Unexplained Delay and Lack of Due Diligence BARS Review Under Article 226/Section 114 CPC: Gauhati High Court - 2026-06-09

Unexplained Delay and Lack of Due Diligence BARS Review: Gauhati High Court Rejects Citizenship Plea

The Gauhati High Court has firmly declined to entertain a review petition filed by Musstt. Monowara Khatun, reaffirming that the judiciary’s review jurisdiction is not a substitute for an appeal, particularly when a petitioner fails to explain an inordinate delay in contesting an ex parte citizenship status determination.

A division bench comprising Justice Kalyan Rai Surana and Justice Anjan Moni Kalita dismissed the petition, emphasizing that legal remedies cannot be an endless exercise for litigants who neglect to exercise due diligence.

The Backdrop: A Four-Year Silence

The petitioner, Musstt. Monowara Khatun, was declared a foreigner who had illegally entered India after March 25, 1971, by a Foreigners’ Tribunal in Jorhat on March 30, 2021. The ex parte opinion followed her repeated failure to appear before the Tribunal despite numerous notices issued between February 2020 and March 2021.

When the petitioner finally moved the High Court in 2025, her writ petition was dismissed on February 9, 2026, due to an unexplained delay of over four years and seven months. The present review petition sought to challenge that dismissal, primarily on the ground that the petitioner was misled by intermediaries and suffered from the negligence of her engaged counsel.

Arguments: Negligence vs. Procedural Finality

Ms. G. Borah, counsel for the petitioner, contended that the petitioner was unaware of the case status due to the unprofessional conduct of intermediaries and her counsel. She argued that the petitioner held sufficient documentation—including voter lists dating back to 1970 and a PAN card—to prove her citizenship, and that the original SP enquiry was mechanically conducted without a proper questionnaire.

Conversely, the respondents, led by standing counsel Mr. J. Payeng, argued that the review petition was an attempt to file an "appeal in disguise." They asserted that the petitioner had ample opportunity to participate in the proceedings, and that the Foreigners (Tribunals) Order, 1964, strictly mandates that cases be determined within a specified timeframe, precluding endless re-openings of settled matters.

Court’s Legal Analysis: The Limits of Review Power

In a detailed order, the Court underscored the distinction between "re-hearing" a matter and exercising "review" jurisdiction. Drawing from the Supreme Court’s decision in Malishwari v. K. Dutt Saguna & Anr. , the bench clarified that:

1. Limited Scope: Review proceedings are strictly confined to Order XLVII Rule 1 of the CPC and cannot be used to correct every perceived judicial error.
2. No "Appeal in Disguise": The court cannot rehear a matter or substitute its own view to rectify a party’s past negligence.
3. Due Diligence Required: Even if COVID-19 impacted judicial proceedings, the petitioner failed to offer any justification for her inaction in the three and a half years following the end of pandemic-related restrictions.

Key Observations

The High Court’s ruling highlighted the necessity of finality in litigation:

> "It is a settled law that in a writ petition under certiorari, this Court exercises limited jurisdiction. It does not review or reweigh the evidence upon which the determination of the inferior court or tribunal purports to be based."

> "Under such circumstances, the default on the part of the petitioner in taking steps in proceedings or to get the expert opinion vacated, demonstrates the lack of due diligence on the part of the petitioner to contest the proceeding where her status as a citizen of India was questioned."

> "The power of review can be exercised for correction of a mistake, but not to substitute a view. Such power can be exercised only within the limits specified in the statute governing the exercise of such power."

Practical Implications

The judgment serves as a stern reminder that the High Court’s extraordinary jurisdiction under Article 226 and its review powers under the CPC are discretionary and equitable. For litigants, the ruling clarifies that shifting the blame to legal counsel or intermediaries—without evidence of active, diligent follow-up—is insufficient to overcome a substantial delay in challenging citizenship orders. The case concludes with the affirmation that Courts have no duty to provide endless opportunities when a citizen fails to participate in the initial adjudication process.