AI Structured Summary
Not yet generated for this judgment
Judgment
Mufti, J.—This revision arises out of a suit for ejectment filed by this respondent (hereinafter called 'the plaintiff') against the petitioner
(hereinafter called 'the defendant') in the court of City Judge, Jammu. The defendant is a Lt. Col in the Indian Army. On 1-10-1973 he filed an
application in the trial court for a direction suspending the proceedings and issuing notice to the Prescribed Authority in terms of Section 6 of the
Indian Soldiers (Litigation) Act, 1925, (hereinafter called 'the Act'), on the allegation that he was serving under special conditions and unable to
defend the suit. The trial court, by its order dated 1-10-1973. rejected the application holding that such plea could not be taken otherwise than by
filing the written statement, In revision, which was heard by Mr. justice D.D. Thakur, as he then was, it was found that the reasoning given by the
trial court was faulty and that the court ought to have decided the plea raised in the application independently of the written statement. Accordingly
the order of the trial court was set aside and the court was directed to re-bear the application and make appropriate orders in accordance with
law. On re-hearing the application, the trial court, by its order dated 24-11-1973, again dismissed the application holding that the defendant had
not produced any certificate or document to show that he was serving under special conditions and further that he was duly represented by a
counsel. Aggrieved by the order, the defendant filed a revision petition in this Court. The revision was heard by the then Chief Justice., Hon'ble
Shri S.M.F. Ali. By his judgment dated 19-3-1974, reported as 1974 KLJ 305, the learned Chief Justice suspended the proceedings in the trial
court and directed issue of notice to the Prescribed Authority u/s 6 of the Act, holding, that, Mr. Vinod Gupta, the lawyer engaged by the
defendant, was engaged simply to inform the court that the defendant was serving under special conditions and unable to defend the case and not
authorised to appear, plead or act on his behalf, when his engagement could stand as a bar u/s 6 of the Act, and that other conditions of the said
section too were satisfied by the defendant. In compliance with this judgment, the trial court issued the requisite notice to the Prescribed Authority.
In response to the notice the prescribed authority vide No. 172512/A1 dated 12-11-74 issued a certificate u/s 7 of the Act in Form 'C' of the
schedule appended to the Rules framed under the Act certifying that the defendant was serving under special conditions and that the postponement
of the proceedings against him was necessary in the interests of justice. Accordingly the trial court postponed the proceedings and meanwhile
sought clarification from the Prescribed Authority as regards the period for which such postponement should be operative. In reply the Prescribed
Authority vide letter No. 172512/A1 dated 24-12-1974 wrote as under:
A lawyer has been engaged to appear on behalf of Lt. Col. S.C. Dogra, The next date of hearing of the case may please be postponed to middle
of February, 1974, so that the lawyer of the officer should be in a position to appear in the court.
On receipt of the reply, the trial court adjourned the case to 14-2-1975 with the direction that the defendant will file his written statement on that
date. The defendant's previous lawyer appeared on the said date but he did not file the written statement and instead contended that the
proceedings in the suit were liable to be stayed under law. The other side did not agree with the contention. The trial court desired the counsel for
the parties to argue the point and adjourned the case to a future date. Against this order the defendant filed a revision petition in this Court which
was heard by the then Chief Justice, Hon'ble Jaswant Singh, The learned Chief Justice dismissed the revision petition observing:
It is no doubt true that a certificate in the prescribed manner was received by the trial court on Nov. 15, 1974, testifying that the petitioner herein
was serving under special conditions and that postponement of the proceedings in relation to him was necessary in the interest of justice but the
subsequent communication received from the commanding officer, a mention of which is found in the order of the court dated January 4, 1975, is
revealing. According to that communication the petitioner had engaged a duly authorised person to represent him and he could no longer be
deemed to be unrepresented as contemplated by Section 6 of the Indian Soldiers (Litigation) Act. According to Rule 7 of the Indian Soldiers'
(Litigation) Rules itself the postponement of the proceedings on the basis of the certificate issued by the Commanding Officer u/s 7 of the Act is to
ensure only upto the receipt of notice in form D from the prescribed authority or until the soldier is represented by some duly authorised person.
The aforesaid subsequent communication leaves no room for doubt that the petitioner can no longer be considered to be unrepresented, In the
circumstances it would be nothing short of helping the attempt to abuse the process of the Court if the proceedings are allowed to remain in a state
of suspension. Moreover the impugned order is very innocuous. By virtue of this order the court merely adjourned the case to enable the learned
Counsel to argue the matter. This could hardly furnish a ground to the petitioner to file the present revision and to have the proceedings in two
cases stayed."" The judgment required the parties to appear in the trial court on January 19, 1976. Before that date the trial court received an
application from the defendant along with a fresh certificate from the prescribed authority praying that the proceedings be stayed. The application
came up for disposal before the trial court on the aforesaid date along with an application for adjournment from the counsel for the defendant who
wanted time to seek further instructions from the defendant. Both these applications were dismissed by the trial court observing:
By virtue of the order of High Court dated 6-1-1976, the parties were directed to put their appearance in this Court on the dismissal of the
revision petition, Mr. V.K. Gupta, Advocate, appearing for the defendant has prayed through a separate application seeking an adjournment on
the ground of having not obtained the instructions from his client. To me, this application does not appear to have a direct bearing on the suit as this
is a communication between the advocate and his client. Meanwhile an application has been received from the defendant in the court by post
making a request for adjournment categorically in terms of Indian Soldiers (Litigation) Act, 1925. But this controversy has already been set at rest
by the High Court in the order under revision. His application is, therefore, of no avail at this time. Let the file come up on 7-2-1976 for filing the
written statements.
Aggrieved by this order the defendant has come up in revision to this Court.
In order to appreciate and determine the controversy in the present case, it is necessary to notice the relevant provisions of the Act and the
Rules made thereunder. These are reproduced below:
Section 6. ""If a Collector has certified u/s 5, or if the court has reason to believe, that an Indian Soldier, who is a party to any proceeding pending
before it, is unable to appear therein, and if the soldier is not represented by any person duly authorised to appear, plead or act on his behalf, the
Court shall suspend the proceeding and shall give notice thereof in the prescribed manner to the prescribed authority:
Provided that the Court may refrain from suspending the proceeding and issuing notice if
(a) the proceeding is a suit, appeal or application instituted or made by the soldier, alone or conjointly with others with the object of enforcing a
right of pre-emption, or
(b) the interests of the soldier in the proceeding are, in the opinion of the Court, either identical with those of any other party to the proceeding and
adequately represented by such other party or merely of a formal nature,
(2) If it appears to the Court before which any proceeding is. pending that an Indian soldier though not a party to the proceeding is materially
concerned in the outcome of the proceeding and that his interests are likely to be prejudiced by his inability to attend, the court may suspend the
proceeding and shall give notice thereon in the prescribed manner to the prescribed authority.
Section 7: ""If, on receipt of a notice u/s 6, the prescribed authority certifies in the prescribed manner to the Court in which the proceeding is
pending that the soldier in respect of whom the notice was given is serving under special conditions, and that a postponement of the proceeding in
respect of the soldier is necessary, in the interests of justice, the Court shall thereupon postpone the proceeding in respect of the soldier for the
prescribed period, or, if no period has been prescribed, for such period as it thinks fit.
Rule 7: ""On receipt of a certificate from the prescribed authority u/s 7 of the Act that a postponement of the proceedings is necessary in the
interests of justice, the Court shall postpone the proceedings until the receipt of a certificate in Form D from the prescribed authority, or until the
soldier is represented in the proceeding by some person duly authorised to appear, plead or act in his behalf.
Form 'D' ""Certificate under Rule 6 of the Indian Soldiers (Litigation) Rules, 1938.
From
..................
..................
To
..................
..................
In re........No............of 19
..................
v.
..................
No. Dated:
Sir,
I have the honour to invite a reference to my letter No....dated....and to certify under Rule 6 of the Indian Soldiers (Litigation) Rules, 1938, that
circumstances no longer exist for the postponement of the above mentioned (enter suit, appeal, application or other proceeding), now pending in
(enter name of court), wherein....son of.....an Indian soldier, is party.
Yours faithfully.
Officer Commanding.
A combined effect of these provisions is that if a soldier litigant satisfies the conditions of Section 6, the court is required to suspend the
proceedings and give notice thereof to the Prescribed Authority. Where the prescribed Authority certifies that the soldier litigant is serving under
special conditions and that the postponement of the proceedings in respect of such soldier litigant is necessary, in the interests of justice the court is
required to postpone the proceedings until the certificate is revoked in form D by the Prescribed Authority or until the soldier is represented in the
proceedings by some person duly authorised to appear, plead or act on his behalf. It may be noted that the expression 'proceeding' has a particular
meaning given to it in Section 2(d) of Act as including suit, appeal and an application.
In the view expressed above it was not necessary for the trial court to seek any clarification from the Prescribed Authority as regards the period
for which the postponement should be operative in consequence of the certificate issued by such authority u/s 7. Perhaps, for the reasons that
arguing with the court directly may not be proper and desirable, the Prescribed Authority thought it fit to let the defendant explain the true legal
position through a lawyer and informed the court accordingly vide its letter No. 172512/A1 dated 24-12-1974, However that may be, the fact
remains that pursuant to this letter no one appeared for the defendant to represent him in the main suit at the adjourned hearing on 14-2-1975. Mr.
Vinod Gupta Advocate, appeared, as before, simply to reiterate his earlier stand that the suit was liable to be stayed. He too did not file any fresh
vakalatnarna apart from the one previously filed by him which was construed by the learned Chief Justice Hon'ble S.M.F. Ali to be of limited
import authorising the counsel to press the defendant's claim for stay of the suit on the ground that he was serving under special conditions and
unable to defend the suit. All these circumstances do not seem to have been brought to his notice when, in his order dated January 6, 1976, the
learned Chief Justice, Hon'ble Jaswant Singh, made the following observations:
The aforesaid subsequent communication leaves no room for doubt that the petitioner can no longer be considered to be unrepresented. In the
circumstances it would be nothing short of helping the attempt to abuse the process of the Court if the proceedings are allowed to remain in a state
of suspension.
However, his decision ultimately turned on the short point that the order dated 14-2-75 was innocuous as it merely adjourned the case to enable
the learned Counsel to argue the matter, Thus his order did not really clinch the issue regarding stay of the suit, as the trial court seems to think. The
court ought to have considered the matter on its merits and passed suitable orders in it. However, that should not stand in our way to do the
needful ourselves because the matter does not involve any question of fact which make it necessary to refer the case back to the trial court.
Turning then to the merits, it will be clear that the certificate dated 14-11-1974 issued by the Prescribed Authority u/s 7 of the Act is still operative
and must be given effect to because, in the first place, the Prescribed Authority has not issued any revocation letter in Form 'D' and, secondly,
because the defendant is not duly represented by any person to appear, plead or act in the suit proper as distinguished from the application for
stay. On principle of law stated above proceedings in the suit are liable to be postponed until the certificate is revoked in form 'D' by the
Prescribed Authority or until the defendant is represented in the suit proper by some person duly authorised to appear, plead or act on his behalf.
More so because a similar certificate has been furnished by the defendant again along with his application dated 15-1-1976. In that view, the
revision petition must succeed and the proceedings in the ejectment suit before the trial court must be stayed.
In the result this revision petition is allowed; the impugned order is set aside; and, the proceedings in the suit before the trial court are stayed until
the receipt of the certificate in form D from the Prescribed Authority or until the defendant is represented in the suit by some person duly authorised
to appear, plead or act on his behalf. There shall be no order as to costs.
This order shall also govern the disposal of revision petition No. 120 of 1976 which has arisen in identical circumstances in the suit for arrears of
rent filed by the plaintiff against the defendant in the court of City Judge, Jammu, The said petition too is allowed on the terms indicated above.