(1) This revision application at the instance of the plaintiff challenges the order dated 12-9-1964, passed by Civil Judge, Senior Division Small Cause Court, Wardha, staying proceedings in the suit against the fourth defendant for apparently indefinite period. The applicant has filed Civil Suit No. 3 of 1964 against five persons. Among them is the fourth defendant Shri K. T. Thomas aged about 40 years, who was serving as a clerk in the C. A. D. Camp at Pulgaon but who has transferred to Poona. The first defendant is a Mess Society in the Pulgaon Military Camp and defendants 2 to 5 are members of that Society which is an unregistered body. As members of the Society, defendants 2 to 5 are responsible for its affairs and obligations. Defendants 3 to 5 are Secretaries of the Society and from time to time they purchased grain from the plaintiff under a mutual, open and current account. A balance of Rs. 551.31 P. remained unclaimed and the plaintiff therefore sued all the defendants for an aggregate claim of Rs. 625.31 P. The fourth defendant K. T. Thomas entered appearance through a lawyer and filed an application for postponement of the proceedings as against him on the ground that he was entitled to protection under Indian Soldiers' Litigation Act. He produced a certificate purporting to be issued by the authority of the Government of India Ministry of Defence, under which he claimed that he could be deemed to be in active service. The learned Judge acceded to this request of the fourth defendant and has ordered that the proceedings in the suit be stayed as against the fourth defendant. This order is challenges in this revision application.
(2) It is obvious that before passing the order the learned Judge has not cared to inform himself of all the provisions of the Indian Soldiers Litigation Act.
(3) This is not a case to which section 5 of the Indian Soldiers' Litigation Act applies. Therefore the apposite sections under which action could be taken are sections 6 and 7 of that Act. Sections 6 and 7 are follows:-
' 6. (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 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 the notice if-
(a) the proceedings in a suit, appeal or applications 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 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.
(2) If it appears to the Court before which any proceedings 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.'
'(7) If, on receipt of a notice under section 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.'
(4) Even a bare perusal of these two sections will show that whenever an occasion arises for taking action under these sections, the Court has to be satisfied before suspending proceedings against a party that the soldier is not represented by any person duly authorised to appear, plead or act on his behalf. In the instant case this basic condition was not satisfied inasmuch as defendant No. 4 appeared by his counsel, filed his written statement and joined issues with the plaintiff. It is therefore difficult to hold how the learned Judge could have come to the conclusion that section 6 was at all attracted. Even assuming that section 6 was required to be considered and applied, the after suspending the proceedings in the first instance, the Judge was required to give a notice in the prescribed manner to the prescribed authority. Rules have been framed under the Indian Soldiers' Litigation Act for giving of such a notice under rule 5 in form B. After issuing such a notice the authority to whom this prescribed notice is issued is required to take a decision under section 7 of the Act. That authority on receipt of a notice under section 6 has to certify in a prescribed manner to the Court in which the proceeding is pending that the Soldier in respect of whom the notice is given is serving under special conditions and that postponement is necessary in the interests of justice. It is only on receipt of such a certificate from the prescribed authority that the Court is enjoined to postpone the proceedings in respect of the person for a specified period. If no period is mentioned in the certificate, then the Court has to determine for what period the proceedings should be postponed. In the impugned order in the case it is not clear that the learned Judge was made aware of these provisions at all.
(5) It is not the law that in every case in which one of the parties is a soldier within the meaning of Indian Soldiers' Litigation Act the proceedings have to be necessarily suspended. The Court is not required to suspend and even issue notice if the interests of the soldier in the proceedings are identical with those of the other parties and is represented by such other parties. Now in the instant case, it appears a common defence is raised denying the liability. At any rate, the fourth defendant had actually entered appearance through a counsel and filed a written statement. Moreover, the learned Judge failed to see that it was incumbent on the Court to issue a notice in form B to the prescribed authority. The prescribed authority in its turn has to apply its mind to decide whether it is at all necessary to have the proceedings suspended for any period, and it is only thereafter that the question of suspending the proceedings arises, and if required to be suspended, the period for which it is to be suspended can be determined. It is a strange that the learned Judge has refused to exercise jurisdiction and proceed with the case against defendant no. 4 on merely a finding that respondent no. 4 was a soldier, who could apply under the Indian Soldiers Litigation Act. The order is obviously arrived at without adverting to the provisions of law and cannot be sustained. It is accordingly set aside. The learned Judge will decide the matter if properly raised before him with advertence to the provisions of law and observations made above.
(6) The application for revision is allowed. The applicant will be entitled to his costs from the 4th defendant.
(7) Revision application allowed.