Ramathari Patro, minor by guardian Srimathi Patrani vs Govinda Rona

Varadachariar, J.—This revision petition raises a question of some importance. In a money suit instituted on behalf of a minor plaintiff by his

mother as next friend, an arrest before judgment was obtained on allegations which have been subsequently found by the Court not to have been

justified. The defendant accordingly applied for an award of damages u/s 95(a) of the Civil Procedure Code, and the lower Court has awarded a

sum of Rs. 30 and directed it to be recovered from the family property of the minor.

In revision, Mr. Jagannadha Doss contends that taking the arrest to be improper, it was a tortious act of the next friend and the Court ought not

to have awarded damages against the minor''s estate in respect of such tortious act. The objection is plausible and I am sorry to be obliged to

decide it without the help of an argument on behalf of the respondent, as the respondent is ex parte.

I have however come to the conclusion that the view taken by the Court below is right. In considering the provisions of the Code relating to

costs (Section 35) or to damages for improper arrest or attachment before judgment (Section 95), it does not seem to me right to deal with the

general law relating to the circumstances in which a minor''s estate can be made liable in respect of the acts of a guardian. Take the instance of a

suit instituted by a next friend on behalf of a minor. When such a suit fails, courts have frequently given a decree for costs against the minor''s

estate. I do not think it is possible to bring such a case under any principle of the law of contract or the law of torts or the law relating to alienation

by a guardian. I presume that the justification for such a course is that the language of Section 35 is wide enough to authorise it and it is only in the

special circumstances contemplated by Order 32, Rule 14, Civil Procedure Code, namely, when the Court is satisfied that the institution of the suit

was unreasonable or improper, that the next friend can be made personally liable for costs. In the same way, when Section 95 of the Code is

invoked, I do not think it is legitimate to canvass whether if a suit for damages is brought by a defendant aggrieved by a wrongful arrest or

attachment, he could obtain relief against the minor plaintiff or not. It may in a sense be true that Section 95, provides a summary remedy for relief

which can also be obtained by a suit. But I am not satisfied that the two remedies are coextensive for all purposes and must be decided on the

same considerations. For instance, Sub-clause (b) of Section 95 provides for compensation being payable to a defendant against whom an arrest

or attachment before judgment was obtained if the suit of the plaintiff ultimately fails and it appears to the Court that there was no reasonable or

probable ground for instituting the same. I very much doubt if a claim like this could be made the subject of a separate suit.

I have, therefore, to consider whether there is any necessity or justification for excluding the application of Section 95 to cases in which the

plaintiff happens to be a minor represented by a next friend. I am not satisfied that there is sufficient reason for doing so. It may ordinarily be

presumed that in such a suit, the next friend is taking steps to obtain an arrest or attachment before judgment, only in the supposed interests of the

minor. If ultimately damages should be awarded in respect of such action, it may well be made a matter of accountability by the guardian to the

minor''s estate, instead of denying all redress to the aggrieved defendant on the ground that the application was made not by the minor plaintiff but

by his next friend. The section only says that the award of compensation is to be against the plaintiff and the plaintiff in the action is undoubtedly the

minor and not the guardian. The award of compensation would therefore just like the award of costs be only against the minor, recoverable no

doubt from his estate.

I do not feel that such a view will seriously jeopardise a minor''s interests. After all, it is for the Court to consider whether or not compensation

ought to be awarded and if the Court is satisfied that in making the application the next friend was acting for his own ends and not in the belief that

it was for the interests of the minor''s estate, the Court may either refuse to exercise its discretion and refer the defendant to a suit for damages or if

the analogy of Order 52, Rule 14, could be invoked (even during the plaintiff''s minority) the Court may pass an order against the next friend

himself. I am accordingly of opinion that the balance of convenience is in favour of the view that Section 95 ought not to beheld to be inapplicable

to cases in which the plaintiff happens to be a minor. The revision petition is therefore dismissed.