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2018 Supreme(Gau) 1024
IN THE HIGH COURT OF GAUHATI
A.K.GOSWAMI, M.R.PATHAK, JJ.
Bakul Chandra Acharjee - Appellant
Vs.
Union of India and Others - Respondent
Writ Petition (Civil) No. 7897 of 2016
Decided On : 14-09-2018
A. Choudhury, Adv., G. Sarma, Adv.
Headnote:
Civil procedure code 1908 - Rule 6 - Order 22 - Foreigners Act, 1946 - Section 9 - Issue of the legal consequences - Suit dies - Petitioner on instructions made submission during mentioning hour that petitioner expired and on her such submission the Court directed to list the matter under the column "To be spoken to" and accordingly the matter was listed on said date - Arguments advanced by the parties on the issue of the legal consequences on the death of the petitioner after judgment was reserved - Order 22 Rule 6 CPC stipulates that If any of the parties to a suit dies after the hearing has been completed and before the judgment is pronounced, the suit would not abate - Accordingly, by order, we closed the matter again for judgment - Contention of the petitioner is that the impugned judgment of the learned Tribunal curtailed petitioners personal liberty and it suffers from illegality and arbitrariness and as such, the same needs to be set aside and quashed – Held, learned Tribunal passed the impugned Judgment on appreciation of the materials on record. The documents on the basis of which the petitioner led his claim before the Tribunal did not support his version and the petitioner failed to discharge his burden under Section 9 of the Foreigners Act, 1946 to dislodge the accusation made against him by the State – Court are not inclined to interfere with the impugned Judgment passed by the learned Member, Foreigners Tribunal in F.T. Case - Writ petition being devoid of merit stands dismissed.
Manash Ranjan Pathak, J.
Heard Ms. Barnali Chowdhury, learned counsel for the petitioner. Also heard Ms. G Sarma, learned CGC for the respondent No. 1 and Mr. U K Nair, learned Senior Special Standing Counsel, Foreigners Tribunal, assisted by Ms. P Borgohain, learned counsel for the respondent Nos. 2 to 5.
2. Challenge in this writ petition is to the Judgment dated 24.09.2016, passed by the learned Member, Foreigners Tribunal, Diphu, District-Karbi Anglong, Assam, in F.T. Case No. 135/2007, wherein the said Tribunal opined that the petitioner is not an Indian Citizen but a foreigner.
3. After the hearing of the matter was closed on 20.07.2018 and judgment was reserved, the counsel for the petitioner on 01-10-2018 on instructions made submission during mentioning hour that the petitioner expired on 31.07.2018 and on her such submission the Court directed to list the matter on 10.08.2018 under the column "To be spoken to" and accordingly the matter was listed on said date.
4. On 10.08.2018, we heard the arguments advanced by the parties on the issue of the legal consequences on the death of the petitioner on 31.07.2018 after the judgment was reserved on 20.07.2018.
5. Order 22 Rule 6 CPC stipulates that If any of the parties to a suit dies after the hearing has been completed and before the judgment is pronounced, the suit would not abate. Accordingly, by order dated 10.08.2018, we closed the matter again for judgment.
6. The contention of the petitioner is that the impugned judgment dated 24.09.2016 of the learned Tribunal curtailed petitioner's personal liberty and it suffers from illegality and arbitrariness and as such, the same needs to be set aside and quashed.
7. This Court, while issuing notice to the respondents on 03.01.2017, in the interim observed that the petitioner shall not be taken into custody and shall not be deported from India. He was allowed to remain on bail to the satisfaction of the Superintendent of Police (B), Karbi Anglong.
8. Perused the records of the Tribunal.
9. It is seen that notice of said F.T. Case No. 135/2007 was issued by the learned Foreigners Tribunal, Diphu, Karbi Anglong to the petitioner, son of Lt. Sitaram Acharjee at Village-Doyangmukh under Kheroni Police Station in the district of Karbi Anglong and also to Smt. Subata Acharjee, Sri Ranjan Acharjee, Sri Swapan Acharjee, Sri Tapan Acharjee, Sri Bapan Acharjee and Smti. Anjali Acharjee on 25.04.2012, fixing 29.06.2012 for appearance and for filing written statement.
10. The petitioner appeared before the Tribunal on 29.06.2012 and sought for time and accordingly, 23.08.2012 was fixed for filing written statement. On 23.08.2012, the petitioner remained absent and his son Swapan Acharjee, filed his attendance and the Tribunal fixed the matter on 02.11.2012 for filing written statement. On the next date, i.e. on 02.11.2012, petitioner remained absent and on an application of his advocate stating that due to some old age ailment, the petitioner could not appear; the Tribunal fixed the matter on 05.01.2012 for written statement. Petitioner appeared before the Tribunal on 05.12.2012, but, he again prayed for time which was granted fixing 29.03.2013. Petitioner remained absent on that day and his son Swapan Acharjee again filed application seeking time, which was allowed fixing 29.06.2013 for written statement. On 29.06.2013, the petitioner did not appear before the Tribunal due to his illness and on a petition filed by his son Swapan Acharjee, the Tribunal fixed the matter again on 13.08.2014 for written statement and documents. The petitioner continued to remain absent in the matter before the Tribunal and occasionally filed applications either through his lawyer or his son seeking time. Due to such nonappearance, the said FT Case against the petitioner was decided ex-parte against him on two occasions i.e. on 10.02.2015 and 15.06.2016. However, on filling applications for setting aside such ex-parte orders, the learned Tribunal on both the
