B.N. Sarma, J.
1. This is a second appeal by the defendants who lost in both the Courts below.
2. The respondent Abdul Rashid filed the suit against the appellants namely (1) the Superintendent of Police, Dist. Cachar (2) the Deputy Commissioner, Cachar and (3) Secretary to the Government of India, Ministry of Home Affairs (appellants 1 to 3 herein) for a declaration that he is an Indian citizen and for a perpetual injunction restraining them and their agents from deporting him from India and also from removing him from the post of Jail Warder. The facts necessary for the purpose of disposal of this appeal may be stated in brief as below.
3. On 8-5-65 the appellant No. 1 served an order under Section 3 of the Foreigners Act on the respondent, his wife and six daughters asking them to quit India on the allegation that they are Pakistani nationals. Thereafter, on the representation of the respondent, the matter was referred to the Foreigners Tribunal, constituted under the Foreigners (Tribunal) Order 1964, for opinion as to whether the respondent and his wife and daughters are foreigners within the meaning of the Foreigners Act, 1946 (hereinafter referred to as the Act). The Tribunal gave its opinion to the effect that the respondent is a Pakistani national although his wife and daughters were held to be Indian nationals. The respondent, thereafter, filed the suit for the reliefs as mentioned above, after service of notices on the appellants, as required under Section 80 of the C. P. C. His case was that he is a citizen of India by birth and has got his permanent residence, which is his ancestral home, within Silchar town in the district of Cachar and that at no point of time he lost his citizenship of India.
4. The appellants contested the suit by filing two separate written statements -- one purported to be on behalf of the State of Assam and others, signed and verified by the Deputy Commissioner, Cachar, and the other purported to be on behalf of the Union of India, signed and verified by the Under Secretary to the Government of India, Ministry of Home Affairs. The suit was resisted on various grounds both on facts and law. On facts their case was that the respondent was serving as a Constable No. 299 in the police department in Cachar. Under Assam Government Order No. SS. 11/94 dated 6th December, 1947 conveyed under I. G. P.'s. Memo No. 25493-506/ IV-A/62-47, dated 23rd December, 1947, he was released from service with effect from 31st December, 1947 vide Cachar District Order No. 2255 dated 31st December, 1947, as he opted to serve in Pakistan, but in the year 1949 he left his service in East Pakistan and came to India and since then he has been residing illegally at Tikarbasti in Silchar town. It was further alleged that in the year 1952 the respondent by concealing his police service as constable in Cachar and his service in Pakistan, enlisted himself as Jail Warder in the District Jail, Silchar.
5. Upon the pleadings the following issues were framed.
(1) Whether there is any cause of action?
(2) Whether the suit is maintainable in its present form?
(3) Whether the suit is barred by the law of limitation?
(4) Whether the suit is barred by the rule of estoppel, waiver and acquiescence?
(5) Whether the suit suffers from defect of parties?
(6) What relief, if any is the plaintiff entitled to?
(7) Whether the notice under Section 80 Code of Civil Procedure has been properly served?
(8) Whether the plaintiff is a citizen of India?
6. It may be mentioned here that the suit was once dismissed for default on 26-2-71 due to the absence of the plaintiff-respondent, under Order 9, R 8 of the C. P. C. The respondent, instead of applying under Order 9, Rule 9 of the C. P. C. for setting aside the order of dismissal filed an appeal before the Assistant District Judge against the order. The learned Assistant District Judge by his order dated 29-8-71 allowed the appeal and remanded the case to the trial Court with the direction that the Court below should grant opportunities to the respondent to adduce evidence to prove that he was absent in Court on the date of hearing due to bona fide mistake of fact, as alleged by him, with the observation that if the Court below feels convinced on this point, the suit should be heard on merit. Thereafter the trial Court on hearing both the parties, decreed the suit, by its judgment dated 31-3-75 and this decree was affirmed by the Assistant District Judge, Cachar in Title Appeal No. 59 of 1975 by his judgment dated 31-3-76. Hence the defendants have come up with the present second appeal.
7. Mr. D. K. Bhattacharjee, the learned counsel for the appellants has assailed the decree, appealed against, on various grounds before me. His first contention is that the appeal before the Assistant District Judge against the order of the Munisiff dismissing the suit for default was without jurisdiction and as such the subsequent proceedings in the suit were without jurisdiction and non est in law and consequently the decree passed in the suit is a nullity.
8. Mr. P. Choudhuri. the learned counsel for the respondent vehemently resisted this contention. He took a preliminary objection that this point not having been taken in any of the Courts below cannot be allowed to be taken for the first time in second appeal. This being a question of law going to the root of the case, which can be disposed of on the materials already on record, I do not think the appellants can be debarred from taking this point. The preliminary objection of Mr. Choudhuri is overruled.
9. Mr. Choudhuri then submitted that the order of the Assistant District Judge remanding the case has become final and it cannot be re-opened now. Relying on the decision of the Supreme Court in Satyadhyan v. Smt. Deorjin Debi, AIR 1960 SC 941, Mr. Choudhuri submitted that the principle of res judicata applied also as between two stages of the same litigation, to this extent that a Court, whether the trial Court or a higher Court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceeding.
10. This contention is not well founded. To apply the principle of res judicata the earlier order must be passed by a Court of competent jurisdiction. If the Assistant District Judge had no jurisdiction to entertain the appeal, I do not think the principle or res judicata can be invoked. The above observation of the Supreme, Court relied on by Mr. Choudhuri is not applicable to the present case. On the other hand the decision of the Supreme Court in that case goes to show that such an order can be attacked in second appeal. In para 16 of the judgment the Court observed:
'It is clear, therefore, that an interlocutory order which had not been appealed from either because no appeal lay or even though an appeal lay no appeal was taken could be challenged in an appeal from the final decree or order. A special provision was made as regards orders of remand and that was to the effect that if an appeal lay and still the appeal was not taken the correctness of the order of remand could not later be challenged in an appeal from the final decision. If however an appeal did not lie from the order of remand, the correctness thereof could be challenged by an appeal from the final decision as in the case of other interlocutory orders.'
11. In the instant case, there is no dispute that the order of remand made by the Assistant District Judge was not appealable.
12. There is no provision in the Code of Civil Procedure for any appeal against the order of dismissal of a suit for default passed under Rule 8 of Order 9 of the C. P. C. The only remedies available for the plaintiff in such a case are (i) by way of an application under Rule 9 of Order 9 of the C. P. C. for setting aside the order of dismissal and (2) by an application for review. It is therefore evident that the Assistant District Judge has no jurisdiction to entertain any appeal against the order of dismissal for default and, consequently, the order passed by him remanding the case to the trial Court was without jurisdiction. In Rameshur Singh v. Sheodin Singh, (1890) ILR 12 All 510 which is a Full Bench decision, it was held that when a Court does something which by statute it is enacted shall not be done, the doing of the thing by the Court is ultra vires and illegal, and if ultra vires or illegal, it must follow that it was done without jurisdiction. It was further held in that case that where an order was passed without jurisdiction all the proceedings in the case subsequent to the illegal order of remand were ultra vires and must be set aside although the remand order had been followed by the taking of evidence by findings and by a decree. The same view was taken by the Allahabad High Court in Baijnath Singh v. Gajraj Singh, (1910) 6 Ind Cas 464. The facts of this case are almost similar to those of the present case. In that case also the suit was dismissed for default. The plaintiff applied for restoration of the suit, but that application was refused. The plaintiff then appealed to the District Judge and the District Judge allowed the appeal and remanded the case for trial on its merits. Thereafter the Assistant Collector proceeded with the suit and decreed the same in part. The defendant then appealed to the District Judge. It was pleaded before the District Judge that the order of the District Judge remanding the case was without jurisdiction and that the Court of first instance, therefore, could not have entertained the suit. This plea was overruled and the District Judge dismissed the appeal. The defendants then came in second appeal to the High Court and the same plea was advanced before the High Court. This plea was upheld by the single Judge who heard the appeal and the matter was then taken before a Division Bench in a Letters Patent Appeal. The order of the single Judge was upheld by the Division Bench with the following observation ;
'It appears to us that the provisions of Section 578 (present Section 99) clearly indicate that this Court can in second appeal enter into a question which goes direct to the jurisdiction of the court deciding the appeal. Section 591 (present Section 105) deals with orders which Court had jurisdiction to make but in the making of which the Court had committed an error or irregularity. An order passed by the District Judge remanding the case was an order passed without jurisdiction, and not merely an erroneous or defective order.'
13. Then relying on the Full Bench decision in Rameshur Singh v. Sheodin Singh (supra) the Division Bench upheld the decision of the learned single Judge that the order of the District Judge remanding the case was without jurisdiction and that the Court of first instance, therefore, could not have entertained the suit.
14. As the respondent, herein, did not file any application under Order 9 Rule 9 or any application under Order 47 Rule 1 of the C. P, C., which were the only remedies available to him for setting aside the order of dismissal of the suit for default, and as the remand order passed by the Assistant District Judge in that appeal was without jurisdiction, the order of the trial Court dated 26-2-71 dismissing the suit for default became final and the subsequent proceedings in the suit culminating in the decree appealed against were all without jurisdiction. That being so the decree appealed against must be set aside and it is not necessary to go into other contentions raised by Mr, Bhattacharjee before me.
15. In the result the decree appealed against is set aside. The order of the trial Court dated 26-2-71 dismissing the suit for default is restored. The appeal is allowed. In the circumstances of the case I make no order as to costs.