CHAPTER 7

SPECIAL SUITS

SUITS BY OR AGAINST MINORS, LUNATIC, PUBLIC OFFICERS, ETC.

For procedural purposes, suits may be classified generally into two categories, namely:

(1) Suits in general; and

(2) suits in special cases. Sections 79 to 93 and Orders XXVII to XXXVII deal with
suits in special cases.

Suits by or Against Minors and Lunatics: Order XXXII

Q. Write short note on 'suit by or against minors or persons of unsound mind'.

According to section 37 of the Majority Act, 1875, "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 the superintendence
of a Court of wards, the age of majority is 21 years."

Order XXXII has been enacted to protect the interest of minors and lunatics (person of
unsound mind) and to ensure that they are represented in a suit by a person who is qualified
to act as such. Owing to his want of capacity and judgment, a minor/lunatic is disabled from
binding himself except where it is for his benefit. A decree passed infavor of minor/lunatic
without appointment of a guardian is not nullity but a decree passed against a minor/lunatic
without appointment of guardian is a nullity.

Filing or Defending of Suit on Minor's Behalf (Order XXXII, Rules 1-14)

Suits by Minor: Rules (1 to 2A) - Under these provisions, a suit by a minor should be
instituted in his name through his guardian or next friend. Under rule 2A, the Court has
power to order the next friend to furnish security for costs of defendant. The object is to
discourage vexatious litigation by the next friend of minor.

Rule 3 - Order XXXII, rule 377, where a suit is instituted against a minor the Court should
appoint a guardian ad litem to defend the suit. The appointment of such guardian or next
friend is for throughout the proceedings unless it is terminated by retirement, removal or
death of such guardian.

Qualifications as to be a Guardian or Next Friend

Under rule 4, any person who is competent in law to make a contract or who has attained
majority and is of sound mind, may act as a guardian or next friend, provided that his
interest is not adverse to that of minor, nor who is an opposite party in the suit and who has
given his consent in written to act as a guardian or next friend. However, besides all this
Court may also appoint any of its officer to act as a guardian/next friend if it is of the view

03-08-2017 (Page 1 of 10 ) www.manupatra.com National Law University Jodhpur

that no person is competent for that.

Power and Duties of a Guardian/Next Friend (Rules 5-7)

In all suits to which a person is appointed as a guardian/next friend can, without the leave of
the Court:

(1) Receive any amount, movable property by way of compromise.

(2) He cannot enter into any agreement or compromise on his behalf (minor's) in the
suit.

These two above mentioned conditions are mandatory and are provided specially in rules 6
and 7.

Rules 6 and 7 are designed to safeguard the interest of a minor during the pendency of a suit
against hostile, negligent or collusive acts of a guardian. They are based upon the general
principle that an infant litigant becomes the ward of the Court and the Court has got the
right/duty to see that the guardian acts property and in bona fide manner in the interest of
minors; Dhirendra Kumar v. Sughandhi Bain, MANU/SC/0130/1988 : AIR 1989 SC 147: JT
1988 (3) SC 778: (1988) 2 SCALE 1539: MANU/SC/0130/1988 : (1989) 1 SCC 85: (1988)
Supp 3 SCR 196.

Retirement, Removal or Death of such Guardian/Next Friend (Rules 8-11)

A next friend cannot retire without procuring a fit person for substituting him and giving
security for the costs already incurred by him (Rule 8).

The Court may remove a next friend in the following circumstances, if:

(i) his interest is 'adverse to that of a minor'; or

(ii) lie is so connected with the defendant as to make it unlikely that the minor's
interest will not be protected by him; or

(iii) he does not do his duty; or

(iv) he ceases to reside within India during the pendency of a suit; or

(v) for any other sufficient cause.

Where the guardian/next friend desires to go/retire or fails to discharge his duty or where
there are other justifiable grounds, the Court may permit such guardian or next friend to
retire or may remove him or may also make such order as it thinks fit.

On retirement, removal or death of a guardian or next friend, further proceedings in the suit
shall remain stayed until another competent guardian/ next friend is appointed. (Rule 10)

Minor Attaining Majority (Rules 12-14)

03-08-2017 (Page 2 of 10 ) www.manupatra.com National Law University Jodhpur

These provisions clears the situation of the proceedings and the duties of the next friend,
when minor attains majority. On attaining majority, a minor plaintiff may choose any of the
following:

(i) May proceed with the suit, discharging the guardian/next friend with the leave of
the Court.

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

(iii) May apply for withdrawal of suit on the grant of it being unreasonable or
inproper.

(iv) And in case, he is a co-plaintiff he may apply for repudiation of suit and may
apply to strike-off his name as co-plaintiff.

Decree against minor.--

Rule 3A lays down that no decree passed against a minor shall be set aside merely on the
ground that the next friend or guardian for the suit of the minor had interest in the subject-
matter of the suit adverse to that of minor. But if the minor is prejudiced by reason of such
adverse interest, it shall be a ground for setting aside the decree.

In Ramchandra Arya v. Mansingh, MANU/SC/0352/1967 : AIR 1968 SC 954: 1968

(16) BLJR 610:

(1968) 2 SCR 572, one Ramdas filed a suit for recover)' of certain sum against Ramlal in
Court of Judge, small causes. That suit was transferred to the Court of Munisif and an ex
parte decree in that suit was passed, after the Court held that Ramlal was sufficiently served.
In execution of the decree, the house of Ramlal (of unsound mind) was sold and sale
certificate was issued in favour of one Prabhudayal. However, Ramlal continued to live in the
house and he died leaving no heir, the property by escheat passed to Maharaja of Jaipur.

Prabhudayal filed a suit for possession of the house. The suit was contested on the ground
that Ramlal was a lunatic and earlier suit instituted against Ramlal without appointment of a
guardian ad litem, the decree in the suit was a nullity. The sale in execution of the decree
was void.

Thedefense was accepted by Trial Court and suit was dismissed. The first Appellate Court
also upheld the decision. The Bench of the High Court also confirmed the decision of lower
courts, consequently the appellant has come up to the Apex Court by special leave. The
Supreme Court held:

The decree was passed in contravention of Order XXXII, rule 15 of the Code of Civil
Procedure, 1908 Ramlal was insane when the first suit was instituted as well as when the
house was sold in execution of decree passed in the suit. It is settled that decree passed

03-08-2017 (Page 3 of 10 ) www.manupatra.com National Law University Jodhpur

against a minor without appointment of a guardian null and void. This principle becomes
applicable to the case of lunatic in view of Order XXXII, rule 5 of the Code of Civil Procedure,
1908, so that decree obtained against Ramlal be created as without jurisdiction and void.

In this case no right could be acquired by the purchaser Prabhudayal.

Kasturi Bai v. Anguri Chaudhary, (2003) 1 SCALE 735: 2003 (2) BLJR 1350: JT 2003 (2) SC
159: (2003) 2 MLJ 54 (SC): (2003) 3 SCC 225: (2003) 1 SCR 892: 2003 (2) UJ 835 (SC),
the plaintiff respondent filed a suit against the appellant for partition of certain immovable
properties. The appellant No. 1 herein at relevant point of time aged 87, she deluged that
because of increased age she is unable to understand and give directions to her lawyer and
requested the court to summon her for inquiring about her state of mind and upon medical
examination, if necessary, a guardian be appointed for defending her suit.

The leaned trial judge dismissed the said application of plaintiff respondent. Plaintiff-
respondent filed a revision application in terms of section 115 of the Code of Civil Procedure,
1908 before the High Court. The High Court allowed the revision application stating:

The Trial Court acted with material irregularity in rejecting the application of the
plaintiff-respondent under Order XXXII, rule 15 of the Code of Civil Procedure, 1908
for appointment of guardian the appellants filed an application for recalling of the said
order, inter alia, on the ground that notices were not served upon them. This
application instead of being disposed by single judge was placed before a Division
Bench of High Court. The bench considered the application to be an appeal against
the order of learned single judge and dismissed the same by impugned order.

The Supreme Court held:

The learned Trial Court refused to hold enquiry so as to enable it to arrive at a finding
as to whether the respondent was incapable of protecting her interest by reason of
her mental infirmity. The learned single Judge committed a jurisdictional error in
passing the impugned judgment. The Division Bench committed a manifest error in
treating the application for recalling as an appeal against the order passed by the
learned single judge of High Court.

The impugned judgment is set aside and the matter is directed to be remitted to the learned
trial Judge for consideration of the matter afresh strictly in terms of Order XXXII, rule 15 of
the Code of Civil Procedure, 1908.

SUITS BY OR AGAINST GOVERNMENT OR PUBLIC OFFICERS: SECTIONS 79-82:

ORDER XXVII

Section 80 of the Code of Civil Procedure, 1908, however, declares that no suit shall be
instituted against a public officer in respect of any act, purporting to be done by such public
officer in his official capacity, until the expiration of two months notice in written delivered
to, or left at the official of:

03-08-2017 (Page 4 of 10 ) www.manupatra.com National Law University Jodhpur

 (a) in case of a suit against the Central Government (except where it relates to a
railway) - a Secretary to that Government.

(b) in case of a suit against the Central Government where it relates to a railway - the
General Manager of that railway.

(c) in case of a suit against the Government of Jammu and Kashmir, the Chief
Secretary to that Government, or any other official authorised by that Government in
this behalf.

(d) in case of a suit against any other State Government Secretary to that
Government or Collector of that District.

(e) in case of a public officer, delivered to him or left at his office, stating the cause-
of-action, the name, description and place of residence of the plaintiff and the relief
which he claims.

The basic object behind this mandatory provision of section 80 is that an opportunity is given
to the Government concerned or public officer to consider the legal position and to settle the
claim, asked against that Government concerned or officer as the case may be. The
Government unlike private parties, is expected to consider the matter properly and after
obtaining proper legal advise, two months period is given in the public interest.

The legal position and objective was broadly examined in a leading case of; Bihari Choudhary
v. State of Bihar, MANU/SC/0004/1984 : AIR 1984 SC 1043: 1984 (32) BLJR 219: (1984) 1
SCALE 536: MANU/SC/0004/1984 : (1984) 2 SCC 627: (1984) 3 SCR 309: 1984 (16) UJ 619
(SC).

Q. Write short note on 'notice under section 80, CPC'.

For constituting a legal notice, as mandatorily provided by section 80 must contain: (a) the
cause-of-action, (b) the name, description and place of residence of the plaintiff, and (c) the
relief which he claims; and the plaint must contain a statement that such notice has been so
delivered or left. Failure to comply with such requirements will entail dismissal of suit.

In case of State of Andhra Pradesh v. Gundugola Venkata Suryanarayana,

MANU/SC/0255/1963 : AIR 1965 SC 11: (1964) 4 SCR 945 the Hon'ble Supreme Court laid
down following test to find out whether the essential requirements of section 80, have been
complied with or not:--

(i) whether the name, description and residence of the plaintiff are given so as to
enable the concerned Government or authorities to identify the person giving the
notice;

(ii) whether the cause-of-action and the relief which the plaintiff claims have been set
out with sufficient particulars;

03-08-2017 (Page 5 of 10 ) www.manupatra.com National Law University Jodhpur

 (iii) whether such notice in writing has been delivered to or left at the office of the
appropriate authority mentioned in the section; and

(iv) whether the suit has been instituted after the expiration of two months after
notice has been served, and the plaint contains a statement that such a notice has
been so delivered or left.

Section 80(2) than carves out an exception to the general rule, and lays down that a suit to
obtain an urgent relief can be instituted with the leave of the court "without serving the two
months statutory notice." However, even if suit is so allowed to be instituted the Court
cannot grant any relief, interim or otherwise, unless the Government or the public officer has
been given a reasonable opportunity of showing cause in respect of such relief.

Section 80 also clarifies that such a suit is not to be dismissed by the Court merely because
of any error or defect in the notice, if such a notice:

(a) the name, description and residence of a plaintiff had been so given as to enable
the appropriate authority to identify the person serving the notice.

(b) the cause-of-action and relief claimed has been substantially indicated.

Section 80(3) of the Code of Civil Procedure, 1908 provides that no suit against the
Government or public officer shall be dismissed merely on the ground of error or defect (any
technical) in the notice or any irregularity is service of the notice if the abovementioned two
conditions are fulfilled.

In case of Vasant Ambadas Pandit v. Bombay Municipal Corpn., MANU/MH/0348/1981 : AIR

1981 Bom 394: (1981) 83 Bom LR 248 the court held that though a notice under section 80
is a mandatory provision and it should be complied with to meet the ends of justice properly
but on the question whether this condition (requirement) could be waived by the party, it
was held that it is open to Government or the concerned officer to waiver this condition.

Does the term "Government" in section 80 of the Code of Civil Procedure, 1908, means and
includes:

"Semi Government organisation"

In Kanta Prasad Singh v. Regional Manager F.C.I., MANU/BH/0104/1974 : AIR

1974 Pat 376, held that the capital of the corporation was provided by the
Central Government, as that its working was supervised or directions were
issued by the Government does not make it a "Government" within the
meaning of section 80. Although Code of Civil Procedure does not define
"Government" but it cannot include a corporation constituted under and Act of
Parliament.

In Kerala State Electricity Boards case, MANU/KE/0021/1989 : AIR 1989 Ker 89, it was

03-08-2017 (Page 6 of 10 ) www.manupatra.com National Law University Jodhpur

observed that a statutory body as Electricity Board of F.C.I., or any other category may be
instrumentality of the State but it would not answer the description of the "Government" as
understood by law.

Thus Government or Semi Government organisation or corporation are different from the
"Government authorities" therefore, issues of notice under section 80 of the Code of Civil
Procedure, 1908 is not a precondition for the filing of the suit against them.

Sahebgouda (Dead) by LRs v. Ogeppa, MANU/SC/0257/2003 : (2003) 6 SCC 151: (2003) 3

Cal LT 44 (SO: JT 2003 (3) SC 338: (2003) 2 MLJ 143 (SC): (2003) 3 SCALE 446: (2003) 3
SCR 90: 2003 (2) UJ 914 (SC). In this case:

Facts: The original suit by plaintiff-appellants in the court of Munsif, Bijapur was filed for
declaration that plaintiff are ancestral pujaris and have pujakiri rights of performing puja in
Amogsiddha temple at all times by turn among themselves and a consequential decree of
permanent injunction restraining defendants from interfering in plaintiff's right of puja of
Amogsiddh God in the temple.

In the pleading of the parties the Munsif framed 11 issues and issue 8 was whether the suit
was barred on account of section 79 and section 80 of the Bombay Public Trust Act. The
learned Munsif decided issue 8 in favour of appellants and held that suit was not barred by
aforesaid provisions of the Act.

Feeling aggrieved the appellants as well as respondents 2, 4 and 6 preferred appeals against
the decree. The first Appellate Court allowed the appeal of the appellants and dismissed the
appeal of the respondent and decree passed by the Trial Court was modified. The appellants
were held to be hereditary pujaris of Amogsiddha Temple and respondents were prohibited
to cause obstruction in peaceful performance of puja by appellants.

Respondents preferred second appeal from judgment of Appellate Court. The High Court
hearing second appeal directed to file the application for registration of the temple before the
Assistant Charity Commissioner. The question whether temple is public trust could only be
decided by Assistant Charity Commissioner and not Civil Court which was barred in section
80 of the Bombay Public Trust Act. The second appeals were allowed and the suit filed by
appellants was dismissed.

The appellants made appeals by special leave against judgments and decree dated 2nd July,
1992 of the High Court, Karnataka.

The Supreme Court allowed the appeals and set aside the decree of the High Court on the
following grounds.

The only relief claimed is declaration regarding the rights of appellants to function as
hereditary pujaris and a consequential decree for injunction for restraining the respondents
from interfering with the aforesaid rights of the appellants. Therefore, the bar of section 80
of the Bombay Public Trust Act, which by the express language used is would not apply.

03-08-2017 (Page 7 of 10 ) www.manupatra.com National Law University Jodhpur

INTERPLEADER SUIT (SECTION 88 AND ORDER XXXV)

Q. What do you mean by 'Interpleader suit'?

"To interplead" means "to litigate with each other to settle a point concerning a third party. "
An interpleader suit is a proceeding by which a person from whom some persons are
claiming same property, debt or money and who does not himself claim such property debt
or money and neither dispute such debt, such person can file a suit claiming that he is ready
to pay or deliver the said property or money to rightful claimant and can protect himself
from legal proceedings by calling upon such claimants to interplead, that is to say claim
against one and other so that title to the property or the debt may be decided. Meaning
thereby, an 'interpleader suit' is a suit in which the real dispute is not between the plaintiffs
and defendants but between the defendants only and the plaintiff is not really interested in
the subject-matter of the suit.

Section 88 of the Code of Civil Procedure, 1908 provides that,--

Where two or more persons claim adversely to one another the same debts, sum of
money or other property, movable or immovable, from another person, who claims no
interest therein other than for charges or costs and who is ready to pay or deliver it to
the rightful claimant, such other person may institute a suit of interpleader against all
the claimants for the purpose of obtaining a decision as to the person to whom the
payment or delivery shall be made and of obtaining indemnity for himself:

Provided that where any suit is pending in which the rights of all parties can
properly be decided, no such suit of interpleader shall be instituted.

Conditions to Institute Interpleader Suit

Following conditions must be satisfied to institute an interpleader suit:

(a) there must be some debt, sum of money or other property movable or immovable
in dispute;

(b) two or more persons must be claiming it adversely to one another;

(c) the person from whom such debt, money or property is claimed, must not be
claiming any interest therein other than the charges and costs and he must be ready
to pay or deliver it to rightful claimant; and

(d) there must be no suit pending in which the rights of the rival claimants can be
properly decided.

Procedure

Order XXXV lays down the procedure relating to an interpleader suit. Rule 1 says that:

"Plaint in interpleader suit - In every suit of interpleader the plaint shall, in addition to

03-08-2017 (Page 8 of 10 ) www.manupatra.com National Law University Jodhpur

 the other statements necessary for plaints, state--

(a) that the plaintiff claims no interest in the subject-matter in dispute other
than for charges or costs;

(b) the claims made by the defendants severally; and

(c) that there is no collusion between the plaintiff and any of the defendants."

Rule 2 provides for the procedure of payment of thing claimed into court. It says:

"Where the thing claimed is capable of being paid into court or placed in the custody
of the Court, the plaintiff may be required to pay or place it before he can be entitled
to any order in the suit."

In Syed Shamshul Haque v. Sitaram Singh, MANU/BH/0033/1978 : AIR 1978 Pat 151: 1978
(26) BLJR 325, it was held that, when the dispute relates to a thing payable the Court may
require the same to be paid or placed in the custody of the Court as per rule 2 of Order
XXXV.

Rule 3 lays down the procedure where defendant is suing plaintiff in the following words:

"Where any of the defendants, in an interpleader-suit is actually suing the plaintiff in

respect of the subject-matter of such suit, the court in which the suit against the
plaintiff is pending shall, on being informed by the Court in which the interpleader-suit
has been instituted, stay the proceedings as against him; and his costs in the suit so
stayed may be provided for in such suit; but if, and in so far as, they are not provided
for in that suit, they may be added to his costs incurred in the interpleader-suit."

Procedure at first hearing is being provided under rule 4 as under:

"(1) At the first hearing the court may-

(a) declare that the plaintiff is discharged from all liability to the defendants in
respect of the thing claimed, award him his costs, and dismiss him from the
suit; or

(b) if it thinks that justice or convenience so require, retain all parties until the
final disposal of the suit.

(2) Where the Court finds that the admissions of the parties or other evidence enable
it to do so, it may adjudicate the title to the thing claimed.

(3) Where the admissions of the parties do not enable the Court so to adjudicate, it
may direct--

(a) that an issue or issue between the parties be framed and tried, and

(b) that any claimant be made a plaintiff in lieu of or in addition to the original

03-08-2017 (Page 9 of 10 ) www.manupatra.com National Law University Jodhpur

 plaintiff, and shall proceed to try the suit in the ordinary manner."

In Edwyn Anthony Fereira v. R.K. Kuppuswamy Iyengar, MANU/AP/0786/2003 : AIR 2004 AP

165, at a particular stage since the opening of the packet was considered to be essential in
the interest of both parties, the counsel representing the revision petitioner/first defendant
also reported no objection if the Court permits the same and in view of the same, the
impugned order was passed. The same defendant, i.e., first defendant, who is no more,
again raises an objection to the procedure adopted by the Court below. This is totally
unjustified and unwarranted. Evidently, the deceased first defendant was not interested in
the disposal of the matter and that is why the present revision was thought of with a view to
stall the further proceedings. It is no doubt true that the said petitioner is no more and at
present the legal representatives are prosecuting the present petition. The Court, therefore,
rejected the objection for opening of sealed cover by defendant at the stage of recording
evidence on the ground that the court has not adopted proper procedure Order XXXV, rule 4.

Who cannot File Interpleader Suit (Order XXXV, rule 5)

An agent cannot sue his principal, or tenant his landlord for the purpose of compelling them
to interplead with any persons other than the persons claiming through such principal or
landlords. Rule 5 reads as under:

"Nothing in this Order shall be deemed to enable agents to sue their principals, or
tenants to sue their landlords, for the purpose of compelling them to interplead with
any persons other than persons making claim through such principals or landlords."

Universal law Publishing Co.

03-08-2017 (Page 10 of 10 ) www.manupatra.com National Law University Jodhpur