P L D 1952 Peshawar 16 (PLP)

MUHAMMAD SHAFI, J.‑On the 6th of February 1945, Muhammad Humayun Khan instituted a suit against Captain Aminul Haq and two others for possession by pre‑emption of 206 kanals 13 marlas of land, situated in Dhobian, on payment of Rs. 3,900, subject to a previous mortgage charge of Rs. 1,

100. As Captain Aminul Haq, who is now Lt. Col. Aminul Haq, was serving in the Army, the Court received a certificate under section 6 of the Indian Soldiers (Litigation) Act of 1925, that Major Aminul‑Haq, son of Gul Ahmad was serving under special conditions, and that a postponement of the proceedings in respect of him was necessary in the interests of justice. On the receipt of this certificate, the learned trial Judge on 23rd July 1945, postponed the entire proceedings "till the termination of war or till defendant No. 2 (Captain Aminul Haq) was free". The proceedings were ordered to be filed sine die. On the 4th of February 1950, Muhammad Humayun Khan made an application to the Court to the effect that as the War had terminated and the defendant was no longer serving in War, therefore, the suit be revived. The learned Senior Sub‑Judge has dismissed this applica tion, holding that it is barred by limitation. The argument which he advanced in support of his decision was that this application was governed by Article 181 of the Limitation Act, which provided three years from the date when the right to apply accrued to the plaintiff. According to him the state of emergency came to an end on 1st April 1946, vide His Majesty's Order in Council, dated 20th March 1946. The plaintiff had to make the application within three years of this date, but as the application was made beyond three years of the above date, it was statute‑barred. Muhammad Humayun Khan has come up on revision against the above order to this Court. Under section 7 of the Indian Soldiers (Litigation) Act IV of 1925, if a Court receives a notice under section 6, it has to postpone the proceedings in respect of the soldier for the prescribed period, or if no period has been prescribed for such period as it thinks fit. There is no provision in this section, or in any ocher section of this Act, authorizing the Court to postpone the proceedings till the termination of the War, or when the defendant is free. The word "prescribed" means prescribed by rules made under this Act. Section 13, authorizes the Central Government after consulting the High Court concerned to make rules to provide for all or any of the matters mentioned ‑in this section. The rules were actually made in 1938. Rule 7 was to the following effect :‑ "On receipt of a certificate from the prescribed authority under section 7 of the Act, that a postponement of the pro ceedings is necessary in the interests of justice, the Court shall postpone the proceedings until the receipt of a certifi cate in Form D, from the prescribed authority, or until the soldier is represented in the proceedings by some person duly, authorized to appear, plead, or act in his behalf". It is admitted that in the present case neither did the Court receive a certificate in Form D from the prescribed authority, nor was Col. Aminul Haq represented in the proceedings by some person duly authorized to appear, plead or act in his behalf. In view of the express provisions of section 7 of the Indian Soldiers (Litigation) Act, the order of the learned trial Judge, staying the proceedings till the termination of War or till the defendant was free was obviously without Jurisdiction and illegal. As the Court had received a certificate as provided by law and had acting on that certificate postponed the case, it shall be taken as having postponed it for the period mention ed in the section itself. The expression "till the termination of War or till defendant 2 was free" mentioned in the order shall under the circumstances have to be completely ignored. As defendant 2 has now appeared in these proceedings, even if it was on the application made by the plaintiff, and is represented in the proceedings by his lawyer, the proceedings shall be taken to have been automatically revived. Under the circumstances the Court has to proceed with the case, and the question of limitation does not at all arise. Even if the pro ceedings be taken to have been postponed till the termination of War or till defendant 2 was free, still I fail to understand how was it the duty of the plaintiff to inform the Court that the proceedings which had been stayed should be revived, because the War has as a. matter of fact terminated and defen dant 2 had become free. The Act itself does not lay down anywhere that it is the duty of the plaintiff, to move the: Court for the revival of the stayed proceedings. The language of Article 181 of the Limitation Act, and particularly what is mentioned in its last column, viz., "when the right to apply accrues" clearly signifies that it is restricted only to those applications; which a certain party is bond to make. Where it is the duty of the Court to do a certain thing of its own accord, and independently of any application by any party to the suit, an application made to the court reminding it of its duty shall not be governed by this Article at all. In the case before me the proceedings had only peen post poned for a specified period. They had not been finally terminated. It is ridiculous to imagine that these proceedings should be, left as pending in Court for the mere reason that the appli cation of a party, asking the Court to revive the proceedings and terminate them finally has to be rejected as hawed by time. This in fact will be the necessary. but absured result of the order of the learned trial Court, that the application of the plaintiff being barred by time, the Court is, helpless in taking any step in the matter, and giving finality to the stayed proceedings, which all continue to pend for all times to come. Krishto Kamini Debi v. Girish Chandra Mondal and others, the case reported in A I R 1936 Cal. page 239, supports the view taken by me above. I am consequently of the opinion that the learned Senior Sub‑Judge's finding that the plaintiff's application is barred by time cannot in law or in equity be maintained. I, therefore, set aside, and remand the case back to him to decide it on merits according to law. Costs to follow the even. Pleader's fee Rs.

50. Orders announced. A. H. Revision accepted.