The Indian Soldiers (Litigation) Act, 1925
4 of 1952
[24th February, 1925]
An Act to consolidate andamend the law to provide for the special protection in respect of civil andrevenue litigation of Indian soldiers serving under special conditions.
Whereasit is expedient 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; It is hereby enacted as follows: –
LEGISLATIVE HISTORY ▼
FACT SHEET ▼
|This Act has been extended to the new Provinces and the merged States by the Merged States (Laws) Act, 1949, S.3 (w.e.f. 1.1.1950) and to the States of Manipur, Tripura and Vindhya Pradesh by the Union Territories (Lows) Act, 1950 (30 of 1950), S.3 (w.e.f. 16.4.1950). Manipur and Tripura are full-filled States, now, see Act 81 of 1971 but Vindhya Pradesh is a part of Madhya Pradesh, see Act 37 of 1956, S.9.
It has been extended also to the States merged in the State of Madhya Pradesh by M.P. Act 12 of 1950, S.3 (w.e.f. 3.4.1950).
It has been extended to the Union Territory of Pondicherry by a notification issued under S.8 of the Pondicherry (Administration) Act, 1962 (49 of 1962), see Gazette of India, 1963, Pt. II, S.3(ii), p.3(S.O.4).
It has been extended to the Union territory of – (a)Dadra and Nagar Haveli by Regn. 6 of 1963 (w.e.f. 1.7.1965); and (b) Laccadive, Minicoy and Amindivi Islands by Regn. 8 of 1965 (1.10.1967). These Islands are now known as Lakshadweep, see Act 34 of 1973, S.3 (w.e.f. 1.11.1973). (c) Goa, Daman and Diu, see Gazette of India, 22.8.1984, Pt. II, S.3(i), Ext.p.2 No. 333-G.S.R. 621(E) of 1984.
(3) It shall come into force on the first day of April, 1925.
Object & Reasons▼
|Statement of Objects and Reasons.-In May 1915 an Ordinance was made and promulgated for the special protection in respect of civil and revenue litigation of Indian soldiers serving under war conditions. The Ordinance was replaced in the first instance by an Act passed in 1915, and the provisions of that Act were re-enacted, with certain amendments, in the Indian Soldiers (Litigation) Act, 1918. The Act applies to Indian soldiers serving under war conditions and provides inter alia for the postponement in certain circumstances of civil and revenue proceedings in which an unrepresented Indian soldier is a party and for the deduction from periods of limitation in suits, appeals or applications by Indian soldiers of the periods during which they have been serving under war conditions. The Act applies to service under war conditions during the war and for six months thereafter, and to other service which is declared by the Governor-General in Council to be service under war conditions.It was suggested that the protection required in these matters by Indian soldiers serving under war conditions was also required by .’Indian soldiers serving on garrison duty overseas and in certain areas in India. Local Governments and Administrations were accordingly consulted in regard to the working of the existing Act. They unanimously accept the suggestion to extend its operation and are of opinion that it has been found to be of real benefit to the absent Indian soldier, and that the hardship caused to the general public has been negligible. Certain of the authorities consulted were, however, of opinion that the Act should not apply to suits, appeals or applications to enforce a right of pre-emption, nor to cases in which the interests of the soldier in the proceeding are either identical with or are adequately represented by another party to the proceeding. The former restriction on the application of the Act may be compared with the exception in section 8 of the Indian Limitation Act, 1908, and the restriction was proposed because of the insecurity of tenure which is involved by the present law in such cases. The Bill has been prepared to give effect to these suggestions, and it has been considered expedient to provide for them by consolidating and amending the law on the subject.|
[(a) “Court “means a Court other than a Criminal Court and includes any suchtribunal or other authority as may be specified by the Central Government bynotification in the Official Gazette being a tribunal or authority which isempowered by law to receive evidence on any matter pending before it and on thebasis of such evidence to determine, after hearing the parties before it, therights and obligations of the parties in relation to such matter];
(b) “Indian soldier “meansany person subject to [the Army Act, 1950, or the Air Force Act, 1950], or the Navy Act, 1957;
(c) “prescribed “means prescribed by rules made under this Act; and
(d) “proceeding “includes anysuit, appeal or application.
3. Circumstances in which an Indian soldier shall be deemed to be serving underspecial conditions .-Forthe purposes of this Act, an Indian soldier shall be deemed to be or, as thecase may be, to have been serving –
(a) under special conditions (when he is or has been serving under warconditions), or overseas, or at any place [beyond India], [or any such placewithin India as may be specified by the Central Government by notification in the Official Gazette];
(b) under warconditions-when he is or has been, at any time during the continuance of anyhostilities declared by the [Central Government] by notification in the [Official Gazette] to constitute a state of war for the purpose of this Act or at any timeduring 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 prescribedauthority, preclude him from obtaining leave of absence to enable him to attenda Court as a party to any proceeding or when he is or has been at any othertime serving under conditions service under which has been declared by the [Central Government] by notification in the [Official Gazette] to be service underwar conditions; and
[Explanation.-For the purposes of this section and with effect from the 3rd day of September, 1939, asoldier who is or has been a prisoner of war shall be deemed to be or to havebeen serving under war conditions.]
4. Particulars to be furnished in plaints, applications or appeals to Court .- If any personpresenting any plaint, application or appeal to any Court has reason to believethat any adverse party is an Indian soldier who is serving under specialconditions, he shall state the fact in his plaint, application or appeal.
5. Powerof Collector to intervene in case of unrepresented Indian soldier .-If any Collector hasreason to believe that any Indian soldier, who ordinarily resides or hasproperty in his district and who is a party to any proceeding pending beforeany Court, is unable to appear therein, the Collector may certify the facts in the prescribed manner to the Court.
6. Noticeto be given in case of unrepresented Indian soldier .- [(1)] If a Collector hascertified 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 unableto appear therein, and if the soldier is not represented by any person dulyauthorised to appear, plead or act on his behalf, the Court shall suspend theproceeding and shall give notice thereof in the prescribed manner to theprescribed authority:
Provided that the Court may refrain from suspending the proceeding and issuingnotice if –
(a) the proceeding is a suit, appeal or application instituted or made by thesoldier, alone or conjointly with others with the object of enforcing a rightof pre-emption, or
(b) the interests of thesoldier in the proceeding are, in the opinion of the Court, either identicalwith those of any other party to the proceeding and adequately represented bysuch other party or merely of a formal nature.
[(2) If it appear 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 beprejudiced by his inability to attend, the Court may suspend the proceeding andshall give notice thereof in the prescribed manner to the prescribed authority.]
7. Postponement of proceedings .-If, on receipt of a notice under section 6, theprescribed authority certifies in the prescribed manner to the Court in which the proceeding is pending that the soldier in respect of whom the notice wasgiven is serving under special conditions, and that a postponement of theproceeding 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 asit thinks fit.
8. Courtmay proceed when no certificate received .-If, after issue of notice under section6, the prescribed authority either certifies that the soldier is not servingunder special conditions or that such postponement is not necessary, or failsto certify, in the case of a soldier resident in the district in which the Court is situate within two months or, in any other case, within three months,from the date of the issue of the notice that such postponement is necessary,the Court may, if it thinks fit, continue the proceeding.
9. Postponement of proceedings against Indian soldier on leave .-When any documentpurporting to be signed by the Commanding Officer of an Indian soldier who is aparty to any proceeding is produced by or on behalf of the soldier before the Court in which the proceeding is pending and is to the effect that the soldier-
(a) is on leave of absence for a period not exceeding two months, and is on the expiration of his leave to rejoin his unit with a view to proceeding onservice under special conditions, or
(b) is on sick leave for aperiod not exceeding three months, and is on the expiration of his leave torejoin his unit with a view to proceeding on service under special conditions, the proceeding in respect of such soldier may, in any case such as if referredto in the proviso to [sub-section (1) of section 6] and shall, in any other case,be postponed in the manner provided in section 7.
10. Powerto set aside decrees and orders, passed against an Indian soldier serving underwar or special conditions .-(1) In any proceeding before a Court in which a decree ororder has been passed against any Indian soldier [* * *] whilst he was servingunder any special conditions, the soldier [or, if he is dead, his legalrepresentative] may apply to the Court which passed the decree or order for anorder to set aside the same, and, if the Court after giving an opportunity to the opposite party of being heard, is satisfied that the interests of justicerequire that the decree or order should be set aside as against the soldier,the Court shall, subject to such conditions, if any, as it thinks fit toimpose, make an order accordingly.
[(2) The period of limitation for an application under sub-section (1) shall beninety days from the date of the decree or order, or where the summons ornotice was duly served on the soldier in the proceeding in which the decree ororder was passed, from the date on which the applicant had knowledge of thedecree or order; and the provisions of section 5 of the Indian Limitation Act,1908 shall apply to such applications.]
(3) When the decree or order in respect of which an application under sub-section (1) is made is of such a nature that it cannot be set aside as against the soldier only, it may be set aside as against all or any of the partiesagainst whom it has been made.
(4) Where a Court sets aside a decree or order under this section, it shallappoint a day for proceeding with the suit, appeal or application, as the casemay be.
[11. Modification of law of limitation where Indian soldier or his legalrepresentative is a party .-In computing the period of limitation prescribed bysub-section (2) of section 10 of this Act, the Indian Limitation Act, 1908, orany other law for the time being in force, for any suit, appeal or applicationto a Court, any party to which is or has been an Indian soldier, or is thelegal representative of an Indian soldier, the period during which the soldierhas been serving under any special conditions, and, if the soldier has diedwhile so serving, the period from the date of his death to the date on whichofficial intimation thereof was sent to his next-of-kin by the authorities in India, shall be excluded:
Provided that this section shall not apply in thecase of any suit, appeal or application instituted or made with the object ofenforcing a right of pre-emption [[except where the said right accrues in suchcircumstances, and is in respect of agricultural land and village immovableproperty situated in any such area][as the Central Government may, bynotification in the Official Gazette, specify in this behalf].]
[12. Powerof Court to refer questions to prescribed authorities .-If any Court is in doubtwhether, for the purposes of section 10 or section 11, an Indian soldier is orwas at any particular time serving under special conditions, or has died whileso serving, or as to the date of such death or as to the date on which officialintimation of such death was sent to his next-of-kin by the authorities in India, the Court may refer the point for the decision of the prescribedauthority, and the certificate of that authority shall be conclusive evidenceon the point.]
13. Rule-making power .-[(1)] The [Central Government] [* * *] may, by notification in the [Official Gazette]make rules to provide for all or any of the following matters, namely: –
(a) the manner and form in which any notice or certificate under this Actshall be given;
(b) the period for whichproceedings or any class of proceedings shall be postponed under section 7;
(c) the persons who shall be the prescribed authorities for the purpose ofthis Act; (d) anyother matter which is to be or may be prescribed; and
(e) generally, any matters incidental to the purposes of this Act.
[(2) Every rule made under this section shall be laid, as soon as may be afterit is made, before each House of Parliament, while it is in session, for atotal period of thirty days which may be comprised in one session or in two ormore successive sessions, and if, before the expiry of the session immediatelyfollowing the session or the successive sessions aforesaid, both Houses agreein making any modification in the rule or both Houses agree that the ruleshould not be made, the rule shall thereafter have effect only in such modifiedform or be of no effect, as the case may be; so, however, that any suchmodification or annulment shall be without prejudice to the validity ofanything previously done under that rule.]
14. Powerto apply the provisions of the Act to other person in the service of the Government .- [(1) [As respects the State Public Services, the [State Government][, and in othercases, the Central Government][may, by notification in the] [Official Gazette][,direct that all or any of the provisions of this Act shall apply to any otherclass of persons in the service of Government specified in such notification in the same manner as they apply to Indian soldiers.]
[(2) Where, under this section, the [State Government] [has directed that all orany of the provisions of this Act shall apply to any class of persons in theservice of Government, the powers vested in the Central Government by section 3and section 13 shall be exercised in respect of that class of persons by the [State Government].]
14-A. Power to apply the provisions of the Act to members of the forces maintained byany Part B State .-[Repealed by the Adaptation of Laws ( No. 3) Order, 1956 (w.r.e.f1-11-1956).]
15. Repeal of Acts 9 of 1918 and 12 of 1924.–[ Repealed by the Repealing Act,(1927 (12 of 1927), section 2 and Schedule.]