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

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Legal Commentary & Landmark Judgments: Order 28

Order XXVIII governs suits by or against military, naval, or airmen who cannot obtain leave of absence to prosecute or defend civil litigation, permitting them to authorize any person to act on their behalf.

  • Armed Forces Authorization [R. 1]: 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 authorize any person to sue or defend in his stead.
  • Commanding Officer Attestation: The authority shall be in writing and signed in the presence of the Commanding Officer or designated staff officer who countersigns the same.
  • Exemption from Stamp Duty: Such authority is exempt from court fees and stamp duty.
  • Full Procedural Standing: Authorized person exercises all powers of a recognized agent to sign pleadings, examine witnesses, and instruct pleaders.
Key Landmark Precedents:
  • Union of India v. Chaman Lal, AIR 1957 SC 652: The Supreme Court noted that Order 28 provides special procedural protection to serving armed forces personnel defending national borders, ensuring their private property rights are not forfeited during service.
  • Salem Advocate Bar Association (I) v. Union of India, (2003) 1 SCC 49: Affirmed the protective legislative policy under Order 28.
Courtroom Practice & Strategic Litigation Guidance:

Serving military personnel stationed at border posts can execute a specialized letter of authority countersigned by their Commanding Officer under Order 28 Rule 1, allowing family members to represent them in civil court without standard power of attorney stamp duty.

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