Order VII - Proceedings by or against minors or persons of unsound mind : Supreme Court Rules 2013

What is the procedure for Proceedings by or against minors or persons of unsound mind? Order VII of Supreme Court Rules 2013

 

Order VII of Supreme Court Rules 2013 : "Proceedings by or against minors or persons of unsound mind"

1. Every appeal, petition or other proceeding by a minor shall be instituted or continued in his name by his next friend.

Explanation - In this Order, minor means a person who has not attained his majority within the meaning of section 3 of the Indian Majority Act, 1875 (9 of 1875) where the appeal, petition or other proceeding relates toany of the matters mentioned in clauses (a) and (b) of section 2 of that Act or to any other matter.

 

 

2. A next friend shall not retire without the leave of the Court. The Court may require him to procure a fit person to be put in his place before he is permitted to retire, and may also, if it thinks fit, require him to furnish security for costs already incurred or likely to be incurred as a condition of his retirement.

3. (1) On the retirement, removal or death of the next friend of a minor, further proceedings shall be stayed until the appointment of a new next friend in his place.

(2) Where the advocate-on-record of such minor omits, within a reasonable time, to take steps to get a new next friend appointed, any person interested in the minor or in the matter in issue may apply to the Court for the appointment of one, and the Court may appoint such person as it thinks fit as the next friend of such minor.

4. An application for the appointment of new next friend of a minor shall be supported by an affidavit showing that the person proposed is a fit and proper person to be so appointed and has no interest adverse to that of the minor.

5. Where a respondent to an appeal or petition is a minor and is not represented by a guardian, an application shall be made to the Court by the appellant or petitioner as the case may be, or by some person interested in the minor for the appointment of a guardian of such minor; and it shall be supported by an affidavit stating that the proposed guardian has no interest in the matter in question in the appeal or petition adverse to that of the minor.

Where a person other than the father or where there is no father, the mother or other natural guardian of the minor is proposed as guardian, notice of the application shall be served on the father or where there is no father, on the mother or other natural guardian of the minor, or on the person with whom the minor resides, not less than fourteen days before the day named in the notice for the hearing of the application. Where there is no other person fit and willing to act as guardian, the Court may appoint an officer of the Court to be guardian. The Court may, in any case, if it thinks fit, issue notice to the minor also.

6. (1) No guardian of a minor shall retire from a suit, appeal or other proceeding without the leave of Court. Where a guardian of a minor fails to do his duty or other sufficient cause is shown for his removal, the Court may remove him from the guardianship of the minor and make such order as to costs as it thinks fit.

(2) Where the guardian of a minor retires, dies or is removed by the Court during the pendency of the suit, appeal or other proceeding, the Court shall appoint a new guardian in his place.

 

7. When a guardian ad-litem of a minor respondent 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 appeal or petition on behalf of the respondent, and that the respondent will be prejudiced in his defence thereby, the Court may, in its discretion, from lime to time, order the appellant or petitioner, as the case may be, to advance to the guardian of the minor for the purpose of his defence such moneys as the Court may fix, and all moneys so advanced shall form part of the costs of the appellant or petitioner in the appeal or petition, as the case may be.

The order shall direct that the guardian do file in Court an account of the moneys so received by him.

8. An application to declare as a major a party to a proceeding described as a minor and to discharge his next friend or guardian shall be supported by an affidavit stating the age of the alleged major and the date on which he attained majority. Notice of the application shall be given to the next friend or guardian and to the alleged major.

9. No next friend or guardian of a minor in an appeal or other proceeding, 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 appeal or proceeding in which he acts as next friend or guardian.

10. An application made to the Court for leave to enter into an agreement or compromise or for the withdrawal of any appeal or other proceedings in pursuance of a compromise on behalf of a minor, shall be supported by an affidavit from the next friend or guardian of the minor stating that the agreement or compromise is for the benefit of the minor, and, where the minor is represented by an Advocate, by a certificate or by a statement at the bar from such advocate to the effect that the agreement or compromise is, in his opinion, for the benefit of the minor. A decree or order made in pursuance of the compromise of an appeal or other proceeding, to which a minor is a party, shall recite the sanction of the Court thereto and shall set out the terms of the compromise.

II. (I) No decree passed against a minor shall be set aside merely on the ground that the next friend or guardian for the appeal, petition or other proceeding of the minor had an interest in the subject-matter of the appeal, petition or other proceeding adverse 10 that of the minor, hut the fact that by reason of such adverse
interest of the next friend or guardian for the appeal, petition or other proceeding, prejudice has been caused to the interests of the minor, shall be a ground for setting aside the decree.

(2) Nothing in this rule shall preclude the minor from obtaining any relief from this Court available under any law by reason of the misconduct or gross negligence on the part of the next friend or guardian for the appeal, petition or other proceeding resulting in prejudice to the interests of the minor.

12. The provisions of this order, so far as they are applicable, shall apply to persons adjudged to be of unsound mind and to persons who, though not so adjudged, are found by the Court on inquiry, by reason of unsoundness of mind or mental infirmity, to be incapable of protecting their interests when suing or being sued.

13. Save as aforesaid, the provisions of Order XXXII of the Code relating to suits so far as applicable, shall apply mutatis mutandis to appeals and other proceedings in the Court.