Read the order here.
Date of the decision: 27.01.22
Court: Gauhati High Court
Judges: Justice N. Kotiswar Singh and Justice Malasri Nandi
Summary: The Petitioner was declared as a foreigner by an ex-parte order of the Foreigners’ Tribunal (FT). In its order rejecting the review application filed by the Petitioner, the FT decided the case on merits without giving the Petitioner an opportunity to place his evidence on record. The Gauhati High Court set aside the ex-parte order and remanded the case to the FT for fresh consideration of the case on merits.
Facts: The Petitioner failed to appear before the FT on account of non-receipt of the summons notice issued to him. Subsequently, the FT proceeded ex-parte against the Petitioner and passed an opinion declaring him to be a foreigner who entered India after 1971. Thereafter, the Petitioner filed an application before the FT for setting aside the ex-parte opinion. However, the FT rejected the application filed by the Petitioner for the setting aside of the ex-parte order against him. In the same proceeding, the FT heard the matter on merits, on the basis of the documents relied upon by the Petitioner even though the Petitioner could not adduce evidence as it was not the stage for adducing evidence. Hence, the Petitioner filed the present petition before the High Court of Gauhati, challenging the ex-parte opinion passed by the FT against the Petitioner.
Holding: The Gauhati High Court allowed the petition. In its order, the Court observed that the FT passed an order on the review application filed by the Petitioner “on merits” without even allowing the Petitioner to adduce evidence to prove his nationality. The Court noted: “The learned Tribunal also heard the matter also on merit on the basis of documents which were relied upon by the petitioner, though the petitioner could not adduce evidence as it was not the stage for adducing of evidence” (paragraph 5). The High Court, while ruling that the Petitioner should be given another opportunity to prove his case, set aside the ex-parte opinion passed by the FT and remanded the case for fresh consideration on merits.
Significance: This case is significant as it affirms the importance of deciding the case on merits only after offering the Petitioner an opportunity to place his evidence on record. In addition, this case reiterates that an ex-parte order must be set-aside in the case of non-receipt of summons.
First, this order is correct in distinguishing between a case on merits. For example, Order 3C provides for the procedure to be followed by an FT for setting aside an ex-parte order that it has passed. Order 3C(2) states that after finding that the ex-parte opinion passed by it is liable to be set aside, the FT may proceed to decide the case on merits. This makes it clear that the stage of deciding the case on merits is after that of setting aside an application. This is also made clear through a reading of the general provision of Order IX, Rule 13 of the Civil Procedure Code.
State of Assam Vs. Moslem Mondal, the Full Bench of this Court had held that the Tribunal can entertain application for setting aside ex parte opinion provided the proceedee could demonstrate the existence of the “special/ exceptional circumstances” to entertain the same by way of pleadings in the application filed for setting aside the ex-parte opinion, otherwise the very purpose of enacting the Foreigners Act, 1946 and the 1964 Order would be frustrated.
According to the provision, once a court decides to set aside an ex-parte order passed against a defendant it is required to “appoint a day for proceeding with the suit”. The meaning of a case on merits is also clear from a reading of M/S. International Woolen Mills vs M/S. Standard Wool (U.K.) Limited. In this case, the Supreme Court held that a case on merits is one in which rival contentions are examined by the adjudicatory forum on the basis of the evidence adduced by them, the justness of their claims, and through the application of mind by the forum. Further, a case on merits is arrived at after a proper trial of the case and not hastily.
Second, this an important rule since it upholds the principle of natural justice. For example, the Supreme Court held in Sangram Singh v. Election Tribunal and Bachhaj Nahar v. Nilima Mandal (paragraph 7) that natural justice forms the backbone of the Code of Civil Procedure. Thus, this describes the rationale behind Order IX, Rule 13, i.e. to provide an opportunity to the defendant to prepare their case and present it before the court on the appointed day. The High Court of Gauhati has also held that the principle of natural justice must be followed in FT cases. For example, in Nijam Uddin vs Union of India, the FT passed an opinion solely on the basis of the documents adduced by the Petitioner. The Petitioner did not get an opportunity of being cross-examined by the State’s advocate. The Gauhati High Court while remanding the case to the FT for the cross-examination of the Petitioner, held that: “a proceeding before a Foreigners Tribunal is also guided by the tenets of natural justice. We find that the petitioner has got some documents and he deserves a proper hearing for these reasons and for the ends of justice we set aside the impugned opinion.” (paragraph 6)
In summation, this is a welcome order. It clarifies the importance of deciding the case on merits after ensuring that a reasonable opportunity to be heard has been presented to the Petitioner. This decision affirms the importance of adhering to the principle of natural justice in FT proceedings.
This case note is part of Parichay’s ongoing project to study, track, and publish key propositions and latest developments in citizenship law and adjudication in India. This note was prepared by Jagriti Pandey.