Since
a Minor is not capable of entering into a contract, even suit, which is instituted
by him, will be filed in his name by his "next Friend", i.e. any other
person who has attained majority in some way.
Such "Next Friend"
should be closely related to the minor so as to bonafidely ascertain the interests
of the minor, for instance father, mother, brother, sister etc, or guardian. He
does not become a party to the suit but merely represents minor's interest.
To
avoid any discourage vexatious--- litigation by such person, the code provides
that, the courts can order the next friend to give security for payment of all
the costs incurred or likely to be incurred by the defendant.
Any
person can be appointed, as the "Next Friend" or guardian of the minor
as long as he is of sound mind, has attained majority, has no interests adverse
to that of the minor's and he is not defendant or plaintiff in the suit.
Where
there is neither any guardian appointed by a competent Authority, nor any other
person fit and willing to act as a guardian for the suit, the Court can appoint
any of its officers as a guardian to the suit.
The court may direct
the costs incurred by such officer in his capacity as guardian to be borne by
:
- Any of / or all parties to the suit, or
- Out of property of the
minor, or
- Out of Any fund in the court in which minor, is interested.
A
"Next Friend" is not allowed to enter into any agreement/ compromise
on the minor's behalf, which may be in reference to the particular suit unless
the court permits him to do so.
A "next friend" may retire
but not before, he first recommends another person to take his place and gives
security for all the costs that have already been incurred in the suit.
ON
ATTAINING MAJORITY :
On attaining majority, it shall be at
the option of the minor plaintiff whether to proceed with the suit or opt out.
In
case he opts to proceed with the suit, he will have to make an application for
discharge of "Next Friend", and permission to proceed on own name.
In
case he opts out, he can apply for an order to dismiss the suit / application
on making payment of costs incurred by the opposite party or which has been paid
by his next friend.
