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 in favor 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 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

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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)

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

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sale in execution of the decree was void.

The defense 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 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:

(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.

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 (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;

(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

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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 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.

INTERPLEADER SUIT (SECTION 88 AND ORDER XXXV)

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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 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:

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 "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 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.

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