S C DOGRA (LT COL ) Vs. INDER RAJ

JUDGEMENT

(1.) THIS revision arises out of a suit for ejectment filed by the 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 -73 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 rehear the application and make appropriate orders in accordance with law. On re -hearing the application, the trial court, by its order dated 24 -11 -73, 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, Honble 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 under section 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 under section 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 -1974 issued a certificate under section 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, hi reply the Prescribed Authority vide letter No. 172512/AI dated 24 -12 -74 wrote as under: "A lawyer has been engaged to appear on behalf of Lt. Col. SC 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".

(2.) 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 defendants previous lawyer appeared on the said date but he did not file the written statements 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, Honble 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 hereinwas 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 under section 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."

(3.) 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 alongwith 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 alongwith 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 Act, 1925. But this controversy has already been set at rest by 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 statement." Aggrieved by this order the defendant has come up in revision to this Court.