Babu Alias Vrajlal Ratansey vs Alibhai Dawoodbhai on 2 July, 1934
2. There seems to be no case directly in point and therefore we have to consider the matter on principle. Where it is desired to file a suit on behalf of a minor it is necessary under the rules to do so by a next friend. The plaintiff must sue in the name of the next friend and there is no doubt whatever that the next friend, although he is not a party to the suit, is the person who is liable for the costs of the defendant. In a proper case he may recover any costs for which he is held liable from the estate of the minor, but, as between the next friend and the defendant, so long as the plaintiff re mains a minor, the next friend is the person to whom the defendant looks for his costs. The cases on the question of a next friend's liability for costs were recently discussed by Rangnekar J. in Babu Vrajlal v. Alibhai (1934) 36 Bom. L.R. 1201, and he came to the conclusion that the ordinary rule is that where a suit is dismissed the next friend must be ordered to pay the successful defendant's costs with a reservation where practicable in the judgment to the effect that he should have liberty to reimburse himself out of the estate of the minor. We are not concerned in this appeal with the form of the order to be made against the next friend, where the plaintiff is still a minor ; what we are concerned here with is the liability of the next friend after the minor has attained his majority. The position arising in that event is dealt with in Order XXXII, Rules 12 to 14, of the Civil Procedure Code. I will first refer to Rule 14, which provides that a minor on attaining majority may apply that a suit instituted in his name by his next friend be dismissed on the ground that it was unreasonable or improper, and if the Court is satisfied as to such unreasonableness or impropriety the Court may grant the application and order the next friend to pay the costs of all parties. That was the rule under which an order was in the first instance asked for in this case. The claim made under that rule, as I have said, was abandoned, and an order was sought under Rule 12 which deals with the case of a minor attaining his majority where the suit has been properly brought. That rule provides that a minor plaintiff shall on attaining majority elect whether he will proceed with the suit or not. Where he elects to proceed with the suit, he has to apply for an order discharging the next friend and for leave to proceed in his own name. Then the title of the record has to be amended so as to show that the late minor has become a major plaintiff. Then it is provided that where he elects to abandon the suit he must apply for an order to dismiss the suit and he has to pay the costs of the suit of the defendant and of the next friend. Now, Mr. Coltman on behalf of the appellants has argued that the rule does not say what is to happen with regard to the existing liability of the next friend. His contention is that the next friend when he files the suit undertakes liability to the defendant to satisfy his costs : a liability which cannot be imposed on the minor because he is a minor; and he points out that there is nothing in the language of Order XXXII, Rule 12, which brings to an end the liability of the next friend to the defendant incurred before the minor attained his majority. Nor have we been referred to any case which covers the exact point. The liability of the next friend for costs is discussed in the 2nd edition of Halsbury's Laws of England, Volume XVII, paragraphs 1455 to 1457 (inclusive), and it is, I think, apparent from that discussion that the provisions of Order XXXII, Rule 12, are taken from the English law. The only case to which we were referred which deals with the position arising when the minor attains his majority is an anonymous case, Anonymous (1819) 4 Mad. 461, decided by Sir John Leach as long ago as 1819 where the learned Vice-Chancellor said (p. 461):