T. M. Doraiswami Vaithian by power agent P. Raman v. Dhanalakshmi Ammal
1965-09-03
T.VENKATADRI
body1965
DigiLaw.ai
Order.- This Revision Petition arises out of an order passed by the District Judge of East Thanjavur in I.A. No. 170 of 1963 in O.S. No. 18 of 1963 on the file of the District Court, Nagapattinam. The first respondent filed the suit O.S. No. 18 of 1963 for cancaellation of a sale deed executed by the second defendant in favour of the first defendant Dhanalakshmi Ammal. Pending the suit Dhanalakshmi Ammal filed an interlocutory application out of which this revision petition arises under section 6(2) of the Indian Soldiers’ Litigation Act of 1925 to suspend the proceedings in the suit had to give notice thereof in the prescribed manner to the pres-cribed authority. She alleges in her petition that her husband is now serving in the Indian Army in the North East Frontier Agency and though the sale deed is in her name the real owner of the property is her husband and he is interested in the property. The learned District Judge came to the conclusion that Dhanalakshmi Sal’s husband who is now in the Army is interested in the property and he allowed the petition. It is against this order that the plaintiff-petitioner has preferred this Revision Petition. The learned Counsel for the petitioner contended before me that the learned District Judge must find whether the husband is interested in the property. Apparently the sale deed is in her favour. They have not set up any case of benami. If a case of benami is setup it has to be proved in Court. There may be some force in the contention of the learned Counsel for the petitioner But still it is not unusual for the husband to purchase property in a wife’s name and when the matter comes to Court it is for the husband to prove that the property belongs to him and not to his wife. In the present proceedings the property might have been bought in the name of Dhanalakshmi Anyhow we cannot say that he has absolutely no interest in the property. But when the matter is thrashed out in Court it may be found that her husband who is now in the Army may not have any interest in the property. But, on the allegation made by her in the affidavit, she says that her husband has got interest in the property.
But when the matter is thrashed out in Court it may be found that her husband who is now in the Army may not have any interest in the property. But, on the allegation made by her in the affidavit, she says that her husband has got interest in the property. The learned District Judge has considered the allegations made in the affidavit and he comes to the conclusion that this suit has to be stayed under the Soldiers’ Litigation Act. Still the learned District Judge has considered the allegations tended before me that even though he has got jurisdiction to say the suit, the learned Judge has to follow certain fromalities prescribed in the Soldiers’ Litigation Act. Under section 6(2) 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 prescribed manner to the prescribed authority. What is the prescribed manner and the prescribed authority is set out in section 7? The learned District Judge simply passed an order stating that her petition is allowed. He does not give any indication of the steps that have to be followed. He must give notice as prescribed under the Indian Soldiers’ Litigation Act and on the receipt of information from the prescribed authority, he must decide whether too proceed with the suit or not. He also drew my attention to Kothandrama Mudaly v. Dharmalinga Mudaly1 where Byers, J., observed: “It is clear from the wording of this section that the powers of the Court are limited to suspending the proceedings after which it must give notice in the prescribed manner to the prescribed authority and then proceed under section 7 of the Act under which it is necessary before ordering a stay to find that the Soldier is serving under special conditions, and that a postponement is necessary in the interest of justice.” The learned Counsel also cited Koor Akbar Khan v. Mt. Mdhbooba2, which is to the same effect.
Mdhbooba2, which is to the same effect. I remand I.A No. 170 of 1963 to the District Court, Nagapattinam to enable the District Court to follow the procdure laid down in sections 6 and 7 of the Indian Soldiers’ Litigation Act and on receipt of reply from the concerned authorities the petition should be disposed of according to law. No order as to costs. R.M. ----- Matter remanded.