Order XXXII CPC: Compromises and Challenging Decrees

Part 1 of this series explained how Order XXXII of the Code of Civil Procedure, 1908 provides representation for minors and persons of unsound mind: through a next friend for a minor plaintiff and a court-appointed guardian for the suit for a minor defendant. This part covers what happens after the appointment:

• the limits on the representative’s powers;
• compromises;
• removing a guardian who fails in his duty;
• the minor attaining majority;
• whether a decree passed against a minor who was not properly represented binds him.

Key takeaways

• An order made in a suit that affects a minor who has no next friend or guardian may be discharged (Rule 5).
• A compromise on a minor’s behalf needs the Court’s leave expressly recorded. Without it, the compromise is voidable at the minor’s instance (Rule 7).
• A minor must not be left undefended merely because the guardian fails to appear. A defaulting guardian must be replaced in accordance with Rule 11; the Court cannot treat the adult’s failure as a reason to dispense with the child’s representation.
• A formal appointment under Rule 3 remains mandatory. When examining an existing decree, however, courts distinguish a merely formal omission despite genuine, conflict-free representation from a failure that deprived the minor of protection. Curability is fact-sensitive, not permission to bypass the rule.
• A decree made without genuine representation may be treated as a nullity. But not every procedural defect, allegation of negligence or conflict automatically makes a decree void; the precise defect, prejudice, statutory provision and available remedy matter.

Everything goes through the representative (Rule 5)

Under Rule 5(1), every application to the Court on a minor’s behalf must be made by his next friend or guardian for the suit. The only exception is an application under Rule 10(2) to replace a next friend. Rule 5(2) provides the sanction. Any order made in a suit in which the minor “is in any way concerned or affected”, without the minor being represented, “may be discharged”. Where the pleader of the party who obtained the order knew or might reasonably have known of the minority, he may be made to pay the costs personally. The rule puts counsel on notice: failing to disclose that a party is a minor carries personal consequences.

Money, property and compromises (Rules 6 and 7)

Receiving money or property: Rule 6

Under Rule 6, a next friend or guardian for the suit needs the Court’s leave to receive money or other movable property for the minor under a compromise before decree or order, or under a decree or order in the minor’s favour. When leave is granted, sub-rule (2) requires security and protective directions where the representative is not a guardian of property appointed or declared by a competent authority, or is such a guardian but has a disability, known to the Court, affecting receipt of the property. A litigation appointment alone does not confer general guardianship of property.

Compromise on behalf of a minor: Rule 7

Rule 7(1) requires the Court’s prior leave, expressly recorded in the proceedings, before a next friend or guardian enters a suit-related agreement or compromise for a minor. Under sub-rule (2), an agreement made without that leave is voidable against all parties other than the minor. The lack of leave protects the minor, rather than giving the other parties an escape from their bargain on that ground. It does not prevent a challenge based on some other legally available ground, or make every compromise beneficial or otherwise lawful.

A proper application for leave should identify the minor’s rights, explain the proposed terms and provide material enabling the Court to assess their benefit. A relative’s signature, a family consensus or the mere recording of a settlement does not replace the required judicial assessment and express leave. These safeguards are emphasised in Mst. Bushra Bibi v. Additional District Judge, Bahawalnagar.

In Mst. Bushra Bibi v. Additional District Judge, Bahawalnagar (C.P.L.A. No. 30-L of 2025, decided 9 July 2026), the Federal Constitutional Court examined a compromise affecting minors’ inherited rights. Its decision concerned the combined circumstances of defective representation, absent Rule 7 leave and the required property safeguards, together with the pleaded fraud and disputed consent of a vulnerable representative. It is not authority that every procedural error automatically establishes a claim under section 12(2). On Rule 7, the Court held:

“A plain reading of the above provision leaves no room for ambiguity. It unequivocally prohibits a next friend or guardian ad litem from entering into any agreement or compromise on behalf of a minor unless the leave of the Court has first been obtained and such leave is expressly recorded in the proceedings… the Court must satisfy itself, on the basis of cogent material, that the proposed compromise is demonstrably beneficial to the minor and does not prejudice his or her proprietary or other legal rights…”

The Court restored the revisional court’s judgment. The compromise decree remained set aside and the suit was sent back for trial on the merits.

Leave under Rule 7 is not a substitute for a separate permission required by property law. Section 29 of the Guardians and Wards Act, 1890 restricts specified dealings in immovable property by a court-appointed or court-declared guardian of property, with express exceptions for the Collector and guardians appointed by will or other instrument. Section 31 requires necessity or evident advantage to the ward before the relevant permission is granted. Section 30 makes a disposal contrary to sections 28 or 29 voidable at the instance of an affected person. These provisions should not be described as making every transaction by every kind of guardian automatically void. Bushra Bibi requires the additional guardianship permission where the law requires it.

The guardian’s duty, and removing a guardian who fails (Rules 8 to 11)

A next friend cannot simply walk away. Unless the Court orders otherwise, he must find a fit replacement and give security for costs already incurred before retiring (Rule 8). Under Rule 9, the minor or a defendant may apply for his removal on any of these grounds:

• his interest is adverse to the minor’s;
• he is so connected with an adverse defendant that the minor is unlikely to be properly protected;
• he does not do his duty;
• he stops residing in Pakistan; or
• any other sufficient cause.

When a next friend retires, is removed or dies, Rule 10 requires the proceedings to be stayed until a replacement is appointed. An interested person may seek the appointment under sub-rule (2). Replacing the adult does not change the fact that the minor is the claimant whose interests must be protected.

For a guardian for the suit, Rule 11 allows the Court to permit him to retire, or to remove him, where he “does not do his duty” or other sufficient ground appears. The Court must then appoint a new guardian. In Muhammad Amjad Khan Afridi v. Shad Muhammad (PLD 2022 SC 27), the Supreme Court held that this is not optional:

“Reading of the above Rule leaves little room to speculate as to what a Court is to do if the guardian ad litem appointed by it does not do his duty… The failure of a guardian ad litem to appear in Court to defend the minor is by itself a clear proof of the fact that he has failed to do his duty of protecting the interests of the minor. The Court, in such circumstance, must act in accordance with Rule 11 of Order XXXII of the C.P.C., remove that guardian, and appoint a new guardian in his place, for the protection of the interests of the minor.”

The Court set aside the ex parte decree against the appellants who had been minors, but not against their adult co-appellant. It relied on its earlier decision in Mst. Fauzia Parveen v. Mst. Sahib Khatoon (1988 SCMR 552), where a mother appointed as guardian had failed to appear: “As the Court happens to be the custodian of the interest of the minors it has to be watchful whether a party discharges its duty or not.”

Mst. Rooh Afza v. Sher Aman Khan (PLD 1993 Peshawar 49) likewise rejected proceeding ex parte against minors whose proposed guardian did not appear and whose interests were not properly represented. If no suitable private person is willing to act, Rule 4(4) permits appointment of a court officer. The point is that an adult’s default cannot leave the minor unrepresented; this does not prohibit every interim application described as “ex parte”, or guarantee that a properly defended minor will win the case.

The representative must act to protect the minor, not merely lend a name to the record. In Muhammad Qayyum through L.Rs. v. Haq Nawaz Dogar (2015 CLC 1320), the Court Reader acting as guardian did not cross-examine material witnesses; fraud was specifically pleaded and the minors’ interests had not been protected. In setting aside the decree on the facts, the Lahore High Court observed:

“It is the duty of the guardian ad litem not to act against the minors’ interest and if decree is passed due to negligence of the guardian ad litem the minor is not bound to the said decree… The guardian ad litem is the trustee of the rights of the minor.”

Is a decree against an unrepresented minor void or voidable?

The authorities distinguish formal defects from serious failures of representation, but the categories are not a mechanical checklist. Read the statutory provision, the actual conduct of the representative and the relevant judgment together. The following distinctions help explain the cases without treating every defect as a nullity.

1. A formal defect despite effective representation: the decree may remain binding

In Abdul Razzaq v. Additional District Judge (2016 YLR 2694), the Lahore High Court discussed Supreme Court decisions distinguishing genuine protection of a minor’s rights from a merely nominal appearance. The authorities and practical distinctions include:

• Tanveer Mahboob v. Haroon (2003 SCMR 480): the missing formal order under Rule 3 “would not affect the proceedings in the suit and the decree if ultimately passed, unless it is shown that due to omission of appointment of guardian ad-litem of a minor, who was being represented by his natural guardian, the minor was caused prejudice”. The irregularity was “curable under section 99 of the Civil Procedure Code“.
• The relevant inquiry concerns actual conduct: who appeared, whether the minor’s distinct rights were defended, whether there was an adverse interest, and whether the omission caused prejudice. Family relationship alone cannot establish adequate representation.
• Mst. Muhammadi v. Ghulam Nabi (2007 SCMR 761), discussed in Abdul Razzaq, concerns the effect of non-compliance with Rule 12 after majority and the need to examine prejudice. It should not be presented as dispensing with every mandatory requirement of Order XXXII, particularly the express leave required by Rule 7.
• Appointment of a court officer under Rule 4(4) does not make the decree immune from challenge. The officer must actually discharge the protective duties, as Muhammad Qayyum (2015 CLC 1320) illustrates.

2. Negligence, fraud or failure of duty: grounds for setting aside must be established

A defective defence may justify relief, but an allegation of negligence is not automatically fraud or want of jurisdiction. The facts, prejudice and grounds of the chosen remedy must be established. Muhammad Qayyum involved specifically pleaded fraud and serious failures of protection. Where the challenge is based on fraud, misrepresentation or want of jurisdiction, section 12(2) CPC requires an application to the Court which passed the final judgment, decree or order, not a separate suit. Depending on the defect, an appeal or an application under Order IX Rule 13 may instead be appropriate. The remedies are not interchangeable.

3. A genuine absence of lawful representation: the decree may be a nullity

In Rashid-un-Nisa v. Muhammad Ismail Khan (1909) ILR 31 All 572, the Privy Council held that the minor had not been made a party in the proper legal sense. Her uncle had an adverse interest, and her married sister was disqualified under section 457 of the former procedural Code then applicable. That historical marital-status restriction must not be mistaken for present Pakistani law: Rule 4 of Order XXXII does not disqualify an otherwise eligible woman merely because she is married.

In Mashal Khan v. Fazal Karim (PLD 1963 (W.P.) Peshawar 93), as reproduced in Baghi Gul v. Ali Waz Khan (2003 CLC 1147), the Court explained the historical distinction:

“…once it is held that the minor was not duly represented in the proceedings which culminated in a decree or order against him, the decree must be regarded as a nullity or void, and not merely voidable at the instance of the minor on attaining majority. The authorities have clearly… drawn a distinction between the case where a duly appointed guardian of the minor acts negligently or fraudulently, and a case where it cannot be said that there was any duly appointed guardian. In the former case the only course open to the minor is to have the decree set aside, but in the latter he is entitled to regard the decree as a nullity and not binding on him. He need not sue to have it set aside.”

This distinction does not establish a universal rule that any prejudice converts a decree into a nullity, or that every absent appointment order is incurable. The nature of the failure and the actual representation must be examined. The historical statement that a minor need not sue must also be read with today’s procedural law, including the express bar on a separate suit under section 12(2) for the grounds specified there.

• Mst. Rooh Afza (PLD 1993 Peshawar 49): “A decree passed against an unrepresented minor is a decree against a person not a party to the suit and is, therefore without jurisdiction and void.”
• Baghi Gul v. Ali Waz Khan (2003 CLC 1147): the added minor defendants had filed only a power of attorney and were not properly protected through a guardian. The Peshawar High Court set aside the appellate judgment and remitted the matter for a fresh decision after appointment of a guardian.
• Yar Muhammad v. Mst. Amanat (1988 CLC 1355): the Sindh High Court held that “in the absence of appointment of guardian-ad-litem of the minor defendants the trial Court had no jurisdiction to proceed against the minors and pass decree in the suit”, and remanded the case.
• Setting aside a decree for defective representation does not necessarily terminate the underlying claim. In Yar Muhammad v. Amanat (1988 CLC 1355), the case was remanded so that proper representation—or direct service on those who had meanwhile attained majority—and an opportunity to defend could be provided.

The central concern is genuine protection, alongside compliance with mandatory safeguards. In Abdul Razzaq (2016 YLR 2694), minority was concealed and adult siblings filed a power of attorney but then failed to defend. That was not effective representation. Conversely, decisions excusing a harmless formal omission are not permission to omit appointment, notice or the leave required for a compromise.

Remedies available to a minor

• During the suit. Apply under Rule 9 or Rule 11 to remove a next friend or guardian. Apply under Rule 5(2) to discharge orders made without representation. Apply under Order I Rule 10 to bring omitted minor heirs on record.
• Against an ex parte decree. Consider Order IX Rule 13, which addresses non-service of summons or sufficient cause preventing appearance, together with the protective obligations under Order XXXII. Muhammad Amjad Khan Afridi illustrates relief where the minor was left undefended through the guardian’s default. Plead the applicable grounds and meet the relevant limitation requirements.
• Fraud, misrepresentation or want of jurisdiction. Section 12(2) requires an application to the Court that passed the final judgment, decree or order and expressly excludes a separate suit on those grounds. Identify the competent court from the procedural history; do not assume that it is always the first-instance court. Abdul Razzaq, Muhammad Qayyum and Bushra Bibi must be read on their respective facts.
• Appeal or revision. Examine the available appeal first. A revision under section 115 CPC depends on its jurisdictional requirements, the applicable provincial text and any restrictions on the remedy. A High Court’s power to act on its own initiative is not an entitlement to rescue a late filing. Comply with limitation and seek any legally available extension on properly established grounds.
• A plea of nullity. Raise it through the competent procedure, including an appropriate challenge or objection where legally available, and obtain any necessary protective or stay order. Do not assume that calling a decree “void” permits disobedience, removes all time limits or authorises a declaratory suit barred by section 12(2).
• Limitation is remedy-specific. Article 44 of the Limitation Act, 1908 prescribes three years from majority for a ward’s suit to set aside a transfer of property by the guardian. It is not a general deadline for challenging decrees. Mehr Manzoor Hussain v. Muhammad Nawaz (2010 SCMR 1042) distinguishes a guardian’s transfer from a purported transaction made by the minor personally; it should not be cited as imposing Article 44 on every minor-related dispute. For each remedy, check its own time limit and starting point, and the applicable provisions concerning disability, fraud or extension. Minority or alleged nullity is not a safe reason to delay.

When the minor attains majority (Rules 12 to 14)

Under Rule 12, a plaintiff or applicant attaining majority must elect whether to continue or abandon the proceedings. Continuing requires an application to discharge the next friend and amend the title; notice to the next friend precedes discharge. A sole plaintiff who abandons may face the prescribed costs. Under Rule 13, a repudiating co-plaintiff may be removed only if not a necessary party; otherwise the Court may transpose that person as a defendant. Rule 14 permits an application to dismiss an unreasonable or improper suit, but requires notice, judicial satisfaction and a decision on costs; dismissal and costs against the next friend are not automatic.

Where a defendant attains majority, the Court should be informed and the representation regularised so that the adult can arrange the defence. Continuing procedural representation does not extend minority, and silence does not automatically validate an earlier unlawful compromise or waive every objection. Any issue of prejudice, election or subsequent conduct must be determined on the facts and under the applicable law.

The 2026 guidelines of the Federal Constitutional Court

In Bushra Bibi, the Federal Constitutional Court (Amin-ud-Din Khan CJ, with Ali Baqar Najafi and Syed Arshad Hussain Shah JJ) issued eight guidelines to all civil and revenue courts. In summary:

1. Ascertain at the earliest stage whether any party is a minor, and ensure strict compliance with Order XXXII before taking any substantive step.
2. Appoint a guardian ad litem strictly under Rule 3, after being satisfied that the guardian has no adverse interest.
3. Accept no compromise, admission, concession, relinquishment or consent affecting a minor’s rights or property unless it is lawful, demonstrably in the minor’s best interests, recorded with reasons, and compliant with Rule 7.
4. Where a minor’s property or inheritance rights are transferred or relinquished, ensure compliance with the Guardians and Wards Act, 1890, and obtain the Guardian Court’s permission where the law requires it.
5. Apply heightened scrutiny where the minor’s representative is illiterate, parda nasheen or otherwise vulnerable.
6. Stay vigilant for conflicts of interest between guardian and minor, and replace the guardian if necessary.
7. Do not dispose of proceedings affecting minors’ property or inheritance in undue haste. Every order must show the Court’s independent application of mind to the minor’s welfare.
8. Treat these safeguards as substantive, in light of Articles 4, 9, 23, 24, 25(3) and 35 of the Constitution, the doctrine of parens patriae, and the Injunctions of Islam on protecting the property of minors and orphans.

The Court also observed that a guardian “is merely a trustee of the minor’s property”. Any judicial process that allows a minor’s proprietary rights to be relinquished or alienated without scrupulous compliance with the statutory safeguards offends both the Constitution and the Injunctions of Islam.

Frequently asked questions

Can a mother be appointed guardian ad litem of her children?

Yes, if she meets Rule 4, consents and has no adverse interest. Being a mother, being married or being a co-owner is not itself disqualifying. A genuine conflict—for example, defending a sale made on a claim of sole ownership that denies the children’s shares—may make her unsuitable, as in Mst. Rooh Afza. The Court should appoint another fit, willing and conflict-free person, or a court officer if no suitable person is available.

May the Court leave a minor undefended because the guardian defaults?

No. Muhammad Amjad Khan Afridi (PLD 2022 SC 27) requires the Court to replace a guardian who fails to appear to protect the minor, rather than let that default deprive the minor of a defence. This protective rule is not immunity from an adverse decision after proper representation.

Is a compromise signed by a minor’s guardian binding?

The guardian’s signature alone is insufficient. Rule 7 requires prior leave expressly recorded, and the Court must examine lawfulness and benefit to the minor. Without that leave, the compromise is voidable in the minor’s favour; leave does not cure every other possible defect. Any additional permission required by the Guardians and Wards Act must also be obtained.

Does a guardian ad litem continue in the appeal?

Yes. Under Rule 3(5), the appointment continues through appeals, revisions and execution until the guardian retires, is removed, dies or is discharged by the Court.

Does Order XXXII apply to adults who lack mental capacity?

Rule 15 covers persons adjudged to be of unsound mind and those whom the Court finds, on inquiry, incapable of protecting their interests in litigation by reason of unsoundness of mind or mental infirmity. A diagnosis or disability label alone is not enough. Malik Arshad Hussain Awan (PLD 2024 SC 595) explains the Court’s inquiry and the limited litigation role of the guardian.

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