An appeal against an order of dismissal for default passed under Rule 8 of Order 9 of the C.P.C. is without jurisdiction.

JUDGEMENT :- This is a second appeal by the defendants who lost in both the Courts below.

2. The respondent Abdul Rashid filed the suit against the appellants namely (1) the Superintendent of Police, Dist. Cachar (2) the Deputy Commissioner, Cachar and (3) Secretary to the Government of India, Ministry of Home Affairs (appellants 1 to 3 herein) for a declaration that he is an Indian citizen and for a perpetual injunction restraining them and their agents from deporting him from India and also from removing him from the post of Jail Warder. The facts necessary for the purpose of disposal of this appeal may be stated in brief as below.

3. On 8-5-65 the appellant No. 1 served an order under Section 3 of the Foreigners Act on the respondent, his wife and six daughters asking them to quit India on the allegation that they are Pakistani nationals. Thereafter, on the representation of the respondent, the matter was referred to the Foreigners Tribunal, constituted under the Foreigners (Tribunal) Order 1964, for opinion as to whether the respondent and his wife and daughters are foreigners within the meaning of the Foreigners Act, 1946 (hereinafter referred to as the Act). The Tribunal gave its opinion to the effect that the respondent is a Pakistani national although his wife and daughters were held to be Indian nationals. The respondent, thereafter, filed the suit for the reliefs as mentioned above, after service of notices on the appellants, as required under S.80 of the C.P.C. His case was that he is a citizen of India by birth and has got his permanent residence, which is his ancestral home, within Silchar town in the district of Cachar and that at no point of time he lost his citizenship of India.

4. The appellants contested the suit by filing two separate written statements - one purported to be on behalf of the State of Assam and others, signed and verified by the Deputy Commissioner, Cachar, and the other purported to be on behalf of the Union of India, signed and verified by the Under Secretary to the Government of India, Ministry of Home Affairs. The suit was resisted on various grounds both on facts and law. On facts their case was that the respondent was serving as a Constable No. 299 in the police department in Cachar. Under Assam Government Order No. SS. 11/94 dated 6th December, 1947 conveyed under I. G. P.s, Memo No. 25493-506/IV-A/62-47, dated 23rd December, 1947, he was released from service with effect from 3lst December, 1947 vide Cachar District Order No. 2255 dated 31st December, 1947, as he opted to serve in Pakistan, but in the year 1949 he left his service in East Pakistan and came to India and since then he has been residing illegally at Tikarbasti in Silchar town. It was further alleged that in the year 1952 the respondent by concealing his police service as constable in Cachar and his service in Pakistan, enlisted himself as Jail Warder in the District Jail, Silchar.

5Upon the pleadings the following issues were framed.

(1) Whether there is any cause of action ?

(2) Whether the suit is maintainable in its present form ?

(3) Whether the suit is barred by the law of limitation ?

(4) Whether the suit is barred by the rule of estoppel, waiver and acquiescence ?

(5) Whether the suit suffers from defect of parties ?

(6) What relief, ii any is the plaintiff entitled to ?

(7) Whether the notice under S.80 Code of Civil Procedure has been properly served ?

(8) Whether the plaintiff is a citizen of India ?

6. It may be mentioned here that the suit was once dismissed for default on 26-2-71 due to the absence of the plaintiff-respondent, under O.9, R.8 of the C.P.C. The respondent, instead of applying under O.9, Rule 9 of the C.P.C. for setting aside the order of dismissal filed an appeal before the Assistant District Judge against the order. The learned Assistant District Judge by his order dated 29-8-71 allowed the appeal and remanded the case to the trial Court with the direction that the Court below should grant oppor