CHANAKYA NATIONAL LAW UNIVERSITY

CODE OF CIVIL PROCEDURE,1908.

SUITS BY OR AGAINST MILITARY / NAVAL MEN / AIRMEN

AIMS AND OJECTIVES: To thoroughly study about the suits by or against military, naval or
airmen under Order XXVIII of code of civil procedure.

RESEARCH METHODOLOGY: The researcher has adopted a purely doctrinal method of

research. The researcher has made extensive use of the library at the Chanakya National Law
University and also the internet sources.

SOURCES OF DATA: The following secondary sources of data have been used in the project:
a. Books
b. Websites
c. Statutes

TABLE OF CONTENTS:

1. INTRODUCTION.
2. PROCEDURE FOR INITIATION OF SUITS BY OR AGAINST
MILITARY / NAVAL MEN / AIRMEN (ORDER XXVIII).
3. A COMPARATIVE STUDY BETWEEN GENERAL SUITS
AND SUITS BY OR AGAINST MILITARY/NAVAL
MEN/AIRMEN.
4. CONCLUSION.

BIBLIOGRAPHY

1. INTRODUCTION:
As it is evident from its name, it mainly lays down the procedure to be adopted
in civil courts, and its principles may be applicable in other courts, like writ courts, and
Tribunals to the extent the enactments establishing the Tribunals provide for it. It
provides for a fair procedure for redressal of disputes. The other party may know what is
the dispute about, what defence it can take, and how both the parties may proceed to
prove their respective cases. Some of its provisions are substantive in nature and not
procedural at all, like Sections 96, 100, 114 and 115 providing for a right of appeal,
review and revision. The other provisions are generally procedural in nature. The purpose
of the Civil Procedure Code, 1908 (hereinafter referred to as Code) is to provide a
litigant a fair trial in accordance with the accepted principles of natural justice. The Code
is mainly divided into two parts, namely, Sections and Orders. While the main principles
are contained in the Sections, the detailed procedures with regard to the matters dealt
with by the Sections have been specified in the Orders. Section 122 of the Code
empowers the High Court to amend the Rules, i.e., the procedure laid down in the Orders
and every High Court had amended the procedure from time to time making the
amendments in the said Orders. The Code of Civil procedure plays a crucial and
determining role in expediting the adjudication of civil disputes. A Uniform procedure
was made for application of a code of simple and uniform procedure applicable to all the
courts of the Country. Procedural law is not only handmaiden of justice but plays
important role in achieving justice then substantive law. The statement that substantive
law resides in the interstices of procedure reflects this reality. Knowledge of procedural
law is an essential tool in the armoury of the legal practitioner. For a successful litigation
it is necessary to face all possible challenges of a procedural nature.
For the purpose of procedure, suits may be divided into two classes, namely, (1) suits in
general; and (2) suits in special cases. Sections 79 to 93 and Orders 27 to 37 deal with
suits in particular cases and the procedure to be followed in such suits.

Suits of civil nature falls into various categories, depending on the nature of suits, or status of
person filing the suit etc.
These categories in brief are as follows:
1.
2.
3.
4.

Suits By Or Agents Govt./ Public Office

Suits By Or Against Military/Naval Men/Airmen
Suits By Or Against Corporations
Suits By Or Against Firms And Persons Carrying On Business In Names Other Than
Their Own.
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5.
6.
7.
8.
9.

Suits By Or Against Trustees, Executors and Administrators.

Suits By Or Against Minors And Persons Of Unsound Mind
Suits By/Against Persons Of Unsound Mind
Suits Relating To Matters Concerning The Family
Summary Procedure. (Suit Relating To Bills Of Exchange, Hundis, Promissory Notes
Etc.)
10. How is Summary Suit Instituted
.
Suits By or Agents Govt./Public Office
1. Where the Govt. or Public Officer in official capacity is plaintiff (one who files the suit),
or the defendant (against whom the suit is filed), such Authority shall be named as
"Union of India" or " State Govt. of (State Concerned) or The " Name & designation " of
public officer.
2. In case, the suit is filled against a public officer in his/their official capacity, the
appropriate govt. shall also be made a party to the suit.
3. In such case, a two months prior notice has to (sec 80) be served on the Govt./public
officer, in case if/he is defendant having regard as--- as to who the party is, the notice
shall be served on the following:
i.
In case of Central Government, to it's secretary
ii.
In case of State Government, to it's secretary, or the collector of the district.
iii. In case of public officer, to him at his office.
4. However, in case of urgent basis/relief, the suit may be instituted against Govt./public
officer, after taking permission of the court.
5. The court is required to allow a reasonable time to the Government, to communicate the
subject matter of the suit through proper channel so as to enable the Govt. to accordingly
instruct the Govt. pleader/Counsel appearing on it's behalf. The court at its discretion may
also extend such time. However such time should not exceed 2 months in aggregate.
6. Where the Govt. undertakes the defence of such public officer, it shall authorise it's
pleader to appear in the court, and the pleader shall make an application in that regard to
the Court. If no such application is made by the pleader within the time fixed by the
court, the case shall proceed as if between private parties.
7. However, in all cases against the Govt./public officer the endeavor of the court shall be to
assist the parties to arrive at an amicable settlement if possible at the first instance and for
that the court is empowered to adjourn the proceedings for a reasonable period of time in
which attempts at settlement may be made by the parties.
Suits By or Against Military/Naval Men/Airmen
A suit may be instituted against any officer employed by any of the Armed forces; i.e. Navy,
Military or Airforce in their personal capacity and it shall proceed in the same manner as
between two private parties.
Suits By or Against Corporations
1. In suits against a corporation ( Companies : Private or public ), the summons are to be
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served either on the secretary, or any of the directors or principal officer of the
corporation or may be sent by registered post or personally served at the registered office
of the corporation.
2. If the corporation does not have any registered office then the service shall be made at
any place where the corporation carries on it's business.
3. Any documents concerned with the suit ( by or against the corporation ) can be
signed/verified by the following persons on behalf of the corporation:
i.
The Secretary
ii.
Any of it's Director
iii. Any Principal officer
Who are conversant with the facts and circumstances of the suit.
4. The court is empowered to direct personal appearance of any of the above named officer
at any stage of the suit, to answer questions relating to the suit.
Suits By or Against Firms and Persons Carrying on Business in Names Other Than Their
Own.
1. A suit may be instituted by or against any 2 or more persons claiming to be partners in a
partnership firm in the name of the firm provided such persons, were partners in the firm
on the date when the cause of action occurred.
2. Any party to such a suit may apply to the court for a statement of the names & addresses
of all the partners of the firm as on the date of occurrence the cause of action. The court
shall direct such a statement to be furnished and verified in a specific manner.
3. The proceedings in the suit shall then continue in the firm's name but the final decree
shall contain the names of the partners and all consequences shall follow as if the suit has
been against the partners individually.
4. Also the partners will appear individually in their own names in all court proceedings.
5. Similarly, a suit may also be instituted by or against any person or any Hindu, Undivided
family, carrying on any business in a name other than his own name, in the same manner
as against a partnership firm.
6. When two or more persons are surd in the name of the firm and any of them dies, during
the pendency of the suit or before institution of the suit then it is not necessary to make
his legal representative a party to the suit.
However, the legal representative can make an application, to be made a party and can also
enforce any claim against the surviving partners.
7. A partner served summons can appear in the court under protest that he was not a partner
of the firm when the cause of action accrued and he can apply to the court for
determination of such a question any time before the date of hearing and final disposal of
the suit.
Suits By Or Against Trustees, Executors and Administrators.
In cases where a suit has been instituted regarding a property between persons beneficially
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interested in the property and some third party, and the property, concerned is vested in a trustee,
executor or administrator, then the persons, beneficially interested in the property shall be
represented by the trustee/executor/administrator and the persons interested may not be made
parties to the suit.
In case there are more than one trustee / administrator or executors to a property then in case a
suit has been filed against one, others shall also be made parties to it. However, those executors
who are unable to prove their testator's will or who are outside India are not required to be made
parties.
Suits By or Against Minors And Persons of Unsound Mind
1. Since a Minor is not capable of entering into a contract, even suit, which is instituted by
him, will be filed in his name by his "next Friend", i.e. any other person who has attained
majority in some way.
2. Such " Friend" should be closely related to the minor so as to bonafidely ascertain the
interests of the minor, for instance father, mother, brother, sister etc, or guardian. He does
not become a party to the suit but merely represents minor's interest.
3. To avoid any discourage vexatious--- litigation by such person, the code provides that,
the courts can order the next friend to give security for payment of all the costs incurred
or likely to be incurred by the defendant.
4. Any person can be appointed, as the " Friend" or guardian of the minor as long as he is of
sound mind, has attained majority, has no interests adverse to that of the minor's and he is
not defendant or plaintiff in the suit.
5. Where there is neither any guardian appointed by a competent Authority, nor any other
person fit and willing to act as a guardian for the suit, the Court can appoint any of its
officers as a guardian to the suit.
6. The court may direct the costs incurred by such officer in his capacity as guardian to be
borne by:
i.
Any of/or all parties to the suit, or
ii.
Out of property of the minor, or
iii. Out of Any fund in the court in which minor, is interested.
7. A " Friend" is not allowed to enter into any agreement/compromise on the minor's behalf,
which may be in reference to the particular suit unless the court permits him to do so.
8. A "next friend" may retire but not before, he first recommends another person to take his
place and gives security for all the costs that have already been incurred in the suit.
9. ON ATTAINING MAJORITY:
10. On attaining majority, it shall be at the option of the minor plaintiff whether to proceed
with the suit or opt out.
11. In case he opts to proceed with the suit, he will have to make an application for discharge
of " Friend", and permission to proceed on own name.
12. In case he opts out, he can apply for an order to dismiss the suit/application on making
payment of costs incurred by the opposite party or which has been paid by his next
friend.
Suits By/Against Persons of Unsound Mind
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Similar provisions and rules apply to the persons of unsound mind as those which apply to
minors, whether a person develops a mental illness/infirmity during the pendency of suit or
before it.
Suits Relating to Matters Concerning The Family
The kinds of suits relating to family are:1. A matrimonial suit claiming any matrimonial relief including the declaration of validity
of a marriage or matrimonial status of any person.
2. A suit claiming a declaration of legitimacy of any person.
3. A suit relating to custody/guardianship of a minor/any person of family under a disability.
4. A suit for maintenance
5. A suit for declaring validity or effect of an adoption
6. A suit for relating to wills, intestate and succession
7. A suit relating to any matter concerning family in respect of which the parties are subject
to their personal law.
In all such cases, it shall be first the duty of court to make an endeavor to settle such types of
suits, to which this order applies. (O32A R3)
"Family" for such suits shall include the following:
1. A man and his wife living together plus any child or children born of them or either of
them.
2. A man not having a wife or not living with his wife, maintaining any child or children,
born of him or otherwise.
3. A woman and have husband/not living with her husband, maintain any child/children
being born of her or otherwise.
4. A man or woman living with his/her brother, ancestor or any close relative, related to
him/her by blood.
5. Any combination of one or more of the above.
Summary Procedure. (Suit Relating To Bills of Exchange, Hundis, Promissory Notes Etc.)
1. The important feature of "summary suit", is that, here the Defendant is not allowed to
defend the suit, unless he takes the permission from court.
2. Defendant is allowed to defend himself only if according to the affidavit filed by him, it
is must for the plaintiff to prove charges against him.
If by affidavit by Defendant, it appears that he has no defense, then court will decline him the
permission and pass necessary orders in favor of plaintiff.
3. Summary procedure applies to following kinds of suits:i.
Suits upon bills of Exchanges, hundies or promissory notes
ii.
Any suit filed by the plaintiff for recovery of a debt/money payable by the
defendant according to a written contract, or
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iii.

In case of an enactment wherein the amount to be recovered is a fixed amount of

money , or a debt other than a penalty, or
iv.
A guarantee, where the claim against the principal is in respect of a debt or for
money only.
4. The object behind provision of summary procedure was to ensure a speedy trial for
recovery of money in cases where the defendant has no defence and thus any
unreasonable delay sought to be caused is eliminated.
How is Summary Suit Instituted
1. A summary suit is instituted by presenting a plaint in the court containing the following
specification;
i.
It must mention that the suit is filed under summary procedure and below the title
of the suit it should be inscribed "Under Order XXXVII of code of Civil
Procedure, 1908".
ii.
It must state that no relief, which does not fall within the ambit of this rule, has
been claimed.
2. Then the summons of the suit are to be issued to the defendant, which should be in
prescribed from no. 4, accompanied with a copy of plaint and Annexures.
3. When the defendant appears, he is required to enter his appearance within 10 days of
receipt of summons. On default of his appearance it is assumed that he has admitted the
allegations made in the plaint and the plaintiff gets entitled to a final order granting him
the sum as mentioned in the plaint along with interest at the specified date and costs if the
Court thinks it appropriate. (Rule 2)
4. Where the defendant enters an appearance, the plaintiff is required to serve on him the
summons for judgment in Form no. "4A) accompanied with an affidavit verifying the
cause of action and the amount which is claimed in the plaint, and a statement to the
effect that there is no defense to the suit.
5. Then, the defendant may apply for leave to defend the suit within 10 days from the date
of service of summons, disclosing by way of an affidavit, such facts which he believes to
be sufficient to entitle him of the right to defend himself.
6. The Court shall not refuse permission to the defendant to defend the suit unless it
believes that the disclosure by the defendant does not show that he has any substantial
defense to raise or that it is frivolous.
Also, where the defendant admits part of the amount claimed by the plaintiff, then the court shall
permit the defendant to defend only, when such admitted amount is deposited by the defendant in
the court.
7. The court may also require the plaintiff or the Defendant to deposit some security amount
by way of costs, depending on the facts, i.e to ensure the Bonafide of plaintiff.

2. SUITS BY OR AGAINST MILITARY/NAVAL MEN/AIRMEN.

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Order XXVIII of the code deals with the procedure of initiation of suits by or against
military/naval men/airmen.
Order 28 - Suits by or against military or naval men or airmen.
Order 28 Rule 1 to 3
1. Officers, soldiers, sailors or airmen who cannot obtain leave may authorize any person to
sue or defend for them
(1) Where any officer, 3[soldier, sailor or airman] actual 4[serving under the Government] in 5
[such capacity] is a party to a suit, and cannot obtain leave of absence for the purpose of
prosecuting or defending the suit in person, he may authorize any person to sue or defend in his
stead.
(2) The authority shall be in writing and shall be signed by the officer, 3[soldier, sailor or
airman] in the presence of (a) his commanding officer, or the next subordinate officer, if the
party is himself the commanding officer, or (b) where the officer, 3 [soldier, sailor or airman,] is
serving in military, 1[naval], 2[or air force] staff employment, the head or other superior officer
of the office in which he is employed. Such commanding or other officer shall countersign the
authority, which shall be filed in Court.
(3) When so filed the countersignature shall be sufficient proof that the authority was duly
executed, and that the officer, 6[soldier 1[, sailor] or airman] by whom it was granted could not
obtain leave of absence for the purpose of prosecuting or defending the suit in person.
Explanation.--In this Order the expression "commanding officer" means the officer in actual
command for the time being of any regiment, corps, 1 [ship], detachment or depot to which the
officer, 6 [soldier, 1 [ sailor] or airman] belongs.
2. Person so authorized may act personally or appoint pleader
Any person authorized by an officer, 6 [soldier 1 [, sailor] or airman] to prosecute or defend a
suit in his stead may prosecute or defend it in person in the same manner as the officer,6 [soldier
1 [, sailor] or airman] could do if present; or he may appoint a pleader to prosecute or defend the
suit on behalf of such officer, 6 [soldier 1 [, sailor] or airman].
3. Service on person so authorized, or on his pleader, to be good service
Processes served upon any person authorized by an officer 6[soldier 1[,sailor] or airman] under
rule 6 or upon any pleader appointed as aforesaid by such person shall be as effectual as if they
had been served on the party in person.
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____________________________
1. Inserted by Act 35 of 1934, section 2 and Schedule.
2. Inserted by Act 10 of 1927, section 2 and Schedule I.
3. The words "soldier or airman" were Substituted by Act 10 of 1927, section 2 and Schedule 1,
for "or soldier" and "or a soldier" and the word "sailor" was Inserted by Act 35 of 1934, section 2
and Schedule.
4. Substituted by the A.O. 1937, for "serving the Government".
5. Substituted by Act 35 of 1934, section 2 and Schedule, for " military or air force".
6. Substituted by Act 10 of 1927, section 2 and Schedule 1, for "or soldier".

3.A COMPARATIVE STUDY BETWEEN GENERAL SUITS AND

SUITS BY OR AGAINST MILITARY/NAVAL MEN/AIRMEN.

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For the purpose of procedure, suits may be divided into two classes, namely, (1) suits in general;
and (2) suits in special cases. Sections 79 to 93 and Orders 27 to 37 deal with suits in particular
cases and the procedure to be followed in such suits. Sections 26 to 35-B and Orders 1 to 20 of
the (First) Schedule deal with the procedure relating to general suits. Order 1,2 and 4 provide for
parties to suit, frame of suits and institution of suits. Order 4 deals with the procedure for
institution of general suits whereas the procedure of institution of suits by or against military,
naval and armed men is dealt under Order 28 as discussed above.

Section 26 and Order 4 provide for institution of general suits. Order 1 deals with parties to a
suit. It also contains provisions for addition, deletion and substitution of parties, joinder, nonjoinder and misjoinder of parties and objections thereof. Order 2 lays down rules relating to
frame of suits, splitting and joinder of claims, joinder of causes of action.

The expression plaint has not been defined in the Code, but it means a private memorial
tendered to a court in which a person sets forth his cause of action; the exhibition of an action in
writing. The presentation of a plaint must be on a working day and during office hours, but there
is no such rule that such presentation must be made either at a particular place or at a particular
time. A judge, therefore may accept a plaint at his residence or at any other place even after
office hours, though he is not bound to accept it. But if not too inconvenient the judge must
accept the plaint, if it is the last day of limitation.

Section 26 - Institution of suits

Institution of suits
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1[(1)] Every suit shall be instituted by the presentation of a plaint or in such other manner as may
be prescribed.1
2[ (2)] In every plaint, facts shall be proved by affidavit.]

Order 4 - Institution of suits

Order 4 Rule 1 to 2
1. Suit to be commenced by plaint
(1) Every suit shall be instituted by presenting a 1[plaint in duplicate to the court] or such officer
as it appoints in this behalf.
(2) Every plaint shall comply with the rules contained in Orders VI and VII, so far as they are
applicable.
2[(3) The plaint shall not be deemed to be duly instituted unless it complies with the
requirements specified in sub-rules (1) and (2).]2
2 . Register of suits
The Court shall cause the particulars of every suit to be entered in a book to be kept for the
purpose and called the register of civil suits. Such entries shall be numbered in every year
according to the order in which the plaints are admitted.3

CONCLUSION:
1

Section 26 re-numbered as sub-section (1) thereof by Act 46 of 1999, section 2 (w.e.f. 1-7-2002)
Substituted by Act 46 of 1999, sec. 14(i), for "plaint to the Court" w.e.f. 1-7-2002
Inserted by Act 46 of 1999, sec. 14(ii), w.e.f. 1-7-2002

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For the purpose of procedure, suits may be divided into two classes, namely, (1)
suits in general; and (2) suits in special cases. Sections 79 to 93 and Orders 27 to
37 deal with suits in particular cases and the procedure to be followed in such suits.
Sections 26 to 35-B and Orders 1 to 20 of the (First) Schedule deal with the
procedure relating to general suits. Order 1,2 and 4 provide for parties to suit,
frame of suits and institution of suits. Order 4 deals with the procedure for
institution of general suits whereas the procedure of institution of suits by or
against military, naval and armed men is dealt under Order 28 as discussed above.

Where any soldier, sailor or airman is a party to the suit who is in actual service,
and is unable to obtain leave for prosecuting or defending the suit in personam, he
may authorize any person to sue or defend him. The person so authorized may
himself prosecute or defend the suit or appoint a pleader. Summons on a soldier,
sailor or airman may be served through this commanding officer.

BIBLIOGRAPHY:
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 Commentary on, The code of civil procedure,1908 (Nagpur: All India

Reporter, 11th ed, vol 2, 2012)
M.P.jain The code of civil procedure,(Nagpur: Wadhaw and Company,
second ed. 2007)
S.K Sriarvaria, The Code of Civil Procedure,1908 (Lexis Nexis Butterwords,
Mulla 17th ed., vol-1,2007).
Mulla, The Code of Civil Procedure,1908 ( Lahore: Law Publication
Company, 1976).

WEBLIOGRAPHY
http://www.vakilno1.com/bareacts/laws/civil-procedure-code-1908.html
http://www.advocatekhoj.com/library/bareacts/codeofcivilprocedure/index.p
hp?Title=Code%20of%20Civil%20Procedure,%201908
http://www.lawzonline.com/bareacts/civil-procedure-code/order28-rule2code-of-civil-procedure.htm
http://cja.gov.in/data/Executions.pdf
https://www.nls.ac.in/lib/bareacts/civil/cpc/cpco18.html

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