MAJOR RAMESH CHAND Vs. JETHA NAND SACHDEV

JUDGEMENT

(1.) SERVICE of the summons of the suit filed by Jetha Nand Sachdev Respondent against his son Major Ramesh Chand Petitioner was effected on the Defendant -Petitioner. He being in army service, an application was moved on his behalf under the Indian Soldiers (Litigation) Act (4 of 1925) (hereinafter called the Act) for staying the suit. Before the disposal of the application the certificate of the Officer Commanding of the Unit of the Defendant -Petitioner in the prescribed form ' C ' under Rule 3 of the Indian Soldiers (Litigation) Rules 1938, had been received by the trial Court. The Certificate reads as follows:

(2.) THERE is no doubt that a suit can be stayed under section (1) of the Act only if the soldier is not represented by any person duly authorised to appear, plead or act on his behalf. Inasmuch as the Petitioner was duly represented by a counsel who is stated to have filed Vakalatnama executed by the Petitioner authorising the counsel to appear, plead or act on his behalf no fault can be found with the first part of the order of the trial Court, dated October 11, 1974. In spite of some vagueness in the application, as the learned Subordinate Judge correctly held that the contents of the application showed that the Defendant Petitioner was serving in the army. The fact that a certificate from the Commanding Officer of the Unit of the Defendant -Petitioner had also been produced before the trial Court (which is on record) was also noticed in the order.

(3.) AT this stage Mr. C. B. Goyal who appears for the Plaintiff -Respondent submits that the suit may not be stayed by the High Court, but the second order, dated October 11, 1974, directing the ex parte proceedings against the Defendant Petitioner may be set aside, and the trial Court directed to proceed under the Act in respect of the Defendant Petitioner as he is no more represented before the trial Court.