Chikkanna Chetty and Another vs Dhanakoti Narayana Chettiar and Another

Venkatasubba Rao, J.—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.

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.

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.

But there is a passage in this judgment which has a more direct bearing on the point to be decided:

Nor must it be overlooked that an infant attaining full age pendente lite and abandoning the suit must pay the costs of the next friend, unless he can

establish that the action was improperly instituted.

The law, as enunciated here, is embodied in the rules of the CPC to which I have referred.

In the light of this principle, can the judgment of the Lower Court be upheld? The learned Judge finds the conduct of the next friends to be bona

fide. The suit, he holds, was not premature. He holds further that it was incumbent upon the next friends under the will to reduce the minor''s

property to possession. The only point of doubt was, whether the minor was entitled only to a moiety of the residue or to the whole of it. The next

friends framed the suit upon the footing that the minor was instantly entitled to the entire residue. The learned Judge seems to think that the

construction of the will by the next friends was wrong. I am not here concerned with construing the provisions of the will; nor would it be proper

for me to do so in this action. Mr. T.M. Krishnaswami Aiyar for the appellants contends, that the minor in the first instance takes the entire residue,

subject to his giving up a moiety on a subsequent event happening. The question is not, whether the construction suggested by him is right or wrong

but whether or not the next friends were justified in the minor''s interests in putting it forward. I am clearly satisfied that the next friends'' conduct

was eminently reasonable, and no reason has been shown to deprive them of the costs they have actually incurred. The Judge himself refers to the

fact that the next friends desired to state a case by agreement for the decision of the Court but it was the defendant (executor) that did not agree to

that course.

In the result, I must give effect to the right of indemnity which the next friends have against the minor. They are entitled to the full costs paid by

them, which are set out at p. 20 of the printed papers. I must remark that although the suit was valued at Rs. 42,000 odd, the fee shown as having

been paid to the pleader was only about Rs. 320 - a very moderate sum.

The appeal is allowed with costs, and the memorandum of objections is dismissed but without costs.