BABU Vs. ALIBHAI DAWOODBHAI

JUDGEMENT

(1.) In this cage after I delivered my judgment dismissing the plaintiff's suit the learned Counsel on behalf of the defendants asked that the next friend should be ordered to pay the costs of the suit and stated that that was the ordinary rule. Mr. Desai, on the other hand, contended that the suit being for the benefit of the minor and there being nothing to show that it was unnecessary or improper, there was no reason to make the next friend liable for the costs of the suit. He further said that as he had no notice of this application he was not prepared to argue the point fully. As it seemed tome that the question involved was of considerable importance and as Counsel stated there was no direct decision bearing on the point, I allowed the case to stand over to the following Friday so that I should have the benefit of a fuller argument on the question. Accordingly, the question has been argued fully and a number of decisions, mainly of the English Courts, have been cited at the bar, and I may at once say that I am much obliged to the learned Counsel for their arguments. The question that I have to determine is, whether, where a suit is brought by a minor by his next friend and the suit is dismissed, the next friend should ordinarily be directed to pay the costs of the suit, or whether the next friend should be ordered to pay the costs only if the Court holds that the suit was not a proper suit or was unnecessary and not for the benefit of the minor. In this case it is conceded by Mr. Vakil on behalf of the defendants that the suit was for the benefit of the minor and that he is not in a position to say that the suit was unnecessary or was conducted improperly.

(2.) The old practice in England, if the infant was unsuccessful, was either to make the next friend personally liable for the costs, or to dismiss his action with costs generally without specifying who should pay such costs; and where the action was dismissed with costs, generally without anything more, execution for costs always issued against the next friend, and this practice is evident from Turner V/s. Turner (1726) 2 Strange 708 and Slaughter V/s. Talbott (1739) Willes 190. Since 1767, however, the practice seems to have been altered, and the rule rather than the exception seems to be that in such cases the next friend is liable ordinarily to pay the costs of the successful defendant. This is clear from Bukleey V/s. Buckeridge (1767) 1 Dick 395. This was a motion on behalf of the plaintiff, an infant, to restrain the defendant, the executor, from receiving any more of the personal estate of the testator, and the rents and profits of the real estate, and for a Receiver. Lord Camden did not make any order on the motion, but directed the prochein amy to pay the costs of the application. It is said that the order was made because the proceedings were unjustified and were improper. No such ground however is mentioned in the judgment as justifying the order and the order seems to me to have been made as a matter of course.

(3.) Now, according to English Law, an infant cannot in person assert his right in a Court of law as plaintiff or applicant, and cannot make himself liable to a defendant or respondent for costs, with the single exception that he may sue in a County Court for a sum not exceeding -100 due to him for wages, or piecework, or for work as a servant, in the same manner as if he were of full age. We have a similar exception in the Presidency Small Cause Courts Act, and the amount is Rs. 500. Consequently, an infant must institute and carry on all proceedings by his guardian or some other person who is called his prochein amy or next friend, and who is for most purposes dominus litie. (See Halsbury, Vol. 17, para. 312, page 133). At page 135 the learned author says that a next friend is liable to be ordered to pay the costs of the proceedings; but he will not be ordered to give security for costs. Then at page 138, para. 317 are these words: An infant plaintiff is not liable personally for the costs of the proceedings, unless after attaining full age he elects to continue the proceedings or obtain an order for their discontinuance. But the defendant is entitled to recover from the next friend his costs of the proceedings if they are dismissed. The next friend is liable to the solicitor acting on behalf of the infant for the costs incurred by him in the proceeding.