Code of Civil Procedure, 1908 (CPC)
Order XXVIII CPC: Suits by or Against Military, Naval and Air Force Personnel
A soldier posted on the frontier cannot attend a district court, and the Code does not pretend otherwise. Order XXVIII of the Code of Civil Procedure, 1908 allows an officer, soldier, sailor or airman who cannot obtain leave of absence to sue or defend through a person authorised by him in writing, makes that person a recognised agent for the purposes of Order III, and allows his evidence to be taken on commission. These notes cover the whole Order and the related protections the Code gives to serving personnel.
From the disability to the result: how Order XXVIII works step by step
1. Suing or Defending by an Authorised Person: Rule 1
§ Order XXVIII Rule 1, CPC 1908 (in substance) Where any officer, soldier, sailor or airman actually serving the Government in 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 authorise any person to sue or defend in his stead. The authority shall be in writing and shall be signed by the officer, soldier, sailor or airman in the presence of his commanding officer, or the next subordinate officer, and countersigned by such officer. Where the authority is so signed and countersigned, it shall be presumed to have been duly executed. |
§ The four elements of the rule Each must be satisfied: • The party must be an officer, soldier, sailor or airman actually serving the Government in that capacity. The Order does not extend to a person who has retired or been discharged, nor to civilian employees of the services. • He must be unable to obtain leave of absence for the purpose of prosecuting or defending the suit in person. The disability is practical, and it is the inability to attend, not the mere inconvenience, that the rule addresses. • The authority must be in writing, signed by him in the presence of his commanding officer or the next subordinate officer, and countersigned by that officer. • Where so executed, the authority is presumed to have been duly executed, which relieves the authorised person of having to prove its execution in the suit. |
2. The Authorised Person's Position: Rule 2
§ Order XXVIII Rule 2, CPC 1908 A person so authorised by an officer, soldier, sailor or airman may act on his behalf in the conduct of the suit as if he were a recognised agent within the meaning of Order III, and may make and do any appearances, applications and acts in or to the Court on his behalf. |
The rule imports the whole of Order III into the arrangement, and three consequences follow. The authorised person may appear, apply and act in the suit as the party himself might. Processes served on him are as effectual as if served on the party in person, by force of Order III Rule 3. And he may appoint a pleader, since a recognised agent may do so under Order III Rule 4. The serving officer therefore need not appear at any stage, and the suit proceeds as though he were represented in the ordinary way.
3. Evidence: Rule 3 and the Commission Provisions
§ Order XXVIII Rule 3, CPC 1908 Where any such officer, soldier, sailor or airman is a party to a suit and cannot obtain leave of absence for the purpose of giving evidence in person, the Court may issue a commission for his examination, or may accept his affidavit in evidence, in the manner the Code provides. |
i. Commission under Order XXVI. The general power in Section 75(a) and Order XXVI Rule 4 already allows a commission for the examination of a Government servant who cannot, in the court's opinion, attend without detriment to the public service, and Rule 4A permits a commission for the examination of any person in the interests of justice or for expeditious disposal.
ii. Exemption from personal appearance. A serving officer is ordinarily within the class of persons the Code exempts from compelled attendance where the public service would suffer, and Order XVI Rule 19 limits the distance a witness may be compelled to travel.
iii. Evidence on affidavit. Since 2002, Order XVIII Rule 4(1) requires the examination-in-chief of every witness to be on affidavit in any event, so a serving officer's chief evidence is filed rather than given orally, and only his cross-examination need be arranged, which may itself be taken on commission under Rule 4(2).
4. Related Protections for Serving Personnel
Provision | Protection given |
|---|---|
Order XXVIII Rules 1 and 2 | The right to sue or defend through a person authorised in writing, who acts as a recognised agent under Order III |
Order XXVIII Rule 3 with Section 75(a) and Order XXVI Rules 4 and 4A | Evidence may be taken on commission where leave of absence cannot be obtained |
Order XVI-A | Where a person whose evidence is required is confined in prison, the court may order his production or have his evidence recorded in the prison on commission |
Section 135 and Order XVI Rule 19 | Exemptions from arrest under civil process while attending court, and limits on the distance a witness may be compelled to travel |
Order XXVII Rule 5A and Rule 8B | Where a suit relates to an act by a public officer in his official capacity, the Government may be joined, and the definitions in Rule 8B govern; a serving officer sued for an official act has the protection of Section 81 |
Section 81 | In a suit against a public officer in respect of an official act, he is not liable to arrest, his property is not liable to attachment otherwise than in execution, and the court shall exempt him from personal appearance where he cannot absent himself without detriment to the public service |
§ The policy behind the Order The Order is a small one, but its principle is clear: military service is not a reason to lose a civil case. A person who cannot attend because the State has posted him elsewhere should not be at a disadvantage in litigation about his own property or family. The mechanism the Code chooses is representation rather than postponement. It does not stay suits involving serving personnel; it supplies a representative who can act with full authority, so that the other party is not kept waiting either. The countersignature of the commanding officer is what makes the arrangement workable: it authenticates the authority without requiring the court to investigate the circumstances of the posting, and it is why the rule attaches a presumption of due execution. |
5. Landmark Points
- Order XXVIII Rule 1. An officer, soldier, sailor or airman actually serving the Government who cannot obtain leave of absence may authorise any person to sue or defend in his stead, by a writing signed before and countersigned by his commanding officer, which is then presumed duly executed.
- Order XXVIII Rule 2. The person so authorised acts as if he were a recognised agent within Order III, so he may appear, apply and act, and service on him is service on the party.
- Order XXVIII Rule 3. Where such a party cannot obtain leave to give evidence in person, the court may issue a commission for his examination.
- Section 75(a) with Order XXVI Rules 4 and 4A. The general commission power, including for a Government servant who cannot attend without detriment to the public service.
- Section 81. Protections for a public officer sued in respect of an official act: no arrest, no attachment otherwise than in execution, and exemption from personal appearance.
6. Frequently Asked Questions
Who does Order XXVIII apply to?
An officer, soldier, sailor or airman actually serving the Government in that capacity who is a party to a suit and cannot obtain leave of absence to prosecute or defend it in person. It does not extend to a person who has retired or been discharged.
How does a serving soldier authorise someone to conduct his case?
By an authority in writing, signed by him in the presence of his commanding officer or the next subordinate officer and countersigned by that officer. An authority so executed is presumed to have been duly executed, so its execution need not be separately proved.
What can the authorised person do?
Under Order XXVIII Rule 2 he may act on the party's behalf in the conduct of the suit as if he were a recognised agent within Order III: he may appear, make applications and do acts in or to the court, appoint a pleader, and receive processes, service on him being as effectual as service on the party.
How is the evidence of a serving officer taken?
Where he cannot obtain leave to give evidence in person, the court may issue a commission for his examination under Order XXVIII Rule 3, read with Section 75(a) and Order XXVI Rules 4 and 4A. Since 2002 his examination-in-chief is in any event on affidavit under Order XVIII Rule 4.
Does the Code stay a suit while a party is on service?
No. The Code does not postpone the litigation; it supplies a representative who can act with full authority, so that the serving party is not prejudiced and the other party is not kept waiting.
7. Related Topics in This CPC Series
- Recognised Agents and Pleaders under Order III
- Commissions under Sections 75 to 78 and Order XXVI
- Suits by or Against the Government: Sections 79 to 82 and Order XXVII
- Orders XVI and XVI-A: Summoning and Attendance of Witnesses