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Tahira Khatoon Vs. District Magistrate, Shahjahanpur and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ Nos. 1345 and 1436 of 1957
Judge
Reported inAIR1961All137
ActsCitizenship Act, 1955 - Sections 9 and 9(2)
AppellantTahira Khatoon
RespondentDistrict Magistrate, Shahjahanpur and ors.
Appellant AdvocateYashoda Nandan, Adv.
Respondent AdvocateLakshmi Saran, Addl. Junior Standing Counsel
DispositionPetition allowed
Excerpt:
.....order - subsequent order by government declaring petitioner as a pakistan national - held, the decree passed was valid and enforceable and the government order could not alter or take away the rights of the parties. - - other means having failed the petitioners at last decided to obtain a temporary permit to come back to shahjehanpur, hoping that once they were back they would stay on. the judgments mentioned above as also the allegations in 'the affidavit' which have not been controverted clearly show that a civil court of competent jurisdiction has already passed a decree declaring the petitioners as the citizens of this country and that decree has been affirmed by the appellate court and has become final. 5. it is well established that a right to prosecute or defend a suit is a..........of the parties with regard to the suits pending on the date when the act came into force.learned counsel for the respondents have notbeen able to bring to my notice anything whichmay justify the inference that the jurisdiction ofthe civil courts had been barred even with respectto pending suits. thus there can be no escapefrom the conclusion that the suit filed by the petitioners was validly and rightly continued and thedecree passed in it is a valid and enforceable decree which has got to be respected and enforced.the respondents in my judgment by virtue of theorder of the central government mentioned abovehave not in any manner obtained a release fromthe operation of the decree and are bound by it.in that view of the matter the petitions are allowedwith costs.
Judgment:
ORDER

J. Sahai, J.

1. Fasiuddin, the petitioner in writ petition No. 1436 of 1957 is the husband of Smt. Tahira Khatoon, the petitioner in writ No. 1435 of 1957. Both the petitioners claim that they are citizens of India. Before 1950 they used to live in the city of Shahjehanpur. In 1950 serious communal riots took place in Shahjahanpur district in which the Muslim population of the District mainly suffered and the petitioners alleged that they left Shahjehanpur for Pakistan only in order to escape the communal frenzy and with no intention to settle down in Pakistan and always intending to come back to Shahjehanpur.

After the communal riots came to an end and conditions became normal the petitioners wanted to return back to India. Other means having failed the petitioners at last decided to obtain a temporary permit to come back to Shahjehanpur, hoping that once they were back they would stay on. Consequently they obtained a temporary permit and returned back to India in September, 1953. The period of the temporary visas was to expire in August: 1954. The district authorities at that time threatened to deport the petitioner to Pakistan. The petitioners, therefore, filed a writ petition in this Court That petition was admitted. It came up for hearing before Hon'ble Gurtu J., who on 11-2-1955 passed the following order:-

'Upon the undertaking given by the learned counsel for the respondent that the applicants will not be prosecuted or deported for a period of four months and the applicants being desirous of filing a suit to establish their nationality, and as the applicants through their counsel have stated that they do not press this application, it is accordingly dismissed for want of prosecution, without any order-as to costs'.

Thereafter the petitioners filed suit No. 54/55, in the court of the learned Additional Munsit, Shahjehanpur, impleading the Union of India, the State of Uttar Pradesh and the District Magistrate as defendants. The relief claimed in that suit was for the grant of a declaration that the petitioners were-citizens of India. That suit was decreed on 27-4-56. All the three defendants mentioned above filed an, appeal in the court of the District Judge, Shahjehanpur, which was dismissed on 13th of September, 1958. On 29th May, 1957, the petitioners were served with two separate notices, both dated 28th May, 1957, asking each of them to leave India within a period of thirty days from the date of the receipt of the notice and informing them that if they do not leave India within the period of thirty days they would be prosecuted under Section 14 of the Foreigners' Act.

2. On these facts the petitioners have prayed that the notices dated the 28th May, 1957, be quashed and a writ of mandamus be issued commanding the respondents to refrain from taking any action against the petitioners in pursuance of the notices dated 28th May, 1957.

3. Counter and rejoinder affidavits to the same effect have been filed in both the cases. The main allegations made in the counter affidavits are, firstly, that the petitioners are Pakistani nationals, having migrated there in 1948 and, secondly, that the Government of India had issued orders under Section 9(2) of the Citizenship Act declaring on 11-4-57 that the petitioners have voluntarily acquired citizenship of Pakistan. The said order runs as follows :-

'Whereas it has come to the notice of the Central Government that Sri Fasiuddin, son of Sri Aminuddin r/o Mohalla Jhandakalan, Shahjehanpur and his wife Smt. Tahira Khatoon have claimed) Indian Citizenship, notwithstanding their having obtained Pakistani Passports and short term visas, for their entry into India from Pakistan; now,, therefore the Central Government acting under 'Section 9(2) of the Citizenship Rules, 1956 and giving due regard to the principles of evidence contained in schedule to the aforesaid rules, hereby determinethat the said Sri Fasiuddin and his wife Smt. Tahira Khatoon have voluntarily acquired the citizenship of Pakistan.

Sd./-

Fateh Singh

Deputy Secretary

to Government of India'.

A copy of the judgment of the learned Munsif decreeing the petitioners' suit as also of the learned Civil Judge dismissing the appeal filed by the Union of India, the State Government and the District Magistrate has been filed in the case. The judgments mentioned above as also the allegations in 'the affidavit' which have not been controverted clearly show that a Civil Court of competent jurisdiction has already passed a decree declaring the petitioners as the citizens of this country and that decree has been affirmed by the appellate court and has become final. Had it not been for the order passed by the Government of India on 11-4-1957 there would have be(tm) plain sailing for the petitioners and there could have been no difficulty in these writ petitions being allowed. The only ground on which these writ petitions are being opposed on behalf of the respondents is that the order of the Government of India supersedes the decree of the civil court and is conclusive to show that the petitioners are not Indian nationals.

4. It has been contended that the Indian Citizenship Act (hereinafter called the Act) is a complete Code in itself which governs and regulates all matters relating to the rights of citizenship and the jurisdiction of the law courts is completely' ousted from deciding those questions. The argument is] that under Section 9 read with Rule 30 of the Act the 'Central Government alone can determine or declare whether a person is or is not an Indian national. Assuming that that is the effect of the Act and of Section 9 of it the question still remains whether the decree that has been passed in the present case stands superseded by the order passed by the Central Government under Section 9 of the Act already quoted above.

The Act came into force on 30-12-1955. The Rules framed thereunder (hereinafter called the Rules) came into force on 7-7-1956. The learned Munsif passed the decree in favour of the petitioners on 27-11-1956 and the appeal of the respondents was dismissed by the learned Civil Judge on 13-9-1958 It is the admitted case of the parties that on the date when the suit of the petitioners was filed, neither the Act nor the Rules had either been passed or had come into force. It is also admitted that on that date there was nothing in any law which barred the jurisdiction of the learned 'Munsif to give the petitioners the declaration that they were Indian nationals and to grant to them the relief which they had prayed.

However, before the decree was actually passed 'by the learned Munsif both the Act and the Rules had come into force. It is clear that no objection was taken, on behalf of the respondents who were parties to the suit before the learned Munsif atthe trial Or even before the learned Civil Judgein appeal that because of the provisions of the Actand especially Section 9 of it, the jurisdiction of thecivil courts to decide the suit had been barred. On the other hand the respondents continued acquiescing in the jurisdiction of the civil counts and both the patties to the suit and the courts mentioned above proceeded on the assumption that they had complete jurisdiction to decide the matter.

It is also admitted by the learned counsel for the State that no appeal against the decree of the learned Civil Judge was filed in this Court and consequently the decree passed by the learned Munsif as affirmed by the learned Civil Judge became final. Admittedly no steps have been taken to get that decree vacated or set aside. The question for consideration is that even if it be assumed that the Act and especially Section 9 of it barred the jurisdiction of the civil courts from giving the declaration which has been given to the petitioners, the suit which had been filed could be dismissed on that ground and the decree which was passed is a nullity.

5. It is well established that a right to prosecute or defend a suit is a vested right and cannot be taken away except by a clear indication of legislative intention to that effect In the case of Venugopal Reddiar v. Krishnaswami Reddiar , their Lordships of the Federal Court observed as follows:

'The true position, as we have already stated is not whether there is an express provision permitting the continuance of pending proceedings, but whether there is any clear indication against the continuance of pending proceedings, to their normal termination.'

'In Vedavalli Narasiah v. Mangamma, ILR 27 Mad 538, a Division Bench of the Madras High Court held as follows:

'It is a general rule that when the legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms being applied to pending actions, do not affect them.'

In the case of Subbaraya Mudaliar v. Rakki, ILR, 32 Mad 140, the same view was taken by a Division Bench of the Madras High Court. A perusal of the Act reveals that there is no provision in it which has the effect of taking away or altering the rights of the parties with regard to the suits pending on the date when the Act came into force.

Learned counsel for the respondents have notbeen able to bring to my notice anything whichmay justify the inference that the jurisdiction ofthe civil courts had been barred even with respectto pending suits. Thus there can be no escapefrom the conclusion that the suit filed by the petitioners was validly and rightly continued and thedecree passed in it is a valid and enforceable decree which has got to be respected and enforced.The respondents in my judgment by virtue of theorder of the Central Government mentioned abovehave not in any manner obtained a release fromthe operation of the decree and are bound by it.In that view of the matter the petitions are allowedwith costs.


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