A minor's suit is filed in court lacking jurisdiction. Can it be transferred?

The Minor as a Litigant: A Party Under Disability

The law treats a minor as a person under disability — incapable in law of acting for himself in litigation. Order XXXII of the Code provides that every suit by a minor shall be instituted in his name by a person called the next friend, while in suits where a minor is a defendant, the court shall appoint a guardian ad litem for the suit. This protective framework exists because the minor cannot personally waive rights, make concessions, or take binding procedural decisions. It is the court's duty, not merely a procedural formality, to guard the minor's interest at every stage. The duty of safeguarding the interests of the minor, as the law recognises, must be upon the court, for guardians and next friends are not invariably honest, and even if honest, are sometimes careless and lacking in intelligence.

This background becomes important because when a suit involving a minor is filed in a court lacking jurisdiction, the question is not merely one of procedure — it potentially affects the substantive interests of a person who cannot protect himself.

Section 24(5): The Explicit Answer

The answer to the question rests firmly on Section 24(5) of the Code of Civil Procedure. Sub-section (5), which was newly inserted by the Amendment Act of 1976, provides expressly that a suit or proceeding may be transferred under Section 24 from a court which has no jurisdiction to try it. This provision was inserted to resolve a conflict of judicial opinion that had persisted for decades. Before the amendment, one view — taken by some High Courts — was that an order of transfer could not be made unless the suit had been filed in a court which had jurisdiction to try it in the first instance. The contrary view, held by the Allahabad and Nagpur High Courts, was that the mere fact that the court of first instance had no jurisdiction did not oust the power of the High Court or District Court to transfer the suit to a competent court. Parliament, by enacting sub-section (5), adopted the Allahabad and Nagpur view and settled the law conclusively.

Therefore, when a suit involving a minor has been filed before a court lacking jurisdiction, whether pecuniary or territorial, the High Court or District Court possesses full power under Section 24 to transfer that suit to the court of competent jurisdiction.

How the Transfer Works in Practice

The transfer under Section 24 is a general and wide power, exercisable at any stage of the suit — whether before trial, during trial, or even in execution proceedings. The power may be exercised either on the application of any party or even suo motu — that is, by the court's own initiative without any application. This suo motu power is particularly significant in cases involving minors, where the minor's own next friend may have brought the suit in the wrong court, and there may be no defendant actively pressing a transfer.

The court to which the suit is transferred must be a court competent to try or dispose of the same. This competence refers principally to pecuniary jurisdiction and subject-matter jurisdiction. Notably, the transferee court need not have concurrent territorial jurisdiction — what matters is that it has intrinsic competence to deal with the subject-matter and has jurisdiction over the value of the claim. Once the suit is transferred, the question of the initial want of jurisdiction in the originating court cannot thereafter be used to challenge the decree passed by the transferee court. The Supreme Court, as well as High Courts, have consistently held that where a suit initially instituted in a court without territorial jurisdiction is transferred by the District Judge to a court having such jurisdiction, the decree passed cannot be challenged for want of initial competence.

Transfer Versus Return of Plaint: A Critical Distinction

Here one must pause to mark an important distinction, because the two remedies — return of plaint under Order VII Rule 10, and transfer under Section 24 — address the same defect of jurisdiction but operate very differently, and their consequences diverge sharply.

Where a plaint is returned to the plaintiff for presentation to the proper court, the suit is not transferred — it is as if the proceedings in the wrong court never took place. On presentation of the plaint to the proper court, the suit starts afresh; it is not treated as a continuation of the earlier proceedings. Any steps taken in evidence or otherwise before the earlier court are of no avail, and the suit cannot be directed to proceed from the stage at which it stood when the plaint was returned. The Supreme Court affirmed this in a decision arising from a suit for recovery of immovable property in which the plaint was returned for presentation to the court at Gurgaon — the subsequent court could not treat itself as a successor court proceeding from where the earlier proceedings had stopped.

Transfer under Section 24, by contrast, preserves the proceedings. Section 24(2) provides that the transferee court may, subject to any special directions in the transfer order, either retry the suit or proceed from the point at which it was transferred. This is a crucial advantage, particularly in a minor's suit where evidence may already have been recorded and valuable procedural steps already taken. A transfer, unlike a return, does not undo what has been done.

The Minor's Interests as a Paramount Consideration

There is a deeper reason why transfer, rather than return of plaint, is more appropriate when a minor's suit is involved. The court, when a minor is a party, is not merely a passive adjudicator of procedure — it has a parens patriae responsibility toward the minor. Under Order XXXII Rule 3A, no decree against a minor shall be set aside merely on the ground that the guardian had an adverse interest, unless prejudice has actually been caused to the minor's interests. The same protective instinct must animate the court's approach to a want of jurisdiction in a minor's suit. To simply return the plaint and force the minor's next friend to begin again would cause delay and potential prejudice to the minor, who bears no personal responsibility for the error of the person who chose the wrong court. The power of transfer under Section 24, exercised suo motu if necessary, is thus both procedurally available and substantively appropriate in such cases.

Consent and Compromise in Transferred Proceedings

One further feature of a transferred suit involving a minor deserves notice. Under Section 147, any consent or agreement as to any proceeding in a suit to which a minor is a party, given by the next friend or guardian with the express leave of the court, shall have the same force and effect as if the minor were under no disability. This provision continues to apply in the transferee court, as the guardian appointed by the original court continues as such throughout all proceedings arising out of the suit, including proceedings in any appellate or revisional court and any proceeding in execution of a decree. The change of court, in other words, does not disrupt the continuity of the protective regime built around the minor.

The law's position, stated plainly, is this: a court lacking jurisdiction need not be a dead end for a minor's suit. The High Court or District Court can intervene under Section 24 and transfer the matter to a competent court, saving the proceedings, protecting the minor's interests, and ensuring that a jurisdictional defect caused by an error of the next friend or the plaintiff does not become an irreversible misfortune for a party who has no voice of his own in litigation.