Order 32 CPC | 'Next Friend' Of Minor Need Not Necessarily Be A Guardian U/S 4(b) Of Hindu Minority & Guardianship Act: Orissa High Court
The Orissa High Court has held that the 'next friend', as provided under Order XXXII of the Code of Civil Procedure (CPC), need not necessarily be a 'duly appointed guardian' as defined under Section 4(b) of the Hindu Minority and Guardianship Act, 1956 (the 1956 Act).Elucidating the position of law as to eligibility for appointment as 'next friend', the Single Bench of Justice Sanjay...
The Orissa High Court has held that the 'next friend', as provided under Order XXXII of the Code of Civil Procedure (CPC), need not necessarily be a 'duly appointed guardian' as defined under Section 4(b) of the Hindu Minority and Guardianship Act, 1956 (the 1956 Act).
Elucidating the position of law as to eligibility for appointment as 'next friend', the Single Bench of Justice Sanjay Kumar Mishra held –
“'Next friend' acts for the benefit of the “minor” or other person who is unable to look after his or her own interest or manage his or her own law suit, without being a regularly appointed guardian as per the Guardianship Act.”
Case Background
The parents of the petitioner met with a road accident in the year 2016. As a result of such accident, the father of the petitioner was declared as permanently disabled and treated as post hospitalized bedridden patient.
He had filed a motor accident claims case, pursuant to which the 3rd M.A.C.T-cum-A.D.J., Jagatsinghpur on 06.04.2022 awarded a sum of Rs.3,60,400/- along with interest @ 7% per annum from the date of filing of claim application till the date of payment to be made by the National Insurance Company Limited.
Before passing of the aforesaid award, the father of the petitioner died on 14.12.2021. However, the fact as to his death was not conveyed to the tribunal, which went on to pass the award in his favour. Subsequently, the mother of the petitioner also died in July 2022. After her death, only the petitioner and her minor niece (daughter of her pre-deceased elder sister) remained as legal heir of the deceased-claimant.
Accordingly, the petitioner, who is the younger married daughter of the deceased claimant, filed a petition on 14.10.2022 seeking to substitute the legal representatives in the claim case of the deceased and to get the awarded compensation amount in favour of the surviving legal heirs, i.e. herself and her niece. However, the tribunal on 15.11.2022 rejected the substitution petition.
On 02.01.2023, the petitioner again filed a petition before the tribunal, by executing a Vakalatnama signed by herself so also to represent her minor niece as 'next friend', praying for necessary correction in the judgment dated 06.04.2022 by substituting the names of the legal heirs and to recall the order dated 15.11.2022. But the said recall petition was also rejected by the Court below on technical ground.
While rejecting aforesaid petition, the Court though discarded the prayer of the insurance company to repudiate the claim made by the petitioner for suppressing the death of her claimant-father, it however raised eye-brows to the petitioner representing her minor niece as 'next friend', especially when her natural guardian/father is alive.
“The father of Subhalaxmi Nath is not claimed as dead. When the natural father is alive, the propriety of allowing any other person to be next friend involves the question of propriety. Such other person should not have any interest adverse to that of the minor, as required U/o. 32, Rule 4 C.P.C.,” holding thus, it had partially rejected the petition.
Being aggrieved by such partial rejection of the substitution petition, the petitioner brought the matter to the High Court in this writ petition.
Court's Observations
The Court made a reference to the observations made by the Supreme Court in N. Jayasree & Ors. v. Cholamandalam M/S General Insurance Company Ltd., Custodian of Branches of Banco National Ultramarino v. Nalini Bai Naique and Gujarat State Road Transport Corporation, Ahmedabad v. Ramanbhai Prabhatbhai & Anr., wherein it was commonly held that a legal representative is one who suffers on account of death of a person due to a motor vehicle accident and need not necessarily be a wife, husband, parent and child.
Therefore, the Single Bench held that the petitioner as well as her minor niece (grand-daughter of the deceased-claimant) both come under the term 'legal representative' to claim the compensation amount awarded in favour of the deceased.
Against the aforesaid factual backdrop, the vital questions which cropped for consideration were – (i) whether the provisions of CPC, more particularly Order XXXII is applicable to the proceedings under the Motor Vehicles Act; (ii) whether the petitioner can act as 'next friend' of her minor niece as per the provisions under Order XXXII of the CPC, especially when her (niece's) father/natural guardian is alive.
So far as the first question was concerned, reference was made to Rule 32 of the Odisha Motor Vehicles (Accident Claims Tribunal) Rules, 2019, which says that without prejudice to the provisions of Section 169 of the MV Act, every Claims Tribunal shall exercise all the powers of a Civil Court and in doing so for discharging its functions, shall follow the procedure laid down in CPC.
Therefore, Justice Mishra was of the considered opinion that Order XXXII of the CPC shall be applicable to the case in hand, which involves proceedings under the MV Act.
Order XXXII Rule 1 of CPC mandates that every suit by a minor shall be instituted in his name by a person who, in such suit, shall be called the 'next friend' of the minor and Rule 4 of the said Order prescribes as to who may act as the 'next friend' or be appointed as guardian for the suit.
“Sub-rule (1) of Rule 4 prescribes that 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.”
Hence, the Court was of the view that the next friend need not necessarily be a duly appointed guardian, as defined under sub-section (b) of Section 4 of 1956 Act. The next friend, it held, acts for the benefit of the minor or other person who is unable to look after his or her own interest or manage his or her own law suit, without being a regularly appointed guardian as per the Guardianship Act.
By placing reliance upon the decision of the Supreme Court in Nagaiah & Ors. v. Chowdamma (dead) by L.Rs. & Ors., the Bench held that the petitioner is competent to represent her niece as her 'next friend', for which no permission of the Court is required.
“Accordingly, the observation made by the Claims Tribunal vide order dated 02.01.2023 to the effect that when the natural father is alive, allowing any other person to be next friend involves the question of propriety so also rejection of Vakalatnama of the Petitioner for the minor is hereby set aside.”
Consequently, the Claims Tribunal was directed to allow the petitioner to represent her niece as the 'next friend' and proceed further in the claims case in accordance with law.
Case Title: Kabita Nath v. National Insurance Company Ltd., Cuttack & Anr.
Case No: W.P.(C) No. 6144 of 2023
Date of Judgment: December 24, 2024
Counsel for the Petitioner: Mr. D.K. Mohapatra
Counsel for the Respondent: Mr. P.K. Mahali, Advocate
Citation: 2025 LiveLaw (Ori) 20