Challenging Ex Parte Orders – Special Circumstances

Ex parte orders are delivered without the presence of the accused in the Court/Tribunal. Ex parte orders are extremely significant in the context of Foreigners’ Tribunal (‘FT’) proceedings in Assam. It has been reported that since 1985, nearly 64,000 people in Assam have been declared as ‘foreigners’ through ex parte orders. They often become aware of the ex parte orders against them only when they are apprehended by the border police to be sent to detention centres. However, the Foreigners (Tribunals) Order, 1964, provides for a mechanism to set aside an ex parte order. Additionally, Tribunals can also accept applications to set aside ex parte orders in case they are of the opinion that certain special/exceptional circumstances led to the applicant being unaware of the proceedings. This research note studies the mechanism for setting aside an ex parte order and mentions the relevant cases where ex parte orders were set aside due to special/exceptional circumstances.  

I. Relevant Statutes/Rules/Orders

Paragraph 3C of the Foreigners (Tribunals) Order, 1964 provides for filing of an application before the FT for setting aside an ex parte order within a period of 30 days from the date of the said FT Opinion. Rule 3C of the Foreigners (Tribunals) Order, 1964, is as follows:

“3C. Procedure for setting aside ex parte order.–

(1) Where the Foreigners Tribunal has passed an ex-parte order for non-appearance of the proceedee and he or she has sufficient cause for not appearing before the Foreigners Tribunal, it may on the application of the proceedee, if filed within thirty days of the said order, set aside its ex parte order and decide the case accordingly.

(2) The proceedee may file an application to the Foreigners Tribunal within thirty days to review the decision of the Foreigners Tribunal claiming that he is not a foreigner and the Foreigners Tribunals may review its decision within thirty days of the receipt of such application and decide the case on merits.

(3) Subject to the provisions of this Order, the Foreigners Tribunal shall have the powers to regulate its own procedure for disposal of the cases expeditiously in a time bound manner.”

II. Special/Exceptional Circumstances

The Tribunal can entertain an application for setting aside an ex parte opinion if it is satisfied as to the existence of special/exceptional circumstances for the non-appearance of a person. State of Assam v. Moslem Mandal [(2013)3 GLR 402 at para 91 [Full Bench]] dealt with such special/exceptional circumstances:

“The Tribunals constituted under the Foreigners Act read with the 1964 Order have to regulate their own procedure and they have also the quasi-judicial function to discharge and hence in a given case the Tribunal has jurisdiction to entertain and pass necessary orders on an application to set aside an ex-parte opinion, provided it is proved to the satisfaction of the Tribunal that the proceedee was not served with the notice in the reference proceeding or that he was prevented by sufficient cause from appearing in the proceeding, reason for which was beyond his control. Such application, however, should not be entertained in a routine manner. The Tribunal can entertain such application provided the proceedee could demonstrate the existence of the special/exception 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 1946 Act and the 1964 Order would be frustrated. The Tribunal, therefore, would have the jurisdiction to reject such application at the threshold, if no ground is made out.”

III. Cases Dealing With Special/Exceptional Circumstances

S NoCase NameCitationOutcomeReasoning
1.Taher Ali v. Union of IndiaWP(C) 5608/2019AllowedMissing a single hearing cannot be grounds for an ex parte order.
2.Habibur Rahman v. Union of IndiaWP(C) 8564/2019AllowedWife’s death constitutes exceptional circumstance to set aside an ex parte order.
3.Samsul    Hoque    v. Union of IndiaAIR 2018 Gau 157 MANU/GH/ 0778/2018AllowedRiots in Mizoram (which was the appellant’s place of work) prevented him from attending court proceedings.
4.Huran    Nessa    v. Union of IndiaMANU/GH/0 792/2018AllowedThe proceedee was not aware that she was required to register herself with the FRRO within the stipulated time, as her husband/father had passed away before conveying this important information to her. This constituted an exceptional circumstance.
5.Bahej Ali v. Union of India2018(2) GLT 837 MANU/GH/ 1032/2017AllowedDue to the long pendency of reference (23 years), and the wife of the proceedee having passed away, the ex parte order was set aside.
6.Samad Ali v. Union of India2012(5) GLT 162 MANU/GH/ 0614/2012AllowedThe proceedee being an illiterate and poor man, submitted the requisite documents to the clerk who assured him that they would be admitted. He was of the bona fide belief that there was no need for him to attend the proceedings after that. The ex parte order was set aside.

This research note was edited by Sreedevi Nair.

Proving Documents When the Original Author Is Not Available

Bureaucratic exercises to determine citizenship are usually heavily reliant on documentation. The process to prepare the National Register of Citizens (‘NRC’) has been no different. For a person’s name to be included within the NRC, the applicant would have to submit documents such as land and tenancy records, board/university education documents, citizenship certificate, amongst others. Applicants would also be required to prove the validity and veracity of the documents they submit. This has to be done by examining the author or the issuing authority of the document, who would have to testify as to the veracity of the documents. However, often, the author of the document is not available for examination, for a variety of reasons. Problems could also arise in a situation where the documents are quite dated. Issues such as these could lead to dire consequences, such as the particular documents being rendered inadmissible as evidence, thereby jeopardizing the applicant’s claim of citizenship. In an analysis of 787 orders and judgments of the Gauhati High Court, it was found that one in two people were declared to be foreigners because the issuing authority/author of the document failed to appear before the Foreigners’ Tribunal and testify that the documents were genuine. Considering these severe consequences, it becomes important to analyse the legal provisions that can be used to prove a document when its author is not available to testify to its genuineness. This research note analyses the legal provisions which might help in proving documents whose author isn’t present. It also looks at the presumption for documents which are over 30 years old and objections regarding the mode and manner of proof of documents.

A. Proof of execution/genuineness of a document

Section 67 of the Evidence Act read with Section 45 and 47 talk about the proof of execution or genuineness of a document. This requires the identification of the handwriting/signature of the author of the document. This can be done by bringing the author of the document or any other person who witnessed the author signing/writing out the document, or who is generally familiar with the author’s signature/writing.

This can also be proved by circumstantial evidence, including the form in which the document was prepared and comparing that to other documents prepared by the same author or as a series in a regular correspondence or other internal clues about the genuineness of the document (e.g.: symbols/marks).

The original author of the document is not required to be present in court to prove a document and its contents. The proof of the truth of the contents of a document can be proved by any person who can vouchsafe for the truthfulness of those facts.

The following cases deal with the proof of documents:

  1. Mobarik Ali Ahmed v. State of Bombay, 1958 SCR 328 : AIR 1957 SC 857 : 1957 Cri LJ 1346 [Supreme Court – 4 judge bench]

In this case, the appellant relied upon certain letters, most of which were purported to bear his signature. A few of those signatures were admitted to by the appellant. There were also a few letters without signatures. Both the complainant and Jasawalla (a commission agent who was in correspondence with the appellant) speak to the signatures on the other letters. The objection of the learned counsel for the appellant was that neither of them has actually seen the appellant write any of the letters nor are they shown to have such an intimate acquaintance with his correspondence so as to enable them to speak to the genuineness of these signatures. The learned trial judge, as well as the learned judges of the High Court has found that there were sufficient number of admitted or proved letters which might well enable Jasawalla and the complainant to identify the signatures of the appellant in the disputed letters. They also substantially laid stress on the contents of the various letters, in the context of the other letters and telegrams to which they purport to be replies, and which form the chain of correspondence, as indicating the genuineness of the disputed letters. The learned counsel objected to this approach on a question of proof. However, the Court did not agree to this objection. The proof of the genuineness of a document is proof of the authorship of the document and is proof of a fact like that of any other fact. The evidence relating thereto may be direct or circumstantial. It may consist of direct evidence of a person who saw the document being written or the signature being affixed. It may be proof of the handwriting of the contents, or of the signature, by one of the modes provided in Sections 45 and 47 of the Indian Evidence Act. It may also be proved by internal evidence afforded by the contents of the document.

This last mode of proof by the contents may be of considerable value where the disputed document purports to be a link in a chain of correspondence, some links in which are proved to the satisfaction of the court. In such a situation the person who is the recipient of the document, be it either a letter or a telegram, would be in a reasonably good position, both, with reference to his prior knowledge of the writing or the signature of the alleged sender limited though it may be, as also his knowledge of the subject matter of the chain of correspondence, to speak to its authorship. In an appropriate case the court may also be in a position to judge whether the document constituted a genuine link in the chain of correspondence and thereby determine its authorship.  In this case, the Court refused to hold that the approach adopted by the lower courts in arriving at the conclusion that the letters were genuine, was open to any serious legal objection. The question, if any, can only be as to the adequacy of the material on which the conclusion as to the genuineness of the letters is arrived at. However, the Court did not look into this matter.

  1. Ramji Dayawala & Sons (P) Ltd. v. Invest Import, (1981) 1 SCC 80 [Supreme Court – 2 judge bench]

There existed a dispute between the parties, during the course of which letters and cables were sent. It was urged by the respondents that even if the Court proceeds on the assumption that the letter and the cable were received, it was not open to this Court to look into the contents of the letter and the cable. This was because the contents were not proved, as the Managing Director of the appellant Company who was supposed to have signed the letter and the cable had neither entered the witness-box nor filed his affidavit proving the contents thereof.

Reliance was placed on Judah v. Isolyne Shrojibasini Bose [AIR 1945 PC 174: 1945 MWN 634: 26 PLT 279]. In that case, a letter and two telegrams were tendered in evidence and it was observed that the contents of the letter and the telegram were not the evidence of the facts stated therein. The question in that case was whether the testatrix was so seriously ill as would result in impairment of her testamentary capacity. To substantiate the degree of illness, a letter and two telegrams written by a nurse were tendered in evidence. The question was whether in the absence of any independent evidence about the testamentary capacity of the testatrix, the contents of the letter could be utilised to prove want of testamentary capacity.  The Privy Council observed that the fact that a letter and two telegrams were sent by itself would not prove the truth of the contents of the letter and, therefore, the contents of the letter bearing on the question of lack of testamentary capacity would not be substantive evidence.

Mere proof of the handwriting of a document would not be tantamount to proof of all the contents or the facts stated in the document. If the truth of the facts stated in a document is in issue, mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue.

But in this case, Bhikhubhai Gourishankar Joshi, who filed an affidavit on behalf of the appellant, had referred to the averments in the letter and the cable. He was a principal officer and constituted an attorney of the appellant company. The Court established the truth of the averments made in the letter on the basis of the fact that even after the receipt of the letter and the cable were admitted or proved, and the fact that even after the dispute arose, but before the suit was filed, the respondent did not make any overt or covert references to the arbitration agreement, in the correspondence between the parties. The truth of the averments was also established on the basis of the failure of the respondent to reply to the letter and the cable controverting to the averments made therein, in the correspondence that ensued. The Court held that the averments contained in the letter and the cable were satisfactorily proved.

  1. Rami Bai v. Life Insurance Corporation of India, AIR1981MP69, 1981MPLJ192 [Madhya Pradesh High Court – Division Bench]

In this case, it was held that Section 67 of the Indian Evidence Act does not lay down any particular mode of proof for proving that a particular writing or signature is in the hand of a particular person. Thus, the signatures may be proved in any one or more of following modes:

  1. By calling the person who signed or wrote a document;
  2. By calling a person in whose presence the documents are signed or written;
  3. By calling handwriting expert;
  4. By calling a person acquainted with the handwriting of the person by whom the document is supposed to be signed or written;
  5. By comparing in court, the disputed signature or handwriting with some admitted signatures or writing;
  6. By proof of an admission by the person who is alleged to have signed or written the document that he signed or wrote it;
  7. By the statement of a deceased professional scribe, made in the ordinary course of business, that the signature on the document is that of a particular person. A signature is also proved to have been made, if it is shown to have been made at the request of a person by some other person, e. g. by the scribe who signed on behalf of the executant;
  8. By other circumstantial evidence.
  1. Dhar and Co v. Sib Narayan Singh, 59 Ind. Cas.188; MANU/WB/0195/1920 [Calcutta High Court – Division Bench]

In this case, it was held that where an executant denies that he wrote a document, the ordinary mode of proving the execution is by calling someone who saw such person write, or who knows his handwriting. This is only one of the modes of proving the document.  In this particular case, there were several papers on record which bore the admitted signatures of the respondent  and it was held that the Court could have compared the signature on the letter with those signatures.

B. Presumption for documents over 30 years old

Section 90 of the Indian Evidence Act allows a court to raise a presumption as to the genuineness of a document that is over 30 years old and is produced from the proper custody of the person who would normally be in possession of such a document in the usual course of things. In such a case, the author of the document does not need to come to court and identity the document or his handwriting, etc.

The following are some cases dealing with Section 90 of the Indian Evidence Act:

  1. State of A.P. v. Star Bone Mill and Fertiliser Company, (2013) 9 SCC 319 : (2013) 4 SCC (Civ) 444 : 2013 SCC OnLine SC 176 at page 325 [Supreme Court – 2 judge bench]

Section 90 of the Indian Evidence Act is based on the legal maxims: nemo dat qui non habet (no one gives what he has not got); and nemo plus juris tribuit  quam ipse  habet (no one can bestow or grant a greater right, or a better title than he has himself). This section does away with the strict rules, as regards the requirement of proof, which are enforced in the case of private documents, by giving rise to a presumption of genuineness, in respect of certain documents that have reached a certain age. The period is to be reckoned backward from the date of the offering of the document, and not any subsequent date i.e. the date of decision of suit or appeal. Thus, the said section deals with the admissibility of ancient documents, dispensing with proof as would be required, in the usual course of events in a usual manner.

  1. Desh Raj v. Bodh Raj, (2008) 2 SCC 186 : (2008) 1 SCC (Civ) 498 at page 197 [Supreme Court – 2 judge bench]

This case involved a dispute between Desh Raj (appellant) and Bodhi Raj (respondent) as to the respondent’s caste, and whether he was entitled to contest elections from a seat reserved for Scheduled Castes. In this case, the High Court rejected two exhibits, Exts. PW 3-A and PW 3-B, on the ground that the date of Ext. PW 3-A was not clear and could be read as either 22-4-1966 or 23-4-1968. But neither of those dates correlated to Ext. PW 3-B, as that showed that the admission must have been made between 11-9-1967 and 4-4-1968. It is evident from Ext. PW 2-A that Bodh Raj left the primary school on 31-3-1967. The date on which the application for admission was registered was seen as “22.4.196­  ”. The Court had a doubt regarding the last figure in the “year” and had to determine whether it was ‘6’ or ‘7’ or ‘8’ as that would make the year 1966, or 1967, or 1968. Merely because there was difficulty in reading one figure in the date could not be a ground to refuse to accept Ext. PW 3-A. The said application submitted by

Milkhi Ram, containing his thumb mark, being a document more than 30 years old attracted the presumption under Section 90 of the Evidence Act. As Ext. PW 3-A gives the caste as “Tarkhan”, it has to be treated as clinching evidence. Ext. PW 3-B which was also produced from proper custody in pursuance of summons issued from the Court showed that Bodh Raj, son of Milkhi Ram, Tarkhan caste, belonging to Mohtli Village studied up to 8th standard. Here, the Court noticed that the evidence of the witnesses of both, the appellant and the respondent was that there is only one Bodh Raj, son of Milkhi Ram in Mohtli Village. Therefore, the Court held that there was no justification to hold that there were some irreconcilable differences between Ext. PW 3-A and Ext. PW 3-B and rejected both the documents.

  1. Laisangbam Bimol Singh v. Konsam Babulen Singh, 1999 SCC OnLine Gau 159: (2000) 3 Gau LR 389 : (2000) 1 Gau LR 457 at page 394 [Gauhati High Court – Division Bench]

As a general rule if a document is produced before a court its execution must be proved by a witness and if the document is required by law to be attested, its attestation must also be proved by some witness. Only when this formality has been observed can the document form part of the record and be looked into. If the documents produced in court are not proved, they cannot be relied upon. But there may be circumstances when the documents have been produced before the court long after they have been executed. The time elapsed between the execution and the production of document in the court may be so long that all the persons in whose presence the document was executed might have died. If the method of proof mentioned above is strictly to be followed in such cases, it could cause great hardship and a number of genuine documents would remain unproven. Section 90 of the Indian Evidence Act is a provision for this kind of a situation. This section is founded on necessity and convenience. Section 90 gives the court the power to draw a presumption about a document which is 30 years old. The conditions for presumption are as follows:

  1. The document must have been in existence for 30 years or more.
  2. It must be produced in court from proper custody.
  3. The document must be in appearance free from suspicion.
  4. It must purport to be in the handwriting of a person and should not be anonymous.

The period of 30 years is to be reckoned, not from the date upon which the deed is filed in court but on the date on which it has been tendered in evidence, when its genuineness or otherwise becomes the subject of proof. Generally, there is no presumption about the recitals in such a document. But in some circumstances a recital of consideration, legal necessity etc. may be presumed under Section 90. The presumption under Section 90 is rebuttable, but in such a case, the burden will fall on the defendant.

C. No objection as to mode and manner of proof taken at the appropriate stage

Irregularities or errors in the mode or manner of proof of documents must be taken at the stage of tendering the document into evidence and not at a later stage.

In the absence of the objection at the stage of tendering the document into evidence, the document cannot be assailed at a later stage on the ground that the mode or manner of proof was incorrect.

The following cases deal with objections as to the mode and manner of proof:

  1. RVE Venkatachala Gounder v. Arulmigu Visweswaraswami (2003) 8 SCC 752

In this case it was held that, if there is any objection to the evidence, it should be taken before the evidence is tendered.  Once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by this failure, the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence. There are two reasons for this.  Firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there. Secondly, in the event of a finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking the indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties.

  1. Gopal Das v. Sri Thakurji, AIR 1943 PC 83

This case pertained to a scenario where the objection to be taken was not that the document was   in itself inadmissible but that the mode of proof put forward was irregular or insufficient. The Court held that in such a scenario, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. It held that a party cannot lie by until the case comes before a court of appeal and then complain for the first time about the mode of proof.

This note has been edited for clarity by Sreedevi Nair.