R.S.Narula, J. - (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: I have the honour to certify under Section 7 of the said Act that Major R. C. Sachdev son of Shri Jetha Nand Sachdev, in respect to whom the above mentioned proceedings are pending in your Honourable Court, is serving under special conditions and that a postponement of the proceedings in respect of that soldier is necessary in the interest of Justice. By his order, dated October 11, 1974, the learned Subordinate Judge before whom the suit was pending dismissed the application of the Defendant -Petitioner for stay of the suit on the ground that his case was not covered by Section 6 of the Act as he was represented by a counsel. Section 6 is in the following terms: Notice to be given in case of unrepresented Indian Soldier. - (1) If a Collector has certified under Section 5 or if the Court has reason to believe, that an Indian soldier, who is a party to any proceedings 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 proceedings, 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, atone or conjointly with others with the object of enforcing a right of pre emption, or (b) the interests of the soldier in the proceedings 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. (c) 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.
(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. Immediately after the order under revision was passed, the counsel for the Defendant -Petitioner made a statement that he had no further instructions on which the following order was passed by the learned Subordinate Judges: After the above order was announced, Shri Radha Krishan Nagpal has pleaded that no instructions have been given to him by the Defendant in this case. In these circumstances, the Defendant is proceeded ex parte. To come up for ex parte evidence of the Plaintiff on 30th November, 1974. Mr. Sarin has argued that the above -quoted order is part of the order, dated October 11, 1974, of the trial Court, and the same being contrary to the requirements of Section 7 of the Act as interpreted by the Circuit Bench of this Court at Delhi in Lt. Col Ram Singh Yadav v. Gunwati Devi and Anr. : AIR 1968 P&H. 26, the order refusing to stay the suit under Section 7 of the Act and the direction to proceed ex parte against the Defendant Petitioner may be set aside, and the suit may be stayed under Section 7 of the Act. He also points out that the second order of October 11, 1974, has been specifically impugned in the grounds for revision and that in any case the record of the case being before the High Court, even if no application under section 115 of the Code of Civil Procedure was made, it is open to the Court to set aside the second order, dated October 11, 1974.
(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.;