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Mohammad Sher Khan Vs. Union of India (Uoi) Through the Home Secy. and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 70 of 1962
Judge
Reported inAIR1964All63
ActsCode of Civil Procedure (CPC) , 1908 - Sections 9 - Order 39, Rule 2
AppellantMohammad Sher Khan
RespondentUnion of India (Uoi) Through the Home Secy. and anr.
Advocates:G.H. Naqvi, Adv.
DispositionRevision allowed
Excerpt:
.....- application filed for temporary injunction dismissed - alleged that as suit for declaration as indian citizen was not maintainable application cannot be granted - central government to decide matter of citizenship - till that time application can be entertained by civil court - dismissal not justified. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or..........an order of the munsif refusing to grant a temporary injunction.2. the applicant had filed a civil suit for a declaration that he was an indian national and for a permanent injunction to restrain the respondents from deporting him out of india. the allegations in the plaint were that the applicant was a citizen of india at the time when the constitution came into force, that he subsequently went to pakistan and owing to certain circumstances had to return after obtaining a pakistani passport, that he had not lost his indian citizenship and that the respondents were now seeking to deport him out of india.after filing the suit he made an application before the munsif for a temporary injunction to restrain the respondents from deporting him out of india. though an ex parte order of.....
Judgment:
ORDER

G.C. Mathur, J.

1. This is an application in revision against an order of the Civil Judge Bahraich by which he has dismissed the appeal of the applicant against an order of the Munsif refusing to grant a temporary injunction.

2. The applicant had filed a civil suit for a declaration that he was an Indian National and for a permanent injunction to restrain the respondents from deporting him out of India. The allegations in the plaint were that the applicant was a citizen of India at the time when the Constitution came into force, that he subsequently went to Pakistan and owing to certain circumstances had to return after obtaining a Pakistani passport, that he had not lost his Indian citizenship and that the respondents were now seeking to deport him out of India.

After filing the suit he made an application before the Munsif for a temporary injunction to restrain the respondents from deporting him out of India. Though an ex parte order of injunction was granted it was vacated after the final hearing on the sole ground that the suit was not maintainable; the Civil Court had no jurisdiction to decide the question of citizenship and the jurisdiction to do so vested in the Central Government under Section 9 of the Citizenship Act. Against this order the applicant preferred an appeal before the Civil Judge. The learned Civil Judge has dismissed the appeal on the ground that prima facie the suit was not maintainable and as such no temporary injunction could be granted.

3. Learned counsel for the applicant submits that the courts below are wrong in their view that the suit was not maintainable and have accordingly failed to exercise jurisdiction vested in them in not deciding the application for temporary injunction on its merits. There is considerable force in this contention. The jurisdiction of the Court to entertain the suit has to be determined on the basis of the allegations contained in the plaint. Those allegations are that the applicant was an Indian citizen at the time of the coming into force of the constitution, that he still continues to be an Indian citizen In spite of his having obtained a Pakistani passport and that the respondents are illegally threatening to deport film. Though, undoubtedly the question whether the applicant has lost his Indian citizenship can be determined only by the Central Government and not by the civil court, yet until the determination is made by the Central Government that the applicant has lost his Indian citizenship he is entitled to say that he continues to be an Indian citizen and to seek the protection of the Court from being unlawfully deported.

In the case of Govt. of Andhra Pradesh v. Syed Mohd. Khan, AIR 1962 SC 1778, it has been laid down that there is no automatic cesser of citizenship by virtue of Section 9 of the Citizenship Act and unless actually a determination is made by the Central Government to the effect that the person has lost his citizenship he shall be deemed to continue to be a citizen. It is admitted in the present case that no such determination has yet been made by the Central Government. It accordingly follows that if the applicant was an Indian citizen on 26-1-1950 he continues to be an Indian citizen and he is entitled to maintain a suit before the Civil Court to protect him from being unlawfully deported. Of course, it will be open to the respondent to resist the suit on the ground that the applicant was not an Indian citizen on 26-1-50; if that be so, if such a defence is taken and the trial Court finds that the applicant was not an Indian citizen on 26-1-1950, no further question will arise and the suit will be dismissed but if it finds that the applicant was an Indian citizen on 26-1-1950, it may have to stay the suit pending decision by the Central Government under Section 9 of the Citizenship Act.

4. In my view the courts below were entirely wrong in holding that the suit filed by the applicant was not maintainable and on this erroneous view they have dismissed the application for temporary injunction without going into the merits thereof and have thus failed to exercise jurisdiction vested in them. I accordingly allow this application in revision, set aside the orders of the courts below and send the case back to the learned Munsif with the direction that he shall consider the application for temporary injunction on its merits. There will be no order as to costs. The stay order is vacated. The record will be sent down to the Munsifs court Immediately.


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