Research › Search › Judgment

Gauhati High Court · body

2015 DIGILAW 1521 (GAU)

MUSTT. FATEMA KHATUN v. UNION OF INDIA

2015-12-11

B.K.SHARMA, PARAN KUMAR PHUKAN

body2015
JUDGMENT B.K. Sharma, J. This writ petition is directed against the Annexure-2 order dated 29th August, 2012, followed by Annexure-3 & Annexure 5 orders dated 1st August, 2013 & 10th June, 2015. The orders are of the Foreigners Tribunal, Nagaon passed in F.T. Case No.563 of 2011 [State v. Musstt. Fatema Khatun]. While by the first order dated 29th August, 2012, the petitioner was declared to be a foreigner of post 25th March, 1971 stream upon her failure to discharge the burden of proof as envisaged under Section 9 of the Foreigners Act, 1946, by the second order dated 1st August, 2013, her application for setting aside the said ex-parte order was rejected. So far as the third impugned order is concerned, by the said order dated 10th June, 2015, her application under Section 114 CPC read with Section 151 CPC has been rejected, being devoid of any merit. 2. We have heard Mr. A.R. Sikdar, learned counsel for the petitioner. We have also heard Ms. G. Sarma, learned counsel appearing on behalf of Mr. S.C. Keyal, learned Assistant Solicitor General of India and so also Mr. M. Bhagabati, learned State counsel. We have also perused the entire materials on record including the LCR received from the Tribunal. 3. It appears that inspite of service of notice, the petitioner remained absent before the Tribunal on 3rd September, 2011. However, the matter was adjourned to 13th October, 2011, on which date, she appeared and filed written statement and photocopies of some documents. Thereafter, the matter was adjourned to 28th November, 2011 for evidence of the petitioner. She remained absent on all subsequent dates, which are 28th November, 2011; 12th January, 2012; 7th March, 2012; 2nd May, 2012; 22nd June, 2012; 3rd August, 2012 and finally 9th August, 2012 without any steps. Above being the position, the Tribunal had no other option than to decide the reference ex-parte against the petitioner. However, the petitioner filed an application under Order 9, Rule 13 CPC praying for setting aside the ex-parte order. The application was rejected by the second impugned order dated 1st August, 2013. In the application that was filed for setting aside the ex-parte order, the petitioner had contended that her engaged counsel had taken her signatures on papers and also assured of taking all necessary steps but due to his fault, the reference was answered ex-parte. 4. The application was rejected by the second impugned order dated 1st August, 2013. In the application that was filed for setting aside the ex-parte order, the petitioner had contended that her engaged counsel had taken her signatures on papers and also assured of taking all necessary steps but due to his fault, the reference was answered ex-parte. 4. After rejection of the application, the petitioner filed another application on 31st October, 2013 under Section 114 CPC read with Section 151 CPC and Order 47, Rule 1 CPC for modification and/or vacating the order dated 29th August, 2012. In the application so filed, the petitioner advanced her case on merit, unmindful of the fact that the reference was already answered and her application for setting aside the ex-parte opinion was also dismissed. After filing the said application on 31st October, 2013, she again prayed for time on 4th March, 2014; 8th May, 2014; 8th July, 2014; 21st August, 2014 and remained absent on 14th October, 2014 without steps. On the next dates, i.e. on 11th December, 2014; 19th December, 2014; 27th January, 2015 and 10th March, 2015 also the petitioner prayed for time and was allowed. Arguments were heard and on 19th May, 2015 and thereafter the impugned order dated 10th June, 2015 was passed. 5. It is submitted by Ms. G. Sarma, learned counsel appearing on behalf of Mr. S.C. Keyal, learned Assistant Solicitor General of India and Mr. M. Bhagabati, learned State counsel that the application under Section 114 CPC was not maintainable, as none of the principles for reviewing an order was attributed to the case. 6. In the writ petition, the petitioner assigned the following grounds urging for setting aside the ex-parte order:- "4. That it is respectfully begged to state on behalf of the petitioner that as she was not properly instructed by her lawyer she failed to appear in the case and failed to adduce evidence as her engaged lawyer did not guide her as to how to adduce evidence during the stage of evidence. Later on the petitioner and her husband tried her best to contact with her engaged lawyer namely Rathindra Kr. Adhikary. Despite paying repeated visits on several times the said Advocate was found absent in the Bar Association and even his mobile phone was found switch off. Later on the petitioner and her husband tried her best to contact with her engaged lawyer namely Rathindra Kr. Adhikary. Despite paying repeated visits on several times the said Advocate was found absent in the Bar Association and even his mobile phone was found switch off. Finding no way she enquired about the case personally on 25.7.2013 and thereby came to learn about the impugned ex-parte order dated 29.8.2012 vide Annexure-3. 5. That it is stated on behalf of the petitioner that after knowing about the order dated 29.8.2012, she contacted another lawyer who guide her to file a petition praying for vacating ex-parte order instead of filing a Review petition to modify the order dated 29.8.2012 so as to allow her to adduce evidence. But the said order not being treated as an ex-parte order rejected the petition by order dated 01.08.2013." 7. As the experience of this Court goes, in most of the cases involving the ex-parte order, the suspected foreigners/proceedees take the plea of improper guidance by the advocate. Often fault on the part of the engaged counsel is attributed, such as not taking steps, not informing the proceedee of the dates fixed etc., unmindful of the position of law that it is the bounden duty of the suspected foreigner/proceedee to respondent to the reference discharging the burden of proof under Section 9 of the Foreigners Act, 1946 about which detail discussions have been made in Sarbabanda Sonowal v. Union of India reported in AIR 2005 SC 2920 . 8. Although the reference was answered way back on 29th August, 2012 but the petitioner after filing the application for setting aside the ex-parte order and disposal of the same by order dated 1st August, 2013, again filed an application under Section 144 CPC and thereafter, kept on taking time. In the process, the reference that was registered way back in 2011 (3rd August, 2011) got lingered indefinitely. 9. Coming to the writ Court, the petitioner has urged the aforesaid grounds for setting aside the ex-parte. In this connection, the Full Bench decision in Moslem Mondal v. State of Assam & Ors. In the process, the reference that was registered way back in 2011 (3rd August, 2011) got lingered indefinitely. 9. Coming to the writ Court, the petitioner has urged the aforesaid grounds for setting aside the ex-parte. In this connection, the Full Bench decision in Moslem Mondal v. State of Assam & Ors. reported in 2013 (1) GLT 809 may be referred to, in which while holding that the Foreigners Tribunal has jurisdiction to set aside the ex-parte order in the appropriate cases upon showing cogent, good and sufficient ground, opined that the said course of action cannot be a routine affairs, otherwise the very purpose of enacting the Foreigners Act, 1946 and the Foreigners (Tribunal) Order, 1964 would be frustrated. For a ready reference, paragraph 92 of the said judgment is quoted below:- "92 As discussed above, 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 order on an application to set aside an ex-parte opinion, provided it is proved to the satisfaction of the Tribunal that the proceed 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 proceed 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 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." (Emphasis supplied) 10. By no stretch of imagination, the aforesaid grounds can be said to be special/exceptional grounds towards setting aside the ex-parte order. Merely by filing a written statement and producing photocopies of documents, the petitioner did not discharge the burden of proof as envisaged under Section 9 of the Foreigners Act, 1946. Needless to say that photocopies of documents are not admissible in evidence. As has been held by the Apex Court in Life Insurance Corporation of India & Anr. Merely by filing a written statement and producing photocopies of documents, the petitioner did not discharge the burden of proof as envisaged under Section 9 of the Foreigners Act, 1946. Needless to say that photocopies of documents are not admissible in evidence. As has been held by the Apex Court in Life Insurance Corporation of India & Anr. v. Ram Pal Singh Bisen reported in (2010) 4 SCC 491 that mere filing or accepting a document in Court does not amount to proof of its contents. Admission of documents in Court may amount to admission of its contents but not the truth. For a ready reference, paragraph 31 of the said judgment is quoted below:- "31. Under the Law of Evidence also, it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. At the most, admission of documents may amount to admission of contents but not its truth. Documents having not been produced and marked as required under the Evidence Act cannot be relied upon by the Curt. Contents of the document cannot be proved by merely filing in a court." 11. For all the aforesaid reasons, we see no reason to interfere with the impugned order dated 29th August, 2012, followed by orders dated 1st August, 2013 and 10th June, 2015 passed by the Foreigners Tribunal, Nagaon in F.T. Case No.563/2011 and accordingly the writ petition stands dismissed. Consequently, the Superintendent of Police (B), Nagaon shall take the petitioner into custody and detain her in the detention camp forthwith till such time she is deported to her country of origin, i.e. Bangladesh. Simultaneously, the Deputy Commissioner, Nagaon shall ensure deletion of the name of the petitioner from the voter list, if found. 12. The Registry shall transmit the case records to the Foreigners Tribunal, Nagaon, Assam along with a copy of this judgment & order. 13. Copies of this order shall also be sent to the Superintendent of Police (B), Nagaon and the Deputy Commissioner, Nagaon. Copies of this order shall also be furnished to Ms. G. Sarma and Mr. M. Bhagabati, learned counsel appearing for the respondents, for their necessary follow up action. 14. List the matter after 1(one) month for submission of reports by the Superintendent of Police (B), Nagaon and the Deputy Commissioner, Nagaon.