The judgment emphasizes the burden of proof under the Foreigners Act, 1946 and the limitations of a review petition to introduce new facts not part of previous pleadings.

JUDGMENT

K.R. Surana, J. - Heard Mr. M. Khan, the learned counsel for the petitioner, Mr. U.K. Nair, learned senior counsel, appearing as Senior Standing Counsel for the respondents No. 2 to 5.

2. The petitioner was the proceedee before the Member, Foreigners Tribunal No.5, Morigaon in Case No. F.T.(D) 300/2015. The said learned Tribunal by its opinion dated 04.11.2016, answered the reference made by the S.P. (Border), Morigaon in the affirmative by holding that the petitioner was a foreigner who came to Assam on or after 25.03.1971.

3. The said opinion was challenged by the petitioner before this Court by filing a writ petition under Article 226 of the Constitution of India , which was registered as W.P.(C) No. 7217/2016. Upon hearing the learned counsel for the parties and by discussing the pleadings and evidence on record in extensio, it was held that the petitioner had failed to discharge her burden under Section 9 of the Foreigners Act, 1946 to prove that she was not a foreigner but a citizen of India and consequently, the writ petition was dismissed by the Division Bench of this Court by judgment and order dated 05.04.2018.

4. By this petition under Order XLVII Rule 1 CPC , the petitioner has called upon the Court to review the said judgment and order dated 05.04.2018. The learned counsel for the petitioner has referred to the statements made in this review petition. It is submitted that the petitioner had assailed the said order of this Court before the Supreme Court of India, which was registered as SLP (Civil) Diary No(s). 32844/2019. Thereafter, this review petition has been filed as per liberty granted by the Supreme Court of India by order dated 18.12.2019 granted in the said Special Leave Petition.

5. It is submitted that all the documents exhibited by the petitioner duly established that the petitioner is the daughter of Late Abdul Mannan, whose name appeared in the voter list of 1965 and subsequent voter lists till he died in the year 2007. It is submitted that although the petitioner had handed over all the documents to her counsel and those documents were also exhibited in her evidence, but due to fault of the learned counsel for the petitioner, no steps were taken to summon and examine official witnesses like the Gaonbura and Gaon Panchayat Secretary who had issued certificates in favour of the petitioner. It is submitted that the petitioner is an illiterate lady and she had entered into marriage before attaining the age of majority, as such, she has no document other than the link certificates the Gaonbura and Gaon Panchayat Secretary, having her name with her father. It is also submitted that the other DWs examined by the petitioner had proved her linkage with her father. However, by rejecting the defence of the petitioner, the reference was answered by opinion dated 30.09.2016.

6. It is submitted that against the said opinion, the petitioner had filed a review petition before the learned Tribunal, which was registered as Misc. Case No. 34/2016, and thereby a prayer was made to allow the petitioner to summon the Gaonbura and Gaon Panchayat Secretary. However, the said prayer made in Misc. Case No. 34/2018 was rejected by order dated 04.11.2016 and the learned Tribunal had upheld its opinion dated 30.09.2016. Thereafter, the petitioner had unsuccessfully challenged the said opinion before this Court and W.P.(C) No. 7217/16 was dismissed by this Court.

7. It is submitted that this Court had failed to consider the documents exhibited by the petitioner without considering the stand of the petitioner in her writ petition before this Court to the effect that she was married to one Ajijul Haque of Madarguri before attaining the age of majority as already mentioned herein before, but they had changed their place of residence to village- Bhajaikhaiti and then to Village- Borthal Kacharigaon. It is also submitted that the evidence of her own brother, i.e. DW-2 and DW-3, who was her own son was discarded by this Court