The question which arises in this petition is whether the use of the word “party” in S. 35-A, Civil Procedure Code, prevents the Court from penalising a next friend of the plaintiff.
But for the use of the word “party”, one could not but hold that S. 35-A applied to a next friend as well as to a plaintiff or a defendant, as has been held with regard to S. 35. The question is how far the use of the word “party” may be taken as an indication that the Legislature had or had not the intention of making liable a person other than a plaintiff or a defendant. In Satyanarayana v. Anjareddi (1), the question was whether a next friend could be made liable under S. 95 for the payment of compensation. The learned Judges pointed out that a statute should be strictly construed; but went on to give reasons why they thought that the Legislature intended to confine the application of S. 95 to the plaintiff himself and not to include the next friend also. In the present case, there is no reason to think that the Legislature intended to exempt a next friend from payment of compensatory costs. On the contrary, one would expect that the Legislature would have intended to make a next friend responsible for special costs even more than for ordinary costs; for if the next friend puts forward a deliberately frivolous or vexatious case, one would expect the Legislature to make him as much liable for the payment of special costs as any adult plaintiff guilty of like conduct.
The interpretation of S. 35-A came up for consideration by a Bench of the Allahabad High Court in Rajkumar v. Mangad Rai (2), and the learned Judges said,
“The learned counsel for the appellant has argued that the minor might be made liable to pay the costs, but certainly not the next friend. His argument is based on the language of S. 35-A and is this. In S. 35-A, a “party” has been made liable, while in S. 35 larger powers have been given to the Court, and the Court is authorised to award costs against any person whom it finds liable to pay them. But this argument does not take account of the fact that what is awarded under S. 35-A is ‘costs’ and nothing but costs, although those costs are to be awarded by way of compensation. The extra costs that were awarded under S. 35-A, being ‘costs’, the order to pay it is covered by S. 35 itself. In this view, there can be no doubt that the Court below was justified in making the next friend of the plaintiff pay costs by way of compensation.”
S. 35-A is clearly not intended to be read alone. It is, as it were, an appendix to S. 35 and is intended to deal with some exceptional cases for which the exercise of the ordinary discretion of the Court under S. 35 would not afford a sufficient compensation. Strictly speaking, there can be no party to a suit other than a plaintiff or a defendant; but cases have occurred in which the word ‘party’ has been given the more vulgar interpretation. Maxwell in his “Interpretation of Statutes”, page 50 gives some examples. S. 35-A does not anywhere speak of parties to the suit or proceeding; but speaks of the party objecting to the claim or, in the sentence with which we are chiefly concerned, “the party by whom such claim or defence has been put forward.”
I therefore feel that the Legislature did intend in this case to make the next friend of a minor plaintiff liable for compensatory costs under S. 35-A as well as for ordinary costs under S. 35.
The petition is dismissed with costs.
N.R.R