State of M. P. vs Mohammad Hanif - 1982 Supreme(MP) 694

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates Appeared:
For the Applicant :Government Advocate
For the Non-Applicant : M.A. Khan

Headnote:(1) Civil Procedure Code, 1908 – O. 39, R. 1 and 2 – temporary injunction under – plaintiff when entitled for – case requiring evidence – purpose of suit likely to be frustrated – injunction may be granted.
       (2) Limitation Act, 1963 – S. 5 – condonation of delay – revision filed beyond time by Stale – each day not explained – affidavit of concerned clerk not filed – no case for condonation of delay made out.
        Short Note
       1. Frets which are not in dispute so far as relevant for the decision of this case in brief are that the non – applicant No. 1 on the basis of a temporary Pakistani passport came to India in Feb. 1980, the duration of which was to expire on 11 – 5 – 1980. Earlier in 1975 non – applicant No.1 was also reported to Pakistan on the ground that he was a Pakistani national. The plaintiff non – applicant No.1, filed the present suit on an allegation that he is a citizen of India, that he was illegally deported to Pakistan in 1975 and he is now back in India, he filed the present suit for a declaration and injunction that he is a citizen of India, he cannot compulsorily reported to Pakistan. In that suit filed on 7 – 5 – 1980, four days before the expiry of the visa permit, he also flied an application under Order 39, rules 1 and 2 C.P.C. with a prayer that the defendants be restrained till the decision of the case from forcibly deporting him out of India, which relief was not granted by the trial Court.
       2. The defendant in their reply contested the plaintiff's claim and urged that the plaintiff is a Pakistani national and being a foreigner and not an Indian national, the visa issued to him was for a short duration, the period of which was to expire on 11 – 5 – 1980, clearly indicates that he is not an Indian citizen and consequently he has no right to remain in India including Indore after the expiry of 11 – 5 – 1980.
       3. The learned lower appellate Court by the impugned order relying upon the decisions reported in AIR 1961 SC page 1417, AIR 1962 SC, Page 70 and AIR 1975 Bombay, Page 176, felt that in view of the controversy raised by the plaintiff, the matter requires evidence and as such the plaintiff is entitled to the relief of temporary injunction till the decision of the suit.
       4. Admittedly, this revision filed was barred by five days. The applicant have, therefore, filed an application under section 5 of Limitation Act for condoning the delay, which is supported by in affidavit filed by Ashok Patel, the officer in – charge of the case. The reason assigned in the said application was that the letter of the proposal for sanction of revision sent by the Collector, Indore, and addressed to the Secretary, Home Department Police sent on 7 – 5 – 1981 was routed through several branches of the Police Department, that this letter after passing through all the branches reached the passport branch on 26th May, 1981, where also it has was delayed further because the concerned clerk was on sick leave and there was no other senior clerk or officer who could deal with the file, that the proposal for filing this revision was sanctioned by the Secretary on 2 – 7 – 1981, which was approved by the law and legislative Department on 8 – 7 – 1981. The reason assigned in this application for the delay was opposed on behalf of the non – applicant No. 1 in this reply filed thereto.
       Held: This revision was admitted subject to the question of limitation. In my opinion, the reason assigned does not appear to be convincing and quite satisfactory as the applicant has failed to explain each day's delay, which was necessary. Besides, neither the name of the concerned cleark not that of the official has been mentioned therein.
       5. It is difficult to believe that no other senior clerk or officer was available who could deal with the files which according to the applicant was so important especially when it was known that limitation was expiring on 3 – 7 – 1981. From the said application it is apparent that even the sanction was given on 8 – 7 – 1981 when the period for filing the revision had already expired. Besides the affidavit of the concerned clerk has also not been filed and the affidavit filed by Shri Ashok Patel also does not explain each day's delay. In the circumstances. I am of the opinion, that it is not a fit case in which delay deserves to be condoned as it is expected of Government Officials .to take proper steps before the expiry of the period of limitation.
       6. That apart, so far as the merits of the revision petition are concerned I may only state that though the learned counsel for the applicant contended that prima facie the pass – port clearly indicates that the non – applicant is a Pakistani national, that he was admittedly deported from India to Pakistan in 1975, that he did not produce before the trial Court any material to show that he was an Indian national and citizen in 1950 when the Constitution came into force nor he filed the affidavits of any other person which he for the first time filed before the lower appellate Court, may have great force but in view of the decisions referred to above coupled with the fact that the learned lower appellate Court had the jurisdiction to decide the matter. In my opinion, even though as agreed, that the decision is wrong, still that by itself is not a valid ground to interfere therewith in exercise of the revisional powers, though it is no doubt true that it is for the non – applicant No. 1 to approach and prove before the Central Government that he is a Citizen of India in accordance with the provisions of the Citizenship Act. The learned counsel for the non applicant No. 1 vehemently urged that the non – applicant No. 1 is an Indian National and if the Government suspects that he is Pakistani spy or his activities are suspicious, the Government can put him in jail where from also he can establish his case but if he is deported out of India, the purpose of the Government could be served and his suit would become infructuous. AIR 1961 SC 1417, AIR 1962 SC 70 and AIR 1975 Bom. 176 referred to. Revision dismissed.