Banerjee, J.:— This is an application under sec. 115 of the Code of Civil Procedure against a decision of the learned Subordinate Judge, 24-Parganas, whereby he set aside an order of dismissal of the suit bade on December 14, 1942, and restored the suit to file for hearing.
2. The only question that arises in this case is a question of limitation and depends on the construction of secs. 10 and 11 of the Indian Soldiers (Litigation) Act (IV of 1925). The relevant portions of the sections are as follows:—
Sec. 10:— “(1) In any proceeding before a Court in which a decree or order has been passed against any Indian soldier whilst he was serving under war conditions or at any time after the 1st day of April, 1925, whilst he was serving under any special conditions, the soldier may apply to the Court which passed the decree or order for an order to set aside the same, and, if the Court after giving an opportunity to the Opposite Party of being heard, is satisfied that the interests of justice require that the decree or order should be set aside as against the soldier, the Court shall, subject to such conditions, if any, as it thinks fit to impose, make an order accordingly.
(2) No such application shall be entertained unless it is made within two months from the expiry of the first period of thirty days, after the date of the decree or order, or where the summons or notice was not duly served on the applicant, after the date on which the applicant had knowledge of the decree or order, during no part of which the soldier was serving under special conditions:
Provided that the provisions of sec. 5 of the Indian Limitation Act, 1908, shall apply to such applications.
3. Sec. (11):— In computing the period of Limitation prescribed by the Indian Limitation Act, 1908, or any other law for the time being in force, for any suit, appeal or application to any Court any party to which is or has been an Indian soldier, the time during which the soldier has been serving under war conditions since the 4th day of August, 1914, or under any special conditions since the 1st day of April, 192s, shall be excluded:
The suit was adjourned several times at the instance of the Plaintiff. It was fixed several times peremptorily. The Plaintiff did not appear. On 14th December his pleader said that he had no instructions. The suit was dismissed for default.
4. On 15th July, 1947, the Plaintiff made an application for setting aside the order of dismissal. The Plaintiff was a soldier serving under war conditions from 23rd May, 1942, to 25th November, 1946, when he was discharged
5. It is alleged in the petition that after his discharge he had an attack of gastritis and suffered from 7th December, 1946 to 27th June, 1947. But no point has been made before us on the ground of his illness.
6. The learned Subordinate Judge made the order on 1st March, 1949, allowing the application for setting aside the dismissal. From this order the present application has been made.
7. The total period the Plaintiff served under war conditions is four years, six months and three days. The question is whether the whole of this period should be excluded in computing the period of limitation. The Court below has excluded the period. The Judge construed the words in sec. 11, “the time during which the soldier has been serving under war conditions,” in a literal sense. There seems to be no justification for excluding the period prior to 14th December, 1942. During this period the Plaintiff was not and indeed could not be prevented from making the application by reason of his service. I can understand exclusion of the period he was in service after the order of dismissal. How can the prior period affect the question, I do not see.
8. A too literal adherence to the words of the section would produce an absurdity and injustice. Take for example the following case. A soldier who had been serving under war conditions for six years prior to an order of dismissal, is discharged a day after the order. Is the soldier entitled to get exclusion of the six years minus a day, in computing the period of limitation? That would be absurd.
9. The Act was passed to provide for the special protection of soldiers serving under special conditions, in respect of civil and revenue litigation. It is quite intelligible why time should not run against a soldier if he was serving under war conditions since the commencement of the time before the order of dismissal is not excluded, the application was out of time.
10. It seems to us that the construction put upon the words by the learned Judge is not correct.
11. He has exercised a jurisdiction under misconception of the law. In other words, he has exercised a jurisdiction not vested in him by law.
12. Therefore the learned Judge's order should be set aside. The petition is allowed and the Rule is made absolute with costs.
Harries, C.J:— I agree.
N.D.R