
the part of his next friend or guardian.

Minor attaining majority: Rules 12-14

On attaining the age of majority, a minor plaintiff may adopt any of the following courses:

(i) He may proceed with the suit. In that case he shall apply for an order discharging
the next friend or guardian and for leave to proceed in his own name.

(ii) He may abandon the suit and apply for its dismissal on repayment of costs to the
defendant Or to his guardian or next friend.

(iii) He may apply for dismissal of the suit on the ground that it was unreasonable or
improper.

(iv) Where he is a co-plaintiff, he may repudiate the suit and may apply to have his name
struck off as co-plaintiff, If the Court finds that he is not a necessary party, it may
dismiss him from the suit. But if he is a necessary party, the Court may make him a
defendant.

Persons of unsound mind:

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The provisions of Order 32 also apply to lunatics and persons of unsound mind.
Suits concerning family matters: Order 32-A
Order 32-A, as inserted by the Code of Civil Procedure (Amendment) Act, 1976 lays
down the procedure where suits or proceedings relate to matters concerning a family.
Ordinary judicial procedure is not ideally suited to the sensitive area of personal
relationships. Litigation concerning affairs of the family require special approach keeping in
mind serious emotional aspects involved. Family counseling as one of the methods of
achieving the ultimate object of preservation of the family, hence, should be kept in the
forefront. Proceedings in such suits, therefore, may not always be held in open court but may
be conducted in camera.
The Supreme Court, while dealing with the Family Courts Act, 1984, observed that
the said Act was enacted with a view to promotes conciliation in, and secure speedy
settlement of, disputes relating to family matters. The said Act was enacted despite the fact
that Order 32-A of the Code of Civil Procedure was inserted by reason of the Code of Civil
Procedure (Amendment) Act, 1976, which could not bring out desired result.

“Injunction”

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 SL Topic Name Page No:

1 Definition & Nature of injunction 7

2 Cases in which temporary injunction may be granted 7
3 Principle governing the grant of Injunction 8
4 Limit of Injunction 9
5 Remedy against Injunction Order 10
6 Consequence of disobedience or breach of injunction 11
7 Conclusion 11

Definition of injunction:

In the dictionary meaning, Injunction is:

1:  the act or an instance of enjoining:   ORDER ,  ADMONITION

2:  a writ granted by a court of equity whereby one is required to do or to refrain

from doing a specified act.

It is a judicial order that restrains a person from beginning or continuing an action

threatening or invading the legal right of another, or that compels a person to carry out a
certain act, e.g., to make restitution to an injured party.
A court order by which an individual is required to perform, or is restrained from performing
a particular act.A writ framedaccording to the circumstances of the individual case.
An injunction commands an act that the court regards as essential to justice, or it prohibits an 
act that isdeemed to becontrary to good conscience. It is an extraordinary remedy, reserved f
or special circumstances in which the temporarypreservation of the status quo is necessary.

Nature of Injunction:

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 Injunction is a discretionary remedy. Before granting injunction, the court must be
satisfied about the following three conditions:

(i) Prima facie Case: Applicant must make out a prima facie case.

(ii) Irreparable Injury: Prima facie case alone will not do. After showing a prima facie
case, the plaintiff must show that he will suffer irreparable injury or loss if the
injunction is not granted.

(iii) Balance of Convenience: The balance inconvenience must be in favor of the

Plaintiff.

Principle governing the grant of Injunction:

The court does not grant temporary injunction as a matter of course. As mentioned above,
before an order of temporary injunction may be granted, the court must be satisfied-
(i) That the applicant has a prima facie and arguable case to go into trial;
(ii) That applicant shall suffer irreparable loss or injury unless the injunction is granted;
and
(iii) That the balance of convenience is in favour of the applicant.

Grant of Temporary Injunction under an exparte order:

Under Order 39 Rule I the court has the power to an exparte order of temporary injunction.
However, the same should be granted only in exceptional circumstances. The factors which
should weigh for the grant of expert injunction are:
(i) Whether irreparable injury or loss will ensue to the plaintiff;
(ii) Whether refusal of exparte injunction would involve greater injustice than the grant of
it would involve;
(iii) The time at which the plaintiff first had notice of the act complained of;
(v) Whether the plaintiff had acquiesced for sometimes;
(vi) Whether the application is made in utmost good faith.

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 (vii) In any case, an exparte order even if granted must be for a limited period of time.

Grant of Temporary injunction under Rule 2 of Order 39:

The court grants temporary injunctions both under Rules 1 and 2 of Order 39. However,
under Rule 2 the Court grants an injunction where-
(i) The suit is for an injunction; and
(ii) Further there is apprehension of a breach of contract or other injury of any Kind.

Ad-interim Injunction against Government:

Rule 5A inserted by the Act No. XL of 2003 provides for rules with regard to ad-interim
injunction against government authorities. The usual rule is that an ad-interim order for
injunction may be granted without hearing the defendants. However, if an application for ad-
interim injunction is against the Government, then a court cannot grant ad-interim injunction
without hearing the Government pleader.

Ad-interim injunction to be disposed of within seven days:

Rule 5A provides the following with regard to the granting of Ad-interim injunction against
a private person:
(i) The court shall in all cases where a private party makes an application for ad-interim
or temporary injunction against another private party, direct notice of the
application to the opposite party;
(ii) The court may hear such application exparteonly where it appears to the court that
the object of granting the injunction would be defeated by the delay;

(iii) If any order of ad-interim or temporary injunction is passed exparte at the instanceof
a private party against another private party, the court shall hear and dispose of the
matter on merit within seven days of appearance of the opposite party, unless the
period is extended further at the instance of the opposite party; and any such order
of ad-interim or temporary injunction shall stand vacated, if the party at whose
instance,

It was passed, prays for adjournment or on being so called upon by the Court, fails
to attend hearing.

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Cases in which temporary injunction may be granted:

Where in any suit it is proved by affidavit or otherwise

(a) that any-property in dispute in a suit is in danger of being wasted, damaged or alienated
by party to the suit, or wrongfully sold in execution of a decree, or

(b) that the defendant threatens, or intends, to remove or dispose of his property with a view
to defraud his creditors,

the Court may by order grant a temporary injunction to i-cstrain such act, or make such other
order for the purpose of staying and preventing the wasting, damaging, alienation, sale,
removal or disposition of the property as the Court thinks fit, until the disposal of the suit or
until further orders.

Limit of Injunction:

The grant of injunction is a serious matter and the courts should take good care and grant an
injunction only in cases, where such an injunction is essential. generally speaking, temporary
injunction should be confined to-

(i) Preserving the status quo;

(ii) Preventing irreparable loss or damage to the property under the litigation; or

(iii) To adverting substantial injury.

Remedy against Injunction &Order:

If a party is aggrieved by an order of injunction, he has remedy by way of appeal to have the
injunction vacated, but so long as it stands, and its operation is not suspended, the
partyenjoined must obey it.

Consequence of disobedience or breach of injunction:

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In the case of disobedience of any injunction granted or other order made under Rule 1 or
Rule 2 or breach of any the terms on which the injunction was granted or the order made, the
court

granting the injunction or making the order, or any court to which the suit or proceeding is
transferred, may order the property of the person guilty of such disobedience or breach to be
attached, and may also order such person to be detained in the civil prison for term not
exceeding three months, unless in the meantime the court directs his release. However, a
proceeding for contempt of court for disobedience to injunction order is not maintainable;
nor the court can proceed in exercise of its inherent power (Hasrat Ali vsJoinalAbedin)

Conclusion:

Every suit by a minor should be instituted in his name through his guardian or next friend. If
it is not done the plant will be taken off the file. Where such minor is a plaintiff the court
may at any stage of the suit, order his guardian or next friend, either on the application of the
defendant or suomotu for reason to be recorded to furnish security for costs of the defendant.

The Court may by order grant a temporary injunction to restrain such act, or make such other
order for the purpose of staying and preventing the wasting, damaging, alienation, sale,
removal or disposition of the property as the Court thinks fit, until the disposal of the suit or
until further orders.

…………………The End…………………

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