CHIKKANNA CHETTY Vs. DHANAKOTI NARAYANA CHETTIAR

JUDGEMENT

(1.) The learned District Judge has made an order directing the plaintiff to pay his next friends a portion only of the costs incurred by them. The only question argued in the Lower Court as well as here relates to the costs payable to the next friends. Are they entitled to the full costs incurred by them as contended for on their behalf or only to a portion of those costs as held by the learned District Judge? There is a third alternative, the one raised in the memorandum of objections, namely, are they entitled to no costs at all? Ordinarily I should be reluctant to interfere with the discretion exercised by the trial Court in the matter of costs; but in this I case I am afraid that the Lower Court has overlooked the plain provisions of law bearing on the subject.

(2.) On the minor plaintiff attaining majority, he elected to I abandon the suit and applied for its dismissal. Order 32, Rule 12(4), I Civil Procedure Code, provides, "Where the minor elects to abandon the suit, he shall apply for an order to dismiss the suit on repayment of the costs which may have been paid by the next friend"; I am quoting only the material portion of the section. Under this provision the costs paid by the next friend are prima facie repayable by the minor. Then follows Rule 14 of the same Order. That refers to where the suit was instituted unreasonably or improperly. The rule says that upon the Court being satisfied of the unreasonableness or impropriety, it may order the next friend to pay the costs of all parties or make such other order as it thinks fit. Here again, the effect of the rule is, that it is incumbent upon the minor to show that the suit was unreasonably or improperly instituted.

(3.) The point has been fully dealt with in the judgment of Eve, J. in Steeden v. Walden (1910) 2 Ch. 393. When a suit by a next friend has been prosecuted to a hearing but proves unsuccessful, and the next friend is directed to pay the costs of the opposite party, has he a right of indemnity against the infant? This is the question that has been dealt with by Eve, J. The learned Judge, after referring to various decisions, thus observes: These and other decisions, whereby property of the infant under the control of the Court has been made available to recoup the next friend, proceed upon the footing that the infant is prima facie liable to indemnify the next friend against costs properly incurred on his behalf, and they shew that such liability ought to, and will, be enforced in all cases where the Court is satisfied that the litigation has been prompted by motives of benevolence towards the infant, and has been conducted in his interest and with diligence and propriety.