Order XXXII CPC: Next Friend and Guardian ad Litem

A minor ordinarily conducts civil litigation through an adult representative, rather than independently retaining counsel and binding himself or herself by procedural decisions. This does not mean that a child cannot express wishes or provide relevant information. Order XXXII of the Code of Civil Procedure, 1908 (CPC) regulates representation in suits involving minors, including inheritance, partition and property disputes. It identifies who may act, the limits of that person’s authority, and the Court’s protective responsibilities.

This is the first of two articles on the scope of Order XXXII CPC. Part 1 covers the framework: who counts as a minor, the next friend of a minor plaintiff, the guardian for the suit (guardian ad litem) of a minor defendant, the bar on adverse interest, minor legal heirs of a deceased party, and persons of unsound mind. Part 2 deals with the guardian’s duties, compromises, removal of a guardian, and whether a decree passed against an unrepresented minor is void or merely voidable.

Key takeaways

• A minor sues through a next friend (Rule 1) and is sued through a guardian for the suit appointed by the Court (Rule 3).
• For a minor defendant, the guardian’s appointment requires a court order following the affidavit and notice requirements of Rule 3, including notice to the minor and the persons specified in sub-rule (4). Merely describing the minor as acting “through” a relative is not the prescribed appointment procedure. A minor plaintiff’s next friend is governed differently by Rules 1 and 4.
• No one whose interest is adverse to the minor may act for him. This includes a parent (Rule 4).
• Appointment as guardian ad litem confers authority for the litigation; it does not, by itself, appoint that person guardian of the minor’s person or property. The same individual may separately hold another lawful guardianship office.
• The Court has its own duty to protect minors, and in particular minor legal heirs of a deceased party, whether or not anyone applies. The Federal Constitutional Court has described the Order XXXII safeguards as substantive, not merely procedural.

What Order XXXII CPC covers

Order XXXII is headed “Suits by or against Minors and Persons of Unsound Mind” and has sixteen rules. They fall into five groups:

• Representation. The next friend (Rules 1 and 2), the guardian for the suit (Rule 3), and who may act as either (Rule 4).
• Control of the representative. Applications ordinarily go through the representative, subject to the Rule 10(2) exception; orders affecting an unrepresented minor may be discharged (Rule 5). Leave is required to receive money or other movable property within Rule 6, and to enter a suit-related agreement or compromise under Rule 7.
• Change of representative. Retirement, removal and death of a next friend or guardian (Rules 8 to 11).
• Attaining majority. Rules 12 to 14 regulate a former minor plaintiff’s or applicant’s choices, applications and possible costs. They do not provide an unconditional right to withdraw any suit or escape an existing decree.
• Extension and saving. The rules are extended to persons of unsound mind (Rule 15), and local laws on the subject are saved (Rule 16).

The Supreme Court summarised the purpose of the Order in Malik Arshad Hussain Awan v. United Bank Limited (PLD 2024 SC 595 = 2024 CLD 708):

“The mandate and wisdom of Order XXXII of the C.P.C. is to ensure smooth continuation of proceedings and expeditious trial of suits wherein a minor or a person of unsound mind sues or is sued. The concept of next friend or guardian for the suit is to provide proper representation to a minor or a person with unsound mind during litigation, in order to protect his interests…”

Who is a “minor” for the purposes of Order XXXII?

For civil litigation, section 3 of the Majority Act, 1875 ordinarily fixes majority at eighteen for a person domiciled in Pakistan. Majority is twenty-one where, before the person turns eighteen, a court has appointed or declared a guardian of the person’s person or property, or a Court of Wards has assumed superintendence of the property. A guardian for a suit under Order XXXII is expressly excluded from this exception. A litigation appointment alone therefore does not extend minority to twenty-one. The Act’s separate savings concerning matters such as marriage should not be confused with litigation capacity.

Minority is a question of fact that the Court must decide at the outset. Rule 3(1) requires the Court to be “satisfied of the fact of his minority” before appointing a guardian. The first of the guidelines issued by the Federal Constitutional Court in 2026 (discussed below) directs courts to ascertain “at the earliest stage of the proceedings” whether any party is a minor.

Minor plaintiffs: the next friend (Rules 1 and 2)

Under Rule 1, every suit by a minor is instituted in the minor’s own name by a person called the next friend. The minor is the plaintiff and the next friend conducts the suit for him. Prior court appointment of a next friend is not ordinarily required. The person files the suit and must meet the qualifications in Rule 4.

If a minor sues without a next friend, Rule 2 allows the defendant to apply to have the plaint taken off the file, with costs payable by the pleader or other presenter. However, neither removal of the plaint nor a costs order follows automatically: the Court must give notice, hear objections and make such order as it thinks fit. A defective description in the title is not necessarily equivalent to complete absence of a qualified next friend; actual representation and compliance with Rule 4 must be examined.

Minor defendants: appointing a guardian for the suit (Rule 3)

Rule 3 is the centre of Order XXXII. Sub-rule (1) is framed in mandatory terms: where the defendant is a minor, the Court, once satisfied of his minority, “shall appoint a proper person to be guardian for the suit for such minor.” The rule lays down the procedure:

1. Application. Either the plaintiff or someone in the name and on behalf of the minor applies for the appointment (sub-rule (2)). In practice the plaintiff files it with the plaint or as soon as a minor is brought on record.
2. Affidavit. The application must be supported by an affidavit verifying that the proposed guardian has no interest in the matters in controversy adverse to the minor, and that he is a fit person to be appointed (sub-rule (3)).
3. Notice. No order may be made without notice to the minor and to any court-appointed or declared guardian. If there is none, notice goes to the father or other natural guardian, and failing him to the person who has care of the minor. Any objection raised must be heard (sub-rule (4)).
4. Order of appointment. The Court passes a formal order appointing the guardian.
5. Continuity. Under Rule 3(5), the guardian continues through proceedings arising out of the suit, including appeals, revisions and execution, unless the appointment ends by retirement, removal or death. Attainment of majority should also be formally brought to the Court’s attention.

The appointment must not remain a label in the cause title or an application on which no order is passed. The Court must address suitability, absence of adverse interest and the prescribed notices. Its protective duty continues afterwards: Muhammad Amjad Khan Afridi v. Shad Muhammad (PLD 2022 SC 27) requires the replacement of a guardian who fails to appear to defend the minor, rather than allowing that default to leave the minor without a defence.

The Sindh High Court put it plainly in Khawaja Auto Cars Ltd. v. Haji Sharif Khan (1996 CLC 1337): “Under Order 32, Rule 3, the Courts are duty bound to appoint someone as guardian ad litem by passing such an order for the minor defendants whenever any minor is made a party in a suit.”

The continuation of proceedings after a party attains majority should not be left informal. The Court should be informed, the representative’s position regularised and the record updated so that the adult can conduct the case. Continuity under Rule 3(5) does not extend the statutory age of minority. Rule 12 expressly prescribes applications and discharge of the next friend for a plaintiff or applicant who becomes an adult; the consequences of an omission depend on the applicable rule and the facts.

Who may act as next friend or guardian ad litem? (Rule 4)

Rule 4 sets out who is eligible:

• Basic qualification. The person must be of sound mind and have attained majority.
• No adverse interest. His interest must not be adverse to the minor’s.
• Not on the other side. A next friend may not be a defendant, and a guardian for the suit may not be a plaintiff.
• Existing guardian first. If a competent authority has appointed or declared a guardian for the minor, only that guardian may act, unless the Court records reasons why the minor’s welfare requires someone else (sub-rule (2)).
• Consent. No one may be appointed guardian for the suit without his consent (sub-rule (3)).
• Court officer as last resort. If no fit and willing person is available, the Court may appoint one of its own officers. It may direct that his costs be paid by the parties or out of any fund in court in which the minor is interested (sub-rule (4)).

A court officer’s appointment is not, by itself, proof that the minor has been protected. In Muhammad Qayyum through L.Rs. v. Haq Nawaz Dogar (2015 CLC 1320), the Court Reader appointed as guardian failed to cross-examine material witnesses. The Lahore High Court intervened on the facts, including the pleaded fraud and failure to protect the minors. Actual performance of the guardian’s duties remains essential.

Next friend and guardian for the suit compared

Guardian for the suit vs. guardian of the person or property

A guardian ad litem is often confused with a guardian appointed under the Guardians and Wards Act, 1890, or with a parent as natural guardian. They are different offices. In Malik Arshad Hussain Awan the Supreme Court drew the distinction as follows:

“…their role is limited to the particular litigation or legal action for which they are appointed. Guardian for the suit is also called as ‘Guardian ad Litem’; the Latin term ‘ad litem’ means ‘for the lawsuit’. Thus, guardian for the suit is appointed by a court specifically for the duration of legal proceedings and his role is temporary and limited to the particular lawsuit or legal matter… A guardian of the person or property of a minor or a person of unsound mind, on the other hand, is a person legally appointed to manage all the affairs of another person.”

That case concerned a defendant alleged to lack mental capacity, but the distinction applies to minors too. The scope of any separate guardianship depends on the governing law and appointment: guardianship of property does not automatically confer every power concerning the person, or vice versa. Two practical consequences follow:

• A guardian of the person or property is not automatically the guardian for the suit. He has a preferential claim under Rule 4(2), but the Court must still make the appointment.
• A litigation appointment alone confers no general power to deal with the minor’s assets outside the case. Rule 6 separately controls receipt of money or other movable property in the circumstances it specifies. Where a proposed transaction falls within section 29 of the Guardians and Wards Act, 1890, prior permission of the competent guardianship court is also required. That section governs specified dealings by a court-appointed or court-declared guardian of property, subject to its express exceptions; it is not a universal provision governing every person called a guardian.

Adverse interest: when a parent cannot represent the child

The bar on adverse interest is the most important protection in Order XXXII. It appears in three places: the affidavit under Rule 3(3), the proviso to Rule 4(1), and the grounds for removing a next friend under Rule 9(1). Courts do not presume that a parent is a suitable representative merely because of the relationship.

The leading example is Mst. Rooh Afza v. Sher Aman Khan (PLD 1993 Peshawar 49). A mother was alleged to have sold the whole of the suit house, including her minor children’s inherited shares, claiming to be its sole owner. The Peshawar High Court held that she “was not a fit person to be appointed as guardian of her minor children since she has interest in the matter in controversy in suit adverse to her minor children”, and directed that another near relative or friend with no adverse interest be appointed.

The test is an actual adverse interest, not parenthood or co-ownership alone. Under Rule 4, a mother, father or other adult may be suitable if the statutory qualifications are met. Appointment to represent a child in litigation must not be confused with authority to dispose of the child’s property under personal law or guardianship legislation. Examples of circumstances requiring close examination include:

• a widow or widower co-sharer in the same estate who disputes the extent of the children’s shares;
• a parent defending a disputed transaction involving the children’s property where that parent’s personal interest conflicts with theirs;
• a relative aligned with the opposing party.

The Federal Constitutional Court has made this vigilance a standing direction. Among the guidelines it issued in Mst. Bushra Bibi v. Additional District Judge, Bahawalnagar (C.P.L.A. No. 30-L of 2025, decided 9 July 2026):

“(ii) A guardian ad litem shall be appointed strictly in accordance with Order XXXII, Rule 3, CPC, after satisfying the Court that the proposed guardian has no interest adverse to that of the minor.

…(vi) The Court shall remain vigilant to ensure that no conflict of interest exists between the guardian and the minor and, if necessary, appoint another suitable guardian in accordance with law.”

Minors who are not yet parties: joinder under Order I Rule 10

Where a minor whose presence is required has been omitted, joinder and proper representation must both be addressed. Order I Rule 10(2) CPC permits the Court, on application or on its own initiative and at any stage, to add a person who ought to have been joined or whose presence is necessary for effective and complete adjudication of the questions in the suit. Order XXXII is not confined to people already named as defendants; it also regulates suits and relevant applications made on a minor’s behalf.

When considering joinder under Order I Rule 10, the practical distinction is between necessary and proper parties:

• A necessary party is one “in whose absence no effective decree can be passed”, and non-joinder can be fatal to the suit.
• A proper party is one whose presence enables the Court to adjudicate all questions effectually and completely, even if no relief is claimed against him.
• Whether to add a party is a matter of judicial discretion, exercised on the facts of each case.

Joinder must also be read with the rules permitting representative litigation. For example, Order XXXI Rule 1 ordinarily permits a trustee, executor or administrator to represent beneficiaries in a property dispute with a third person, while allowing the Court to join beneficiaries where appropriate. It is therefore too broad to say that every heir must personally be joined in every estate-related suit.

In a partition suit determining the co-heirs’ respective shares, those whose rights will be adjudicated ordinarily need to be parties. The precise requirement depends on the relief, the nature of the suit and any lawful representative arrangement. Once a minor is joined as a defendant, Rule 3 requires a guardian for the suit. A child who cannot appropriately join as a co-plaintiff may, where joinder is warranted, be joined as a defendant and represented by a suitable person without an adverse interest.

Minor legal heirs of a deceased party

Minors often enter a suit as legal representatives of a party who dies while it is pending (Order XXII Rule 3 for a plaintiff; Rule 4 for a defendant). In Khawaja Auto Cars, the Sindh High Court held that the Court’s responsibility is greater here, not smaller:

“If the L.Rs. of any deceased are minors then responsibility is on the Court to protect their rights… the Courts are also bound to appoint a guardian ad litem when any defendant expires and leaves behind him/her any minor legal heir or legal representative… particularly in the present material world where everyone is interested in his/her own interests and none is ready to look after the interests of innocent minors.”

Concealing that newly impleaded heirs are minors is treated seriously. In Abdul Razzaq v. Additional District Judge (2016 YLR 2694), a plaintiff filed an amended plaint impleading the heirs of a deceased defendant. He did not disclose that two of them were minors and did not ask the Court to appoint a guardian. The Lahore High Court held that this “sufficiently proves the mala fide and the fraud committed by him”, and upheld the setting aside of the ex parte decree he had obtained.

Persons of unsound mind (Rule 15)

Rule 15 applies Rules 1 to 14, so far as applicable, to two classes of person:

• persons already adjudged to be of unsound mind; and
• persons who, though not so adjudged, the Court finds “on inquiry” to be incapable of protecting their interests because of unsoundness of mind or mental infirmity.

In Malik Arshad Hussain Awan v. United Bank Limited (PLD 2024 SC 595), the Supreme Court held that the Banking Court could conduct the Rule 15 inquiry and appoint a guardian for the litigation without requiring a prior declaration under the mental-health legislation considered in that case. Where there has been no prior adjudication, the Court must find, on inquiry, that unsoundness of mind or mental infirmity makes the person incapable of protecting his or her interests in the litigation. A bare allegation, diagnosis, age or disability label does not by itself establish that statutory test.

The Court’s own duty: parens patriae

Order XXXII does not depend on the parties raising objections. Order I Rule 10(2) allows the Court to add parties without an application. Rule 3 imposes the duty to appoint a guardian on the Court itself. Khawaja Auto Cars recognises that the Court should act on its own once it learns that a party has died leaving minor heirs.

In Bushra Bibi, the Federal Constitutional Court grounded this duty in the Constitution:

“In matters involving the rights and interests of minors, the Court cannot remain a passive spectator. Rather, it is under a positive and continuing obligation to ensure that the interests of minors are adequately protected… Viewed in this constitutional backdrop, the provisions of Order XXXII, CPC are not merely procedural in character; they constitute substantive safeguards designed to secure the effective protection of minors involved in judicial proceedings.”

The Court tied this obligation to the doctrine of parens patriae, to Article 25(3) of the Constitution (special provision for women and children), and to Article 35 (protection of the family and the child). It held that Order XXXII must receive a “purposive and progressive interpretation”. The consequences of that approach for compromises and decrees are the subject of Part 2.

Practical checklist

• Check the age of every party and every legal heir before filing, and again whenever a party dies.
• Identify the persons whose joinder is required by the relief and the applicable procedural rules. Do not omit a necessary minor heir merely because a parent is already a party; equally, check any lawful representative arrangement.
• For a minor defendant, file the Rule 3 application and the required affidavit promptly, including when a minor is substituted under Order XXII. For a minor plaintiff, ensure that the suit is properly instituted through a qualified next friend under Rules 1 and 4.
• Make sure notice issues under Rule 3(4) and that a written order of appointment is on the record.
• If every relative is conflicted or unwilling, ask the Court to appoint one of its officers under Rule 4(4).
• For a party who may lack mental capacity, ask the Court to hold the Rule 15 inquiry early.

Continue to Order XXXII CPC (Part 2): Compromises, Guardian’s Duties and Challenging Decrees. It explains Rules 5–14, the distinction between void and voidable acts, and the importance of choosing the correct remedy and limitation period.

Reviewed on 27 September 2026. This article provides general information on Pakistani law, not advice on a particular case. Provincial amendments, local court rules and the legislation governing a special forum must also be checked. Case summaries do not replace the full judgments. For advice on litigation involving minors, inheritance or property disputes, contact Legum Law Firm.