When an ex-parte order regarding citizenship status is challenged on grounds of improper service of summons, courts may exercise discretionary jurisdiction to set aside the order and grant an opportunity to defend, ensuring adherence to natural justice while strictly maintaining procedural timelines.

JUDGMENT :

S.K. Medhi, J.

Considering the facts and circumstances and as agreed to by the learned counsel for the parties, the instant petition is taken up for disposal at the motion stage.

2. The instant petition under Article 226 of the Constitution of India has been filed putting to challenge an order dated 09.08.2022 passed by the learned Foreigners Tribunal No.1, Barpeta in FT Case No. 2855/2018 [IM(D)T Ref. No.1167/2K] whereby the petitioner has been declared a foreigner post 1971. The primary ground of challenge is that the order in question has been passed ex-parte.

3. We have heard Shri P.A. Ahmed, learned counsel for the petitioner. We have also heard Shri J. Payeng, learned Standing Counsel, Home Department, Ms. S. Kataki, learned Standing Counsel, Election Commission of India, Ms. R.B. Bora, learned State Counsel and Shri. S. Kakati, learned CGC.

4. Shri Ahmed, the learned counsel for the petitioner has submitted that the impugned order has been passed in her absence and the petitioner was not aware of the proceeding. By drawing the attention of this Court to the impugned order, the learned counsel has submitted that though there has been certain observation that the petitioner did not appear in spite of service of notice, he has questioned the very fact that the notice was received by her. He has also submitted that though there is a report of the Process Server that the petitioner had received the notice, it is contended that the thumb impression is not of the petitioner who is otherwise able to write her name. He has also submitted that on 28.01.2026, after coming to know of the said order, a petition was filed under Order 9 Rule 13, r/w Section 151 of the CPC, praying for vacating the ex parte order which however was also dismissed vide the order dated 18.02.2026. The learned counsel has submitted that the impugned order be interfered with and the petitioner be given a fair opportunity to defend herself.

5. Shri Payeng, the learned Standing Counsel, Home Department has however justified the impugned opinion dated 09.08.2022 and also the subsequent order dated 28.01.2026. He has submitted that from a reading of the order dated 09.08.2022, it would be apparent that sufficient time was granted to the petitioner to appear and defend herself. In this connection, he has referred to the observations made by the learned Tribunal in paragraph 3 of the impugned order wherein all the 9 dates have been referred which were fixed and in those dates, the petitioner did not appear and file her written statement and only thereafter the impugned order has been passed. The learned Standing Counsel has also referred to the Foreigners (Tribunal) Order 1964, more particularly, Order 3C thereof which has prescribed a limitation of 30 days in filing an application for vacating ex parte order. He has submitted that the subsequent order of the learned Tribunal dated 18.02.2026 appears to be in sync with the requirement of law as laid down above.

6. The learned counsel for the other respondents have also supported the submissions of Shri Payeng, the learned Standing Counsel and has prayed for dismissal of the writ petition.

7. The primary contention advanced on behalf of the petitioner is that the summons were not received by her and the thumb impression appearing in the service report does not belong to her.

8. While the aforesaid aspect would be a contentious issue involving the factual dispute, we are of the considered opinion that instead of going to the said aspect, interest of justice would be served if an opportunity is granted to the petitioner to defend herself in the proceeding initiated a