Order XXVIII Rule 1 CPC: Authorisation to Sue or Defend by Serving Defence Personnel
Order 28 Rule 1 of the Code of Civil Procedure, 1908 allows an officer, soldier, sailor or airman serving under the Government who cannot obtain leave to authorise another person to conduct a civil suit on their behalf, subject to prescribed formalities.
Order XXVIII Rule 1: Statutory provision explained
Heading: Officers, soldiers, sailors or airmen who cannot obtain leave may authorise any person to sue or defend for them.
Rule 1(1) - Right to authorise another person
Where an officer, soldier, sailor or airman actually serving under the Government in that capacity is a party to a suit and cannot obtain leave to prosecute or defend the suit personally, the person may authorise someone else to sue or defend in their place.
Rule 1(2) - Written authority and countersignature
The authority must be in writing and signed in the presence of the commanding officer (or the next subordinate officer if the party is the commanding officer). For military, naval or air force staff employment, signing must occur before the head or another superior officer of the office. The relevant officer must countersign the authority, and the document must be filed in court.
Rule 1(3) - Evidentiary effect
Once the countersigned authority is filed in court, the countersignature is sufficient proof of due execution of the authority and the inability of the service member to obtain leave for personally prosecuting or defending the suit.
Explanation - Meaning of commanding officer
For this Order, a commanding officer means the officer in actual command at the relevant time of the regiment, corps, ship, detachment or depot to which the officer, soldier, sailor or airman belongs.
The paragraphs above explain the legal provision in accessible language; consult the official statute for its exact wording.
Conditions and procedure for authorisation
- The person must be an officer, soldier, sailor or airman actually serving under the Government in that capacity and be a party to the civil suit.
- The person must be unable to obtain leave to prosecute or defend the suit personally.
- A written authorisation must be signed before the officer specified in Rule 1(2).
- The designated officer must countersign the authorisation.
- The countersigned document must be filed in the court dealing with the suit.
Important: This rule addresses representation in civil litigation when leave cannot be obtained. It does not itself decide the merits of the claim or automatically dispense with other procedural requirements or a court direction requiring personal attendance.
Related provisions under Order XXVIII
Rule 2 - Authorised person may act or appoint a pleader
Under Order XXVIII Rule 2, the authorised person may prosecute or defend the suit personally, or appoint a pleader to act on behalf of the service member.
Rule 3 - Service on authorised person or pleader
Under Order XXVIII Rule 3, service of court process on the authorised person or their appointed pleader is effective as service on the party personally.
Official legal source
Read the Code of Civil Procedure, 1908 on India Code (official PDF), particularly Order XXVIII, Rules 1 to 3. State amendments and applicable court rules should also be checked where relevant.
For the wider statutory framework, see the Code of Civil Procedure, 1908: sections, orders and rules.