P.B. Mukharji, J.
1. This rule was obtained by the defendant petitioner Krishna Chandra Banerjee tinder Section 115 of the Code of Civil Procedure and under Article 227 of the Constitution of India. It was directed against an order of the learned Judge of the City Civil Court dismissing the defendant's application for stay of the suit under Section 6(2) of the Indian Soldiers (Litigation) Act, 1925. The important point of law raised on this Rule is the interpretation and scope of the Indian Soldiers (Litigation) Act.
2. The controversy arose out of an ejectment suit filed in 1961 by the plaintiff-oppositeparty against the defendant-petitioner for his ejectment from premises No. 109 Sitaram Ghosh Street, Calcutta. These were the only two parties to the suit, namely, the plaintiff-opposite party and the defendant-petitioner before us. The rent payable was only Rs. 65 per month. A notice of ejectment was given on the 19th June 1961. The grounds of ejectment were requirement of the plaintiff for her own use and occupation and for use and occupation of the members of her own family consisting, inter alia of herself, husband, a son aged about 5, a daughter aged about 9. years and husband's six brothers of whom two were married. It was alleged in the plaint that there was acute shortage of accommodation for the plaintiffs family. The other ground for ejectment was that the defendant was a defaulter in payment of rent since April 1961. It was this suit that the defendant wanted to stay
3. The grounds of stay put forward by the defendant-petitioner may be briefly summarised. Though the defendant is a tenant, yet in fact M/s. Banerjee Bros., a partnership firm of which the defendant was a partner was carrying on business in the premises in suit and that partnership business was said to be the real beneficial owner of the tenancy right. Next it was alleged that Capt. R. P. Banerjee. A. M. O. 89 Field Ambulance C/o 56 A. P. O. is one of the two brothers of the defendant and that brother who is not a party to the suit submitted a petition through the O. C. 89 FD AMO stating inter alia that he was in active military service in the Held and his family consisting of his wife and two children were residing in the suit premises which was the joint residence of their family for more than 25 years and that his whole family would be totally stranded and thrown on the street if they were evicted from the premises in suit. The brother defendant-petitioner says that this Capt. Banerjee had taken these steps independently of him and without referring to him.
4. What appears from the record is this that the Collector of Calcutta caused an inquiry to be made in this matter presumably at the instance of this Capt. R. P. Banerjee and the Collector issued a certificate under Section 5 of the Indian Soldiers (Litigation) Act 1925 (4 of 1925) to the effect that Capt. R.P. Banerji whose family interest was involved in the above litigation, was unable to appear therein.
5. Upon this allegation the trial court on the 21st June 1963 passed an order and framed an additional issue whether the suit should be stayed under Section 6(2) of that Act Against that, the defendant-petitioner moved this Court and obtained a Rule which was made absolute and this court gave a direction upon the trial Court to take up the question whether the suit should be stayed in view of the provision of Section 6(2) of the Indian Soldiers (Litigation) Act, 1925.
6. Certain facts which are found and concluded must here be stated. This Capt Banerji is not a partner of that firm of M/s. Banerji Brothers. This Capt. is not even a party to the above suit. This Capt, Banerji is not also a tenant in law of the plaintiff opposite party.
7. There are also certain disputed questions of fact. The plaintiff's case is that Capt. Banerji does not live there; nor do his wife and children who, it is alleged, reside at 236, Barrackpore Trunk Road and not in the premises in suit. It is also alleged by the plaintiff that the defendant and his brother are all separate and they live at different places separately and they do not constitute a joint family. The defendant however claims that Capt. Banerji's wife and children are living in the premises in suit. We shall leave aside this disputed question of fact on which there are affidavits and counter-affidavits and proceed on the assumption that Capt. Banerji's wife and children are living in the premises in suit without deciding that question.
8. It is the petitioner's own evidence that he alone took the tenancy on behalf of himself and his four brothers, but the tenancy stood only in his name. It is found as a fact that the interest of the soldier brother Capt. Banerji is identical with that of the defendant K.C. Banerji. It is also found as a fact that even if Capt. Banerji were able to attend Court he would not be able to do anything more than what defendant K.C. Banerji could actually do for him. On these findings the learned Judge dismissed the defendant's application for stay of the suit under Section 6(2) of the Indian Soldiers (Litigation) Act.
9. This Rule, in our opinion, must fail both on facts and in law. The Indian Soldiers (Litigation) Act, 1925 according to its Preamble, is an Act 'to consolidate and amend the law to provide for the special protection in respect of civil and revenue litigation of Indian soldiers serving under special conditions.' Now, Section 3(a) of the Act defines 'Special Condition' and provides that an Indian soldier shall be deemed to be or, as the case may be, to have been serving, under 'special conditions' when 'he is or has been sewing under war conditions, or overseas or at any place beyond India.' No question of this Capt. Banerji serving overseas or at any place beyond India arose in this case. The question is whether he is or has been serving under 'war conditions' and if so, at what point of time. The application for stay was heard finally after the remand on the 7th September 1964 and that is the material date on which to find whether there was any 'war condition' in which Capt. Banerji was supposed to be serving. There is a definition of 'war conditions' in Section 3(b) of the Act which lays down the conditions which can be described as war conditions'. They are 'continuance of any hostilities declared by the Central Government by Notification in the Official Gazette to constitute a State of War for purposes of this Act or at any time during a period of six months thereafter (i) serving out of India (ii) Under orders to proceed on field service, (iii) serving with any unit which is for the time being mobilised or (iv) serving under conditions which in the opinion of the prescribed authority preclude him from obtaining leave of absence to enable him to attend a Court as a party to any proceeding, or when he is or has been at any other time serving under conditions of service which have been declared by the Central Government by Notification in the Official Gazette to be service under War Conditions: and
(c) Overseas--when he is or has been serving in any place outside India (other than Ceylon) the journey between which and India is ordinarily undertaken wholly or in part by Sea.
'Explanation--For purposes of this Section and with effect from the 3rd day of September 1939, a Soldier who is or has been a prisoner shall be deemed to be or have been serving under War Conditions.'
10. None of these conditions has been shown to be applicable in this case at the time when the court made the order refusing to stay.
11. In a long, verbose and prolix written statement covering 19 paragraphs not a word was suggested by the defendant-petitioner about this, his brother soldier's service. Section 4 of the Act makes it a requirement that if any person presenting any plaint, application or appeal to any Court has reason to believe that any adverse party is an Indian soldier who is serving under special conditions, he shall state the fact in his plaint, application or appeal. No doubt this provision is only applicable where the 'adverse partly' is an Indian Soldier. Section 5 of the Act provides that if any Collector has reason to believe that any Indian soldier, who ordinarily resides or has property in his district and who is a party to any proceeding pending before any Court, is unable to appear therein, the Collector may certify the facts in the prescribed manner to the Court. The Collector's Jurisdiction in this respect under Section 5 of the Act is only limited to the case when the Indian soldier is 'a party to any proceeding' pending in a court, otherwise not. Capt. Banerji in the facts as stated before, is not a 'a party to the proceeding' or the suit pending in the trial court. Therefore, the Collector's intervention in this case was wholly outside the jurisdiction and was not only irregular but also illegal.
12. Proceeding with the analysis of the next Section 6(1) of the Indian Soldiers (Litigation) Act, 1925, it is plain on a construction of the language used therein that 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. Now this Sub-section (1) of Section 6 of the Indian Soldiers (Litigation) Act is again limited to the case where a 'party' to the proceeding is an Indian Soldier and in that event the Court shall suspend the proceeding as provided therein and shall give notice in the prescribed manner. This mandatory obligation upon the Court to suspend proceeding is however qualified by a proviso to this Sub-section (1) of Section 6 of the Act which empowers the Court not to suspend the proceeding and issue notice, inter alia in Clause (b) 'if the interests of the soldier in the proceeding 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'. This is the power and jurisdiction of the Court even in the case where the soldier is 'a party' to the proceeding. This proviso (b) to Section 6(1) of the Act is inter alia limited to the case where the soldier is a 'party' to the suit or the proceeding. That, however, is not the case here. Therefore even this proviso cannot help the petitioner. But even then the Courts have found in this case that the interests of the Soldier in these present proceedings are identical with those of his Civilian brother defendant and adequately represented by him. On that finding of fact, even if the soldier were a party to the present proceedings, which he is not in the instant case, the Court would have been justified in refusing to stay the suit under Section 6(1) proviso (b) of the Act.
13. What is relevant for the purpose of this application is the provision of Section 6(2) of the Indian Soldiers (Litigation) Act because that applies to the present case where the Soldier is not a party to the proceeding. It reads as follows:
'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'.
14. A glance at this stage to Sub-section (2) will at once show its ambit. This power is appertaining to the Court. Be it stated that the Collector has nothing to do with this power of the Court, nor can he interfere. Only in case it appears to the Court that an Indian Soldier, even though not a party, is materially concerned and his interests are likely to be prejudiced by his inability to attend, the Court may suspend the proceeding. The crucial words are 'materially concerned' and 'his interests are likely to be prejudiced by his inability to attend'. The Court has found as a fact and with which we find no reason to disagree in any way, that even though Capt. Banerji's interests may be materially concerned in the outcome of this ejectment proceeding, yet his interests are not at all likely to be prejudiced by his inability to attend. That being so, there is an end of this application of the petitioner for stay of the suit under Section 6(2) of the Indian Soldiers Litigation Act.
15. What is it that the suit should be stayed for? Capt. Banerji is not a party to the suit. He, therefore, cannot file a written statement, plead and appear in Court as a party. Nor has he applied to be joined as a party to the suit to protect his interests; nor is there any question that the defendant civilian brother is not able to protect his interests. In fact, Capt. Banerji cannot in law be a party to the suit for the simple reason that the tenancy is not his but of the defendant-petitioner and the law shall look to the defendant-petitioner for responsibility and not to his soldier brother. Neither Capt. Banerji nor the defendant Banerji says that defendant Banerji is not in a position to look after the family matters of Capt. Banerji as he himself would have done. In fact, it is the finding of fact by the trial court that the Civilian brother is ably looking after the interests of his martial brother. Indeed, that is also an admission. What then remains of the purpose of this application to stay the suit? There is no purpose left why the suit should bo stayed on those facts.
16. At best Capt. Banerji can come as a witness for defendant Banerji or even as a Court witness. Surely that time can be arranged to suit the convenience of Capt. Banerji in public or State interest and I am sure no court will disoblige either defendant Banerji or Capt. Banerji, should an appropriate case be made for the same and fix a date convenient to them. If he can attend as a witness on a date suitable to him then there is no question of Capt. Banerji's interests being 'prejudiced' within the meaning of that expression under Section 6(2) of the Act. There can even be his examination on commission in au appropriate case.
17. The work of the Court is as much a matter of public interest as the convenience of soldiers in war conditions. There should be harmony of public interest when there is any question of conflict of two public interests. Here in this case surely determination of the citizens' right to claim property on the ground of his own requirement can be harmonised with the public duties of Capt. Banerji in the Army. That is the reason why the statute was made and that is the reason why provisions like Section 6 of the Act were entered on the statute book. It would be unfortunate if the Indian Soldiers (Litigation) Act is abused to defeat the process of justice or the course of law or the procedure of courts, when facts do not justify the application of this very laudable object of a beneficent Act.
18. The calendar of this suit provides a strange commentary on the use made in the instant case of the Indian Soldiers (Litigation) Act 1025. The suit for ejectment on the ground of bona fide requirement was instituted on the 17th August 1961. Written statement was filed on the 28th February 1962. Not a word was there about Soldier's interest or Indian Soldiers (Litigation) Act. Documents were filed on the 7th March 1962. The documents speak nothing about this point. Issues were framed on the 16th July 1962 and no issue about non-joinder of parties was raised. The plaintiff discovered his documents on the 4th September 1962. In fact, a peremptory date was fixed for hearing on the 18th May 1963. Not even then was this Indian Soldiers (Litigation) Act thought of by the defendant. It was for the first time on the 15th Tune 1963 after an early date was fixed for the hearing of the suit that the plaintiff made this application for stay under Section 6(2) of the Indian Soldiers (Litigation) Act. So, between 17-8-61 and 15-6-63 the defendant never thought of using this Act or its provision for staying his ejectment. Today, it is April 1966; five years are about to complete, the suit has not yet been heard. The plaintiffs claim for ejectment on the ground of bona fide requirement in waiting to be heard for five years. In the meantime,war conditions have come and gone and if such long delay or dilatory tactics are allowed, naturally other wars may come in the course of history and this suit perhaps will never have an opportunity of being heard at all. That I do not think is an use to which the Indian Soldiers (Litigation) Act should be put.
19. The Rule is accordingly discharged with costs assessed at two gold mohurs. Let the records go down expeditiously and let the suit be disposed of as early as possible.
D. Basu, J.
20. I would like to add a few words on the interpretation of Section 6 of the Indian Soldiers (Litigation) Act, 1925 and its applicability to the facts of this case with respect to which, presumably, the learned single Judge has referred this revision case to this Bench. Two Sub-sections of Section 6 deal with two different circumstances under which the proceeding of a pending litigation may be suspended by reason of the fact that an Indian Soldier as defined under Section 2(b) of the Act is involved or interested in such litigation. Sub-section (1) deals with the case where the soldier is himself a party to the pending proceeding. In such a case it is obligatory upon the Court to suspend the proceeding unless of course the proviso is attracted. Now, the circumstances under which the Court shall suspend a proceeding under Sub-section (1) are either that a Certificate under Section 5 issued by a Collector has been received by the Court or that the Court thinks it reasonable that the soldier is unable to appear therein and is not represented by any person duly authorised to appear to plead or act on his behalf. But Sub-section (1) clearly has no application where the soldier is not a party to the proceeding. In the instant case, a certificate has been issued by the Collector under Section 5 and use of that certificate was sought to be made to suspend the ejectment suit. But before issuing a certificate under Section 5 it is obligatory upon the Collector to be satisfied that the soldier is a party to the pending proceeding. There is no doubt that Capt. Banerjee, the soldier in question, was never a party to this proceeding. The Collector's exercise of his powers under Section 5 in the instant case, was thus patently without jurisdiction and the powers conferred by the legislature have thus been abused.
21. The certificate issued by the Collector being out of the way, we are to see whether the provisions of Sub-section (2) of the section are attracted to the facts of this case. This sub-section, of course, applied even though the soldier is not a party to the proceeding; but the discretionary power of the Court to suspend the proceeding has to be governed by two conditions. These conditions are (a) that the soldier is materially concerned in the outcome of the proceeding and (b) that his interests are likely to be prejudiced by his inability to attend. It has to be noted that these two conditions are cumulative and not alternative. In the instant case, as My Lord has pointed out, there is a dispute on the preliminary question whether Captain Banerjee is materially concerned in the outcome of this proceeding; inasmuch as he is not a recorded tenant and it is further disputed that his family or dependants are actually residing in the disputed premises. Be that as it may, even though this first condition may be satisfied, application of the second condition is seriously doubtful. The question raised by the second condition is whether the presence or appearance of the non-party soldier in the proceeding can improve the defence. It is nowhere stated in any of the papers on the record that there is any fact in the special knowledge of Captain Banerjee on which he can give evidence even though he is not the recorded tenant. Therefore, it is not possible to come to the conclusion that his interests in the litigation, if any, are likely to be prejudiced by his inability to attend. His physical presence in the Court would be immaterial to affect the result of the proceeding to ejectment. The reason is that his brother, who is the recorded tenant and the contesting defendant, has been doing all that is possible under the law to do in defence of the suit for ejectment and even if Capt. Banerjee were released from his duties to attend this litigation, the result would not have in any way been better.
22. In these circumstances, we are notsatisfied that an exercise of the discretionarypower of the Court to suspend the proceeding inejectment is called for. The concluding portionof Sub-section (2), namely, that the Court shallgive notice thereof in the prescribed manner tothe prescribed authority, comes into play onlywhere the Court exercises its discretionary powerto suspend a proceeding on being satisfied onthe two points mentioned above. When we arenot satisfied on those two points, we do not seeany reason why we should interfere with theorder of the Court below complained against.Accordingly, I agree with the order of my learned brother.