The word 'plaintiff' in Section 95 of the Code of Civil Procedure must be confined to the plaintiff and does not include the next friend of a minor plaintiff.

Alfred Henry Lionel Leach, C.J.

1. In this petition the Court is called upon to decide whether the word plaintiff in Section 95 of the Code of Civil Procedure must be deemed to include the next friend of a minor plaintiff.

2. Section 95 provides that where in a suit in which an arrest or attachment has been effected or a temporary injunction granted under Section 94, it appears to the Court that the application was made on insufficient grounds, or the suit fails and it appears that there was no reasonable or probable ground for its institution, the defendant may apply to the Court, and the Court may award against the plaintiff reasonable compensation; not exceeding Rs. 1,000, for the expense or injury caused to him. An order determining an application of this nature bars a suit for compensation.

3. In the present case the petitioner, as the next friend of a minor, filed in the Court of the Subordinate Judge of Masulipatam a suit against the respondent and at the same time filed an application for the attachment before judgment of property belonging to the respondent. The claim was on a promissory-note. The application for attachment before judgment was granted, but in the course of the suit it became apparent that the application ought not to have been made and the respondent applied for an order against the petitioner and the minor plaintiff under Section 95. The Subordinate Judge hold that the minor plaintiff was not responsible for the filing of the application for attachment before judgment. Clearly he was not. The responsibility rested entirely with the petitioner. Accordingly the Subordinate Judge passed an order against the petitioner directing him to pay to the respondent a sum of Rs. 200 by way of compensation.

4. Section 95 only speaks of the award of compensation against the plaintiff. The Court must be very careful in interpreting the expression not to extend the meaning unduly. To do so might lead to difficulty in respect of other provisions of the Code. Order 32, Rule 14 permits a minor plaintiff on attaining majority to apply to the Court for the dismissal of a suit instituted in his name by his next friend on the ground that it was unreasonable or improper, and the Court may grant the application and order the next friend to pay the costs of all parties. There is here strong indication that in using the word plaintiff in Section 95 the Legislature intended to confine the application under that section to an application against the plaintiff himself, because when providing for an order against the next friend in Order 32, Rule 14 it makes express provision to this effect. In Ramathari Patro v. Govinda Rona (1935)69MLJ487 , Varadachariar, J., observed:

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.

5. Although the question now before us did not fall for decision in that case the learned Judge was obviously disinclined to read the word plaintiff in Section 95 as including the next friend, and we consider that he was right.

6. In Elumalai Naicher v. Kuppammal (1929) 58 M.L.J. 623 : I.L.R. 1925 Mad. 716 a Bench of this Court held that the Court had power to direct the next friend of a minor who had sued in forma pauperis to pay the court-fee to Government. This decision was based on the opinion that Section 35 of the Code of Civil Procedure, which refers to costs, was wide enough to cover a direction to the next friend to pay the court-fee. Section 35 is couched in, very wide terms. It gives the Court full power to determine by whom or out of what property and to what extent costs are to be paid, but Section 95 is limited in its wording.

7. Two English cases have been referred to in the course of the argument--Jones v. Lewis (1847) 1 DE. G. & S.M. 245 : 63 E.R. 1052 and Catt v. Wood (1908) 2 K.B. 458. In the former of these cases it was held by Knight Bruce, Vice Chancellor, that the petition of an