Suit Filed By Minor Without Appointing Next Friend Is A Curable Irregularity: Kerala High Court

The Kerala High Court on Tuesday held that a suit filed by a minor without a next friend need not be taken off from the file since the same is a curable irregularity and by filing a subsequent application, the defect can be cured.

Justice A. Badharudeen held that the defect can be cured by filing a separate petition for the same and that the suit can be proceeded thereafter. 

"...a minor who filed Suit without appointing a next friend as stipulated under Order 32 Rule 2 of C.P.C, can cure the defect by appointing a next friend seeking such prayer by filing a separate petition for the same and the Suit can be proceeded."

The respondents herein, a mother and her 6-year-old adopted son, had preferred an injunction suit before the Munsiff Court against the petitioner herein. 

Though the son was a minor, no next friend was appointed to proceed with the case. Later, an application was filed to amend the plaint by appointing a next friend.

The Munsiff Court found that a suit without a guardian for a minor is only an irregularity that could be cured at any stage prior to the decree. Accordingly, the application was allowed.

Aggrieved by this finding, the petitioner approached the High Court. 

Advocate B. Krishna Mani appearing for the petitioner contended that on a plain reading of Order 32 Rule 2 of the Code of Civil Procedure, it is emphatically clear that where a Suit is instituted without a next friend, plaint to be taken off the file.

However, Advocates Joby Cyriac and Kurian K Jose appearing for the respondents contested the petition. 

Placing reliance on the decision in Ahammed Pillai v. Subaida Beevi [1985 KLT 845], the Court noted that where the minor or insane is one of the plaintiffs, a final order of appointment of another as his next friend is unnecessary and all that is required is for another to have intimated the court that he is safeguarding the interest of the incapable plaintiff in the action.

Therefore, it was held that the legal question mooted by the petitioner to the effect that if a Suit has been filed by a minor without a next friend, it is not a curable irregularity and the same shall be taken off the file, is not the law. 

As such, it was held that the appointment of a next friend subsequent to the filing of the suit is not bad in law and that the common order impugned herein does not suffer from any perversity, irregularity or arbitrariness.

The petition was accordingly dismissed with a direction to the Munsiff Court to dispose of the suit not later than 6 months. 

Case Title: Krishna Moorthy Rao v. S. Bhanumathi @ Lakshmi & Anr

Citation: 2022 LiveLaw (Ker) 125

Click Here To Read/Download The Order