Code of Civil Procedure, 1908 > Order XXVIII

Order XXVIII CPC: Suits by or Against Military or Naval Men or Airmen

Order XXVIII of the Code of Civil Procedure, 1908 provides a special procedure where an officer, soldier, sailor or airman serving under the Government is a party to a civil suit and cannot obtain leave of absence to prosecute or defend the suit in person.

Rules covered: Rule 1 permits an eligible service member who cannot obtain leave to authorise another person to sue or defend in his stead. Rule 2 describes how the authorised person may act. Rule 3 deals with effective service of process on that authorised person or the pleader appointed by him.
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Official reference: Code of Civil Procedure, 1908 - India Code and official consolidated CPC PDF. Check the official text and any applicable State or High Court amendments before relying on the provision in a particular proceeding.

Rule 1 - Officers, soldiers, sailors or airmen who cannot obtain leave may authorise any person to sue or defend for them

(1) Where any officer, soldier, sailor or airman actually serving under 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.

(2) The authority shall be in writing and shall be signed by the officer, 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, soldier, sailor or airman is serving in military, naval 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, soldier, 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, ship, detachment or depot to which the officer, soldier, sailor or airman belongs.

Meaning and effect of Rule 1

Rule 1 enables a qualifying officer, soldier, sailor or airman who is unable to obtain leave to participate in the suit through a duly authorised person. The authority must be written, signed and countersigned in the manner prescribed by the rule and then filed in Court.

Rule 2 - Person so authorised may act personally or appoint pleader

Any person authorised by an officer, soldier, 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, soldier, sailor or airman could do if present; or he may appoint a pleader to prosecute or defend the suit on behalf of such officer, soldier, sailor or airman.

Meaning and effect of Rule 2

The authorised representative has two alternatives: the representative may personally prosecute or defend the suit, or may appoint a pleader to act for the service member.

Rule 3 - Service on person so authorised, or on his pleader, to be good service

Processes served upon any person authorised by an officer, soldier, sailor or airman under Rule 1, 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.

Meaning and effect of Rule 3

Once an authorised person or a pleader has been appointed under Order XXVIII, service of Court process upon that person or pleader has the same legal effect as personal service upon the officer, soldier, sailor or airman.

The statutory wording above is presented for convenient reference. For authoritative text, amendments, footnotes and jurisdiction-specific variations, consult the official India Code source.