MANOJIT BHUYAN, J.

1. Heard Mr. A.S. Tapadar, learned counsel for the petitioner as well as Ms. G. Sarmah, learned CGC for respondent no.1; Mr. A. Kalita, learned counsel for respondent nos.2, 3, 6 & 7; Mr. A.I. Ali, learned counsel for respondent no.4 and Ms. A. Verma, learned counsel for respondent no.5.

2. The petitioner assails the judgment and order dated 7.9.2009 passed by the Foreigners' Tribunal-I, Karimganj in F.T. Case No.634/2007, declaring the petitioner as a foreigner. Such declaration was made on the basis of reference made by the Superintendent of Police (Border), Karimganj.

3. Having heard the learned counsels for the parties and on perusal of the materials on record we, at the outset, are not inclined to interfere with the aforesaid judgment and order dated 7.9.2009 for the reasons stated hereunder.

4. The notice of the proceeding in the said F.T. Case No.634/2007 was duly issued and served upon the petitioner through her husband. However, despite receipt of notice, the petitioner remained absent without any steps. Apparently, she neither did adduce evidence nor discharged her statutory burden under Section 9 of the Foreigners Act, 1946. In such a situation, the petitioner was declared to be a foreigner. About 7 (seven) years later, the petitioner filed an application under Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure for setting aside the ex-parte order dated 7.9.2009 along with a delay condonation petition under Section 5 of the Limitation Act, 1963. The said application was registered and numbered as Misc. Case No.07/2016. The same was dismissed vide order dated 2.8.2016 of the Foreigners Tribunal-II, Karimganj on ground that the petitioner could not show satisfactory explanation for condoning the delay. However, in the said order the learned Member, Foreigners Tribunal-II, Karimganj made an observation that having regard to the documents at Annexures-A, B and C of the application, it prima facie appeared that the petitioner has an Indian origin since the time of her forefathers.

5. Dealing first with the observation made by the learned Member in the order dated 2.8.2016, as above, we place on record that the learned Member exceeded his jurisdiction in making such observation, that too, in an application under Order 9 Rule 13 of the Code of Civil Procedure. Further, the said untoward observation was made on the basis of three documents, which were never produced nor pleaded nor proved by the petitioner in the original proceeding. We take strong exception to such observation made.

6. Turning to the case in hand, without any dispute the petitioner abstained from participating in the proceedings despite service of notice through her husband. From the available records i.e. Annexure-15 to the writ petition, which is the deposition of the petitioner in Misc. Case No.07/2016, a clear statement is also made that she had received a notice issued by the Foreigners' Tribunal, Karimganj.

7. In the above fact situation, we hasten to add that in a proceeding under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964 the primary issue for determination is whether the proceedee is a foreigner or not. The relevant fact being especially within the knowledge of the proceedee, as such, the burden of proving citizenship absolutely rests upon the proceedee, notwithstanding anything contained in the Indian Evidence Act, 1872. This is mandated under Section 9 of the aforesaid Act, 1946. Accordingly, burden is cast upon the proceedee to plead and prove evidence to establish that he is not a foreigner. The said position would not change in an ex-parte proceeding before the Tribunal as the burden never shifts but continues to be upon the proceedee. In a situation where no evidence is adduced or the burden is not discharged, the only alternative left open to the Tribunal would be to declare the proceedee to be a foreigner, based on the grounds of reference upon which appropriate proceeding wa