Report No. 240

12. Order XXV (Security for Costs)

12.1 Sub-rule (1) and (2) to the extent relevant are extracted hereunder:

1. When security for costs may be required from plaintiff .- (1) At any stage of a suit, the Court may, either of its own motion or on the application of any defendant, order the plaintiff, for reasons to be recorded, to give within the time fixed by it security for the payment of all costs incurred and likely to be incurred by any defendant:

Provided that such an order shall be made in all cases in which it appears to the Court that a sole plaintiff is, or (when there are more plaintiffs than one) that all the plaintiffs are, residing out of India and that such plaintiff does not possess or that no one of such plaintiffs possesses any sufficient immovable property within India other than the property in suit.

(2)..............

12.2 The effect of failure to furnish security is laid down in Rule 2: The scope and ambit of the Provision has been widened in the year 1956 by substituting new Rule 1 for the old rule. The proviso to the present rule was the previous rule. Some States have amended this provision to cover cases in which the plaintiff is being financed by a non-party to the suit. It is not clear why only the plaintiff is required to furnish security for costs. The rationale behind the exclusion of defendant is not demonstrable. Probably it was based on the then existing situation.

The distinction between plaintiff and defendant is irrational at the present juncture. Having regard to the present pattern of litigation, there is no reason why the security for costs should not be required to be furnished by either the plaintiff or the defendant if the circumstances exist for requiring such security. Hence, suitable amendment of Order XXV to include the defendant within the net of that Order XXV is desirable. So also, the Proviso should be suitably amended to include the defendant therein.

12.3 The allied rule relating to furnishing of security is Order XLI, rule (10).