BHAISHANKER AMBASHANKER OZA Vs. MULJI ASHARAM

JUDGEMENT

(1.) This is a summons whereby the next friend of the plaintiff is called upon to show cause why he should not be made to deposit in Court such sum as the Honorable Judge may deem sufficient as security for the first defendant's costs of this suit.

(2.) It appears that the next friend and the plaintiff are both residents outside the jurisdiction of the Court and do not own immoveable property in British India, and under those circumstances, it is urged, the next friend ought to be directed to give security for costs.

(3.) The decision in Bombay, which has the most bearing upon this point, is the case of Bai Porebai V/s. Devji Meghji, (1898) I.L.R. 23 Bom. 100, 102. It appears from that case that it was laid down that except in exceptional cases neither an infant female plaintiff nor her next friend ought to be required to give security for costs. In his judgment, Sir Charles Farran says: If, then, the next friend of an infant plaintiff and not the infant plaintiff himself or herself is and has always been liable for the costs of the suit, a provision that a woman shall not be imprisoned for debt gives rise to no inference that the Legislature intended in any way to change the practice as to a female infant plaintiff giving security for costs. We think, therefore, that except in exceptional cases, the old practice ought still to be observed. The Advocate General urges that this ruling will permit of improper suits being filed by indigent persons as next friends of female infant plaintiffs. The same argument, if of weight, applies with equal cogency to the next friends of male infant plaintiffs. The answer to this appears to us to be that the Courts can be moved to stay a suit improperly brought on behalf of an infant and to remove an improper next friend of an infant and to substitute a proper person in his place.