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Lt. Col. Ram Singh Yadav Vs. Smt. Gunwati Devi and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtPunjab and Haryana High Court
Decided On
Case NumberC.R. 491-D 1965
Judge
Reported inAIR1968P& H26
ActsSoldiers (Litigation) Act, 1925 - Sections 3, 5, 6 and 7
AppellantLt. Col. Ram Singh Yadav
RespondentSmt. Gunwati Devi and anr.
Appellant Advocate H.S. Dhir, Adv.
Respondent Advocate Avadh Behari and; V.D. Misra, Advs.
DispositionPetition allowed
Excerpt:
.....jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - ram singh yadav may be told clearly that if he will not appear in person or through some authorised agent or counsel, then, ex parte proceedings will be taken against him and the case will be disposed of according to law'.3. again, by letter no. sometimes the absence of judicial review in subjective field may cause even seriousjeopardy to the rights of the subjects, but such like statutes have to be construed having regard to the circumstances in which they are intended to operate......under the mandatory provisions of the act and the rules of this court. according to the learned counsel, the entire proceedings suffer from disregard of the provisions of the act, inasmuch as no notice was issued to the prescribed authority, as required by section 6 thereof.9. mr. avadh behari lal, learned counsel for smt. gunwati devi, respondent no. 1, made a strenuous effort to make out a case that there were no special conditions as certified in the letters issued by the commander. he drew my attention to clauses (a), (b) and (c) of section 3 of the act to show that there were no war conditions and/or special conditions obtaining in the country, which could attract these provisions. he also emphasised the fact that section 6 was not attracted inasmuch as the soldier was.....
Judgment:
ORDER

S.K. Kapur, J.

1. Present Civil Revision arises in connection with a suit filed by Smt. Gunwanti Devi, respondent No. 1, against Lt. Col. Ram Singh Yadav, petitioner, (or divorce under Section 13 of the Hindu Marriage Act, 1955, (No. 25 of 1955).

2. The suit was filed on the 8th March 1965, and it appears that notice in normal course was issued to the petitioner. Though it is common ground between learned counsel for the parties that no notice in the prescribed manner was given to the prescribed authority by the Additional District Judge, as required by Section 6 of the Indian Soldiers (Litigation) Act, 1925 (Act No. IV of 1925) (hereafter referred to as the Act), but still there is on record a certificate dated the 18th May, 1965, under Section 7 of the Act, reciting -

'I have the honour to acknowledge receipt of your notice, dated 10th May, 1965, under Section 6 of the Indian Soldiers (litigation) Act, 1925 (IV of 1925), in the above mentioned proceedings, and to certify under Section 7 of the said Act that Lt. Col. Ram Singh Yadav son of Capt. Hari Singh, in respect of whom theabove-mentioned notice has been given, is serving under special conditions and that a postponement of the proceeding in respect of that soldier is necessary in the interest of justice'.

This certificate appears to have been received by the Court some time before the 10th June, 1965. On receipt of the same, the Court passed an order dated the 10th Tune, 1965, which, inter alia, says -

'The respondent must appear in person and then represent his case for stay. If he will be able to make out a case for the stay, then his request made in this behalf will be considered by this Court. Through the above said letter Lt. Col. Ram Singh Yadav may be told clearly that if he will not appear in person or through some authorised agent or counsel, then, ex parte proceedings will be taken against him and the case will be disposed of according to law'.

3. Again, by letter No. 51702-A, dated the 25th August, 1965, the Commander of 50 Independent Parachute Brigade, wrote to the Additional District Judge, Delhi, pointing out that Lt. Col. Ram Singh Yadav 'is serving under special conditions and that postponement of the proceedings in respect of that soldier is necessary till 16th September, 1965, in the interests of justice'. There is yet another letter No. 51702-A, dated the 22nd September, 1965, from the Commander to the Additional District Judge, Delhi, again certifying that petitioner 'is serving under special conditions and that postponement of the proceedings in respect of that soldier is necessary in the interests of justice'.

4. On the 3rd September, 1965, an application was made on behalf of the petitioner alleging that he was serving in 2 Para. Battalion in field area under war conditions, and was therefore, unable to send any instructions for the prosecution of the case. On the said application, learned Additional District Judge passed an order dated the 3rd September, 1965, wherein he, inter alia, observed: 'It is correct that under the aforesaid Act an Army Officer must be given protection in a liberal manner, but before affording him benefit under the Act, it must be known to the Court the place of his posting and the nature of the duties which he is performing at present'. Learned Additional District Judge also directed the petitioner's counsel to file his reply to the application of Smt. Gunwati Devi, presented Under Section 24 of the Hindu Marriage Act. At this the counsel pointed out that Lt. Col. Ram Singh Yadav had not given him any instructions, and, therefore, he wanted to retire The case was then adjourned to the 4th September, 1965. On the 16th September, 1965, Mr. H. S. Dhir, counsel for the petitioner, appeared and informed the Court that he had no instructions from his client. The Court ordered ex parte proceedings against the petitioner (respondent in the suit) and adjourned the case to the 6th October, 1965, for evidence of Smt. Gunwanti Devi, respondent, in support of her application under Section 24 of the Hindu Marriage Act.

5. It would be convenient to refer to the scheme of the Act. Section 3 provides when an Indian Soldier shall be deemed to be or to have been serving under special conditions or warconditions. The next relevant provision is subsection (1) of Section 6, which reads: '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 proceedings and shall give notice thereof in the prescribed manner to the prescribed authority'. Proviso to the said section lays down two exceptions, where the proceedings need not be suspended, but none of the two exceptions has a bearing on this case. Section 7 enjoins the Court to postpone proceedings in respect of a soldier for the prescribed period, or, if no period has been prescribed, for such period as it thinks fit, in case a certificate is received from the prescribed authority certifying in the prescribed manner to the Court that the soldier, in respect or whom the notice was given, is serving under special conditions.

6. Reference may also be made to Rules and Orders of the Punjab High Court, Vol. I, Chapter 6-B, Rules 5 and 7 therein are in the following terms :--

'5. The notice given by the Court under Section 6 of the Act shall be in Form B of the schedule and shall be sent to the prescribed authority care of the General Officer Commanding-in-Chief of the Command in which the Court is situated, and the certificate of the prescribed authority, under Section 7 of the Act, shall be in Form C of the Schedule.

7. On receipt of a certificate from the prescribed authority under Section 7 of the Act, that a postponement of the proceedings is necessary in the interests of justice, the Court shall postpone the proceedings until the receipt of a certificate in Form D from the prescribed authority or until the soldier is represented in the proceedings by some person duly authorised to appear, plead or act on his behalf'

7. One more fact deserving mention is the fact of the petitioner filing his written statement on the 16th August, 1965, and later applying for amendment of certain issue.

8. It is submitted on behalf of the petitioner that having regard to the above circumstances, learned Additional District Judge was obliged to stay the proceedings under the mandatory provisions of the Act and the rules of this Court. According to the learned counsel, the entire proceedings suffer from disregard of the provisions of the Act, inasmuch as no notice was issued to the prescribed authority, as required by Section 6 thereof.

9. Mr. Avadh Behari Lal, learned counsel for Smt. Gunwati Devi, respondent No. 1, made a strenuous effort to make out a case that there were no special conditions as certified in the letters issued by the Commander. He drew my attention to Clauses (a), (b) and (c) of Section 3 of the Act to show that there were no war conditions and/or special conditions obtaining in the country, which could attract these provisions. He also emphasised the fact that Section 6 was not attracted inasmuch as the soldier was represented by a pleader in the trial Court. So far as the representation of the petitioner in the trial Court is concerned, it appears that the entire difficulty arose in view of the order of learned Additional District Judge dated the 10th June, 1965. In passing that order, the learned District Judge did not, in my opinion, observe the provisions of Section 6 of the Act. The correct procedure to be followed should have been that if from the letter dated the 18th May, 1965, it appeared to the Court that the soldier was unable to appear in the proceedings, it ought to have suspended the proceedings and given notice thereof in the prescribed manner to the prescribed authority. Instead, the learned Additional District Judge called upon the soldier to present his said application either personally or through a counsel. In view of this order of 10th June, 1965, I think, the soldier had no option but to present the application through a counsel. It is significant, however, to notice that from both the impugned orders, namely, order dated the 3rd September, 1965, and the 16th September, 1965, it appears that his counsel did insist that apart from moving the application for stay, they were unable to represent the soldier in the case, because he was not in a position to give instructions. The filing of the written statement also must have been a consequence of the order dated the 10th June, 1965, saying that, in case the soldier did not appear, ex parte proceedings would be taken against him. Be that as it may, the fact remains that the provisions of the said Act have been disregarded inasmuch as on the date of receipt of the certificate dated the 18th May, 1965, the soldier was not represented in Court, and the certificate should have led the Court to believe that the soldier was unable to appear as contemplated by Section 6. That being so, the only course open to the Court was to suspend the proceedings and give notice to the prescribed authority under Section 6. The trial Court never even gave a finding that it had no reason to believe that the soldier could not appear.

10. There remains now to consider the argument of Mr. Avadh Behari Lal regarding existence of special and/or war conditions in the country. I am of the view that this is not a justiciable matter. Once a certificate is issued by the prescribed authority, as contemplated by Section 7, the Court has no option but to stay the proceedings. May be, if mala fides or ulterior motive is alleged on the part of the prescribed authority, the Court can go into it. But that is not the case here. I cannot help thinking that the learned Additional District Judge was not even justified in requiring the soldier's counsel to provide him with information about the place of his posting. That seems to be a reason why a certificate under Section 7 of the Act has been made conclusive. If Courts were to enquire into places of postings of soldiers or of existence or non-existence of special and/or war conditions, there is likelihood of serious threat to the defence of the country. Sometimes the absence of judicial review in subjective field may cause even seriousjeopardy to the rights of the subjects, but such like statutes have to be construed having regard to the circumstances in which they are intended to operate.

11. Mr. Avadh Behari Lal then points out that the petitioner had himself filed proceedings in Gurgaon Court against his wife for divorce on different grounds and his only object in securing stay of these proceedings is to have the Gurgaon case disposed of before the matter is decided here. I am not inclined to agree with the learned counsel that that fact in any case justifies upholding of the orders now impugned before me. If the law affords a remedy to the respondent, it may be open to her to ask for stay of those proceedings, but that would provide no justification for non-observance of the provisions of the Act, which alone I am called upon to consider in this case.

12. In the result, the revision petition must be allowed, and the orders dated the 3rd September, 1965, and the 16th September, 1965, set aside. I order accordingly. The learned Additional District Judge will take further proceedings in accordance with law. Parries will, however, bear their own costs.


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