S.C.Dogra, Major vs Inder Raj

(1) This is an application against an order passed by the City Judge Jammu dated 24111973 in the following circumstances.

(2) The plaintiff respondent brought a suit for ejectment against the defendant who is serving as a Major in the Indian Army. Notices of the suit

were served on the defendant who appeared in court and filed an application that as he was in active service, it was not possible for him to appear

and defend the suit. The court wrote a letter to the Commanding Officer who has confirmed the fact that the defendant was a Major in the Indian

Army and would not be able to appear on the date of hearing. The Commanding Officer, however, suggested that the officer would appear if the

case was adjourned to the 26th October. The learned City Judge on a perusal of this letter dismissed the application of the defendant in limine,

holding that no cause for suspending the proceedings under S. 6 of (The Indian) Soldiers (Litigation) Act, J925 (briefly referred to as the Act

hereinafter) was made out. In support of the rule, Mr. Gupta has submitted that the court below has misdirected itself in not suspending the

proceedings and in acting beyond the scope and ambit of S. 6 of the Act. In order to appreciate the contention of the petitioner it may be

necessary to analyze the provisions of S. 6 itself. Section 6 runs as follows :

(1) If a Collector has certified under S 5, or if the Court has reasons to believe, that an Indian soldier, who is a party to any proceeding pending

before it, is unable and if the soldier is not represented by any person duly authorized 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 preemption 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 thereof in the prescribed manner to the prescribed authority.*'

(3) A perusal of this section would therefore disclose that in order that a court proceeds under S.

6 to give relief to an Indian soldier, the following conditions must be satisfied:

(1) That the defendant must be an Indian Soldier.

(2) That he must be a party to any proceeding pending before the court.

(3) That he is unable to appear in the proceeding and ;

(4) That he is not represented by any person duly authorised to appear, plead or act on his behalf.

(4) If all these conditions are satisfied, the court has got no discretion in the matter but has a statutory duty to suspend proceedings and issue notice

as mentioned in the section (Supra). There is indeed a proviso which mentions two contingencies, which do not apply to the facts of the present

case and therefore need not be considered. The admitted facts of the present case are these : (1) That the petitioner was undoubtedly a soldier in

the Indian Army ; (2) That he was also a patty in the suit which was pending before the court ; (3) That he had filed an application in writing saying

that as he was in active service it was not possible for him to appear in the court, he had also filed a letter of the Commanding Officer in support of

his plea that it was not possible for him to appear and defend the suit and (4) that the lawyer who appeared on behalf of the petitioner told the

court clearly and plainly that he was only instructed to inform the court and that he was not appearing to defend the petitioner. There is absolutely

no dispute with regard to these facts. Mr. Sehgal for the respondent, however, submitted that having regard to the words 'the court has reason to

believe' it must be held that there muse be sufficient and cogent materials before the court regarding the existence of the conditions mentioned in the

section. It is no doubt true that the word 'reason to believe do suggest that the court must be satisfied on sufficient materials regarding the existence

of the conditions mentioned in the section, but the section must be construed liberally and not too literally; otherwise the very object for which the

statute has made this provision would be defeated. This special Act was enacted for the purpose of providing protection to persons serving in the

Indian Army under certain circumstances.

(5) In the instant case the court had before it the application of the petitioner himself which was not controverted by the plaintiff. The application

was supported by the letter of the Commanding Officer. The mere fact that the Commanding Officer said that the petitioner would be available on

a particular date does not show that the petitioner was able to take part in the proceedings throughout. The other conditions mentioned in S. 6

were also fully complied with in this case. It is true that the lawyer who appeared for the petitioner had filed his Vakalatnama but that was the usual

thing for any lawyer to do as a matter of form. The lawyer however, told the court plainly that he was not appearing for the petitioner, but had been

engaged only to inform the court. In these circumstances it cannot be said that the defendant was represented by a person duly authorised to

appear, plead or act on his behalf, but the lawyer of the petitioner had clearly expressed his inability to do so. Having regard to these

circumstances therefore, there was sufficient material for the court to pass an interim order under S. 6 (Supra) is merely an interim provision which

has to be either confirmed or complied with before the notices issued under this section are received back. The question of postponement of the

proceedings would crop up only after the notices issued under this section have been replied. I am not concerned in this case as to the

interpretation of Ss. 8 or 9 of the Act. This case deals only with the interpretation of the provisions of Sec. 6 which is merely a transitory provision

meant to give prima facie protection to a soldier.

(6) For these reasons the learned judge was wrong in law in rejecting the application of the petitioner in limine. The application is therefore,

allowed, the order of the Court below is set aside and the proceedings in 'he suit before the court below are suspended The Court below will now

issue notice under S, 6 and on receipt of the reply proceed with the suit in accordance with the provisions of Ss 7, 8 and 9 of the Act. There will

be no order as to costs.

(7) Parties are directed to appear before the court below on 2531974.