There are instances wherein a party to a suit dies leaving behind minors as his/her legal representative. The C.P.C. is clear on the fact that no suit lies against a minor. A minor has to be represented by a major. The question that arises before the Court in such instance is that who can be appointed as a guardian to represent the best interests of the minor in the suit. Order XXXII Rule 4 of the C.P.C deals with this aspect.
“4. Who may act as next friend or be appointed guardian for the suit.—(1) Any person who is of 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 such person is not adverse to that of the minor and that he is not, in the case of a next friend, a defendant, or, in the case of a guardian for the suit, a plaintiff.
(2) Where a minor has a guardian appointed or declared by competent authority, no person other than such guardian shall act as the next friend of the minor or be appointed his guardian for the suit unless the Court considers, for reasons recorded, that it is for the minor’s welfare that another person be permitted to act or be appointed, as the case may be.
(3) No person shall without his consent in writing be appointed guardian for the suit.
(4) Where there is no other person fit and willing to act as guardian for the suit, the Court may appoint any of its officers to be such guardian, and may direct that the costs to be incurred by such officer in the performance of his duties as such 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 or out of the property of the minor and may give directions for the repayment or allowance of such costs as justice and the circumstances of the case may require.”
The Apex Court in the case of Nagaiah v. Chowdamma, (2018) 2 SCC 504, explained the provision of Guardian-ad-litem as follows:
“It is by now well settled and as per the provisions of Order XXXII of the Code that any person who is of sound mind, who has attained majority, who can represent and protect the interest of the minor, who is a resident of India and whose interest is not adverse to that of the minor, may represent the minor as his next friend. Such person who is representing the minor plaintiff as a next friend shall not be party to the same suit as defendant. Rules 6 and 7 of Order XXXII of the Code specifically provide that the next friend or guardian in the suit shall not without the leave of the court receive any money or immovable property and shall not without the leave of the court enter into any agreement or compromise. The rights and restrictions of the natural guardian provided under the Hindu Guardianship Act do not conflict with the procedure for filing a suit by a next friend on behalf of the minor. Not only is there no express prohibition, but a reading of Order 32 of the Code would go to show that wherever the legislature thought it proper to restrict the right of the next friend, it has expressly provided for it in Rules 6 and 7 of Order XXXII of the Code. Rule 9 of Order XXXII, apart from other factors, clarifies that where a next friend is not a guardian appointed or declared by the authority competent in this behalf and an application is made by the 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, that the guardian ought not to be appointed as the next friend of the minor.”
The Supreme Court further held that Order XXXII Rules 1 and 3 of the CPC together make a distinction between a next friend and a guardian ad litem; i.e., (a) where the suit is filed on behalf of a minor, and (b) where the suit is filed against a minor. It was held that in case, where the suit is filed on behalf of the minor, no permission or leave of the court is necessary for the next friend to institute the suit, whereas if the suit is filed against a minor, it is obligatory for the plaintiff to get the appropriate guardian ad litem appointed by the court for such minor.
In light of the law laid down in the C.P.C. and thereafter in light of the law interpreted by the Apex Court it can be said that a “guardian ad litem” is a special guardian appointed by a court in which a particular litigation is pending to represent a minor/infant, etc. in that particular litigation and the status of guardian ad litem exists in that specific litigation in which appointment occurs.