Guardian Ad Litem

Purpose of Rule: The Purpose of this rule is to ensure due and proper representation on behalf of minor defendant through a guardian ad litem. It is the duty of the court to appoint a guardian ad litem as soon as it becomes aware of the defendant's minority, and thereafter it cannot proceed ex-parte against a minor defendant. 

Duty of the Plaintiff: It is the duty of the plaintiff to apply for the appointment of a minor defendant's guardian ad litem. The guardian ad litem of a minor defendant is appointed by order of the court, whilst a next friend of minor plaintiff appoints himself by merely filing the suit on behalf of the minor. The appointment of a guardian ad litem ensures for the whole litigation including appeal and execution.

Disputed the Factum of Minority: Where the factum of minority is disputed, the court should determine it. A minor defendant is not considered to be a party to the suit till such time as he is represented by a guardian ad litem, and as such a decree obtained against a minor without a guardian ad litem can be declared as void, but where no prejudice has resulted, it may be sustained.

Ignorance of Decree: The minor can ignore the decree or can file a suit to set aside the decree. In such cases, the suit shall be deemed to be pending and an order to set aside the decree is not required. Where there are a number of defendants jointly interested and any one of them is minor, impleaded without a guardian ad litem, the entire proceedings shall be of no avail.

Application to Appeal and Execute Proceedings: The same principle applies to appeals and execution proceedings. Other remedies available to a minor against a decree are restoration under Section 5, an appeal under Section 96.

An Application for Review: An application for review under Section 114, an application under Order 9, Rule 13 on the ground of guardian's negligence, an application under Rule 5(2), or a suit to set aside the decree on the ground that it is a nullity. If the decree is set aside the minor is relegated to the original position and court can revive the suit under its inherent power. A guardian must act strictly in the interest of the minor and must set up the possible defence.

A Guardian ad Litem not a Party to the Suit: It is mandatory for the court to appoint the guardian ad litem. The list to be furnished under the law amendment need not be first exhausted, and the filing thereof is directory and not mandatory. As such a suit is validly instituted against a minor even if at the time of institution there is no guardian ad litem and limitation shall be saved by such institution.

Reference: PLJ 1982 Q 14: A defect in the procedure followed in appointing a guardian does not vitiate the decree, unless the minor is prejudiced as a result thereof.

Reference: 1993 CLC 1999: Where the minor's interest is represented by a guardian in the suit, the absence of formal order of appointment of a guardian is a curable irregularity.