B.K. Mehta, J.
1. The following three substantial questions of law as formulated by this Court arise in this Second Appeal:
(1) Whether on the facts and in the circumstances of the case, the suit instituted by the respondent was liable to be dismissed, so far as the claim made by the amended plaint was concerned, for want of notice under Section 80 of the Code of Civil Procedure?
(2) Whether the lower Appellate Court was right in law in holding that the order dated August 28, 1968, Ex. 77, made by and in the name of the President by the Under Secretary to the Government of India, was not shown to have been made on valid authority?
(3) Whether on the facts and in the circumstances of the case, the lower Appellate Court was right in law in holding that the order, Ex. 77, was void being in violation of the rules of natural justice?
2. In order to appreciate the issues raised in the above questions, it would be profitable to advert shortly to a few facts which have ultimately resulted in this second appeal.
3. The respondent-plaintiff claims that he is an Indian citizen, and was born in Amritsar where his parents had come and settled down from Afghanistan. They were also, according to the plaintiff, Indian citizens. On attaining the age of 12 years, the plaintiff moved to Surat where he settled down, and was carrying on business in cloth as a hawker. The plaintiff asserted that he never migrated to Pakistan with intention to stay there permanently, nor had acquired Pakistan citizenship. He was in India, according to the plaintiff, on the Independence Day when the Constitution was enacted. As a matter of fact, his case is that, he had never gone to Pakistan at all. However, to his surprise, the Government of India called upon him by its notice of March 5, 1963 to show cause, under Section 9 of the Citizenship Act, why the Central Government should not determine the national status of the plaintiff, as he had acquired citizenship of Pakistan since he had obtained Pakistan passport No. 381759 on December 9.1955, and came to India on a short-term Visa No. 79515 of December 20, 1955, and to submit material, if any, in support of his claim that he has not voluntarily acquired the citizenship of India.
4. The plaintiff objected to the Central Government determining his status under Section 9 of the Citizenship Act since he was acquitted by the Additional Sessions Judge, Surat in Criminal Appeal No. 33 of 1958 filed by the State Government under Section 14 of the Foreigners' Act. The plaintiff therefore, apprehended that he would be deported from India physically. The plaintiff, therefore, served upon the Union Government the statutory notice as required under Section 80 of the Civil Procedure Code asking the Central Government to desist from taking any action in pursuance of the said notice and determining his status and/or physically deporting him from India. Since the Union Government failed to comply with the demand made in the notice, the plaintiff filed the suit on November 23, 1963 seeking the reliefs, namely, declaration that he is a citizen of India, and that neither the Union Government nor the State Government was legally competent to deport the plaintiff, and for permanent injunction restraining the Union Government as well as the State Government, their officers, agents and servants, from deporting the plaintiff out of India, and also restraining the Union Government from determining the status of the plaintiff under Section 9(2) of the Citizenship Act.
5. It appears that on behalf of defendants Nos. 1 and 2, written statement was filed, signed and verified by the Under Secretary to the Government of India in Ministry of Home Affairs at New Delhi, resisting the suit of the plaintiff contending, inter alia, that the plaintiff was not a citizen of India since he has migrated to Pakistan inasmuch as he obtained passport of Pakistan and came to India on a short-term Visa in form 'C', and that the Court had no jurisdiction to determine the status regarding the nationality of a person since the determination of the question was within the exclusive competence of the Union Government under Section 9(2) of the Citizenship Act. However, the learned Civil Judge by his order of September 12, 1964, on an application by the Advocates of the parties, ordered the stay of the suit till the determination of the status by the Central Government under Section 9(7) of the Citizenship Act. The suit laid on the dormant file as the question of status was under investigation and determination of the Central Government. By an order of August 28, 1968, the Government of India in Ministry of Home Affairs finally determined the status of the plaintiff, and it was held that the plaintiff had voluntarily acquired the citizenship of Pakistan after January 26, 1947 and before December 19,1955. The plaintiff, therefore, sought, consequential amendment in the plaint by seeking to insert his challenge to this order of the Government of India as being without jurisdiction, void and ineffective inasmuch as the Government had determined the question without giving opportunity of personal hearing to the plaintiff, and also sought the relief accordingly.
6. On these pleadings, the learned Civil Judge raised necessary issues, and after considering the evidence, oral as well as documentary, adduced by the parties, held that the Government had no jurisdiction to determine the status under Section 9(2) of the Citizenship Act, 1955. However, in the opinion of the learned Civil Judge, the plaintiff had failed to prove his citizenship of India. He, therefore, by his order of September 27, 1974, declared that the order of the Government of India determining the status of the plaintiff was unauthorised, illegal and against the principles of natural justice and, therefore, restrained the Union Government as well as State Government from deporting the plaintiff from India till a legal order is made by the Union Government under Section 9(2) of the Citizenship Act.
7. The State Government, therefore, carried the matter in appeal before the District Court at Surat by its Regular Civil Appeal No. 121 of 1974. The plaintiff also, being aggrieved by the said order in so far as the declaration as to the Indian citizenship was not granted to him, filed cross-objections. The learned Assistant Judge, Surat, agreed with the learned Civil Judge that the order of the Central Government determining the status of the plaintiff was not legal since no opportunity was afforded to the plaintiff of personal hearing before determining the status and, therefore, the said order violated the principles of natural justice. The learned Assistant Judge, therefore, by his order of February 16, 1977 dismissed the appeal and allowed the cross-objections, as in his opinion the declaration ought to have followed the decision holding the order of the Central Government to be bad in law, void and ineffective. This order of the learned Assistant Judge is the subject matter of this Second Appeal before me in which the aforesaid questions have been raised by this Court.
8. On behalf of the Union Government as well as State Government, it has been contended that the suit seeking declaration that the order of the Central Government determining the status of the plaintiff under Section 9(3) of the Citizenship Act is bad in law, void and ineffective, is not maintainable since the prescribed notice under Section 80 of the Civil Procedure Code has not been served on the Union or the State Government before the plaint was amended seeking further declaration about the illegality of the order of Union Government under Section 92. It has been strenuously contended by the learned Assistant Government Pleader that the requirement of the notice under Section 80 of the Civil Procedure Code is mandatory and inasmuch as the plaintiff is now seeking relief in respect of the order of the Central Government under Section 9(2) of the Citizenship Act, the cause of action is entirely different because the order has been assailed as being made in violation of the principles of natural justice and, therefore, the notice which was served on the Union and the State Government before filing the present suit before amendment did not contain this particular about the cause of action which has now arisen as a result of the declaration made by the Central Government under Section 9(2). It was urged that the cause of action, after the amendment, is totally different in a such as different evidence would be required to be adduced by the plaintiff to satisfy the Court that the order made by the Central Government under Section 9(2) is without jurisdiction and null and void, because, no opportunity was given to the plaintiff. In support of the contention, the learned Assistant Government Pleader has placed reliance on a number of authorities of different High Courts as well the Supreme Court.
9. I am of the opinion that the contention of the learned Assistant Government Pleader is not well founded obviously for the following reasons:
It is axiomatic to say that the objects of the notice under Section 80 of the Civil Procedure Code are to enable the Government or public servant concerned to reconsider its or his stand in the matter and to amend or settle the claim out of the Court if the stand is not well founded. It is also established beyond doubt that the provision contained in Section 80 of the Civil Procedure Code is mandatory and the failure to comply with the requirement of the statute would necessarily be fatal to the suit. It is equally established that the notices under sec 80 of the Code of Civil Procedure are not to be literally construed nor the Court should approach in a pedantic manner for the purpose of finding out whether the notice is not according to the requirement of Section 80 and consequently the suit is premature. In order to find out whether the requirement of the statute is complied with or not, the Court should take into account (I) whether the name, description and residence of the plaintiff are correctly given; (2) whether the cause of action and reliefs are set out in necessary particulars; (3) whether the notice has been delivered or left at the office of the appropriate authority, and (4) whether the suit is instituted after the expiry of the prescribed period of two months (vide Beohar Rajendra Sinha and Ors. v. Sta : 3SCR955 le of M.P. and Ors. The question which arises in the present appeal is, whether the plaintiff was under an obligation to serve a fresh notice under Section 80 of the Civil Procedure Code before he could amend the plaint and pray for the relief of declaration that the order of the Union Government under Section 9(2) of the Citizenship Act was bad in law and void and ineffective. In Amar Nath Dogra v. Union of India : 1SCR657 where the plaintiff was claiming damages on several counts for the breach of the contract against the Government arising out of a single contract; a contention was raised on behalf of the Government that since the authority on whom the notice of claim was served was not informed about the claim of the party is in respect of each of the several heads, the notice was not according to the mandate of the statute and, therefore, the suit was bad for want of proper notice. In that context, the Supreme Court laid down the broad tests to determine whether the plaint was according to the notice or not. The Supreme Court held as under:It is no doubt true that a notice under Section 80 is not a pleading and need not be a copy of the plaint and that no particular or technical form is prescribed for such a notice, still having regard to the object for which Section 80 has been enacted we consider that the details which it contains should be sufficient to inform the party on whom it is served of the nature and basis of the claim and the relief sought; Admitting that a notice has to be interpreted not pedantically but in the light of common sense without one being hypercritical about the language still the question to be considered is whether in the notice there is substantial information conveyed on the basis of which the recipient of the notice could consider the claim of the would-be plaintiff and avert the suit.
10. The Supreme Court, after analysing the allegations and reliefs in the this plaint as well as in the notice held further:
(1) that there was a complete variance between the claim made in the notice and the claim in the plaint;.
(2) that there was no possibility of establishing any relationship between the claim made in the suit and that in the notice which preceded it:
(3) that the amount claimed under each of the several heads of items claimed was not stated in the notice and therefore it would not have been possible for the Government to have considered whether it was worth their while to settle with the plaintiff by agreeing to pay the sum demanded;
(4) x x x x x(5) that the entire basis or rather the cause of action was changed in the plaint to the one of the breach of the entire contract and the items set out in the plaint were the heads of claim under which the damages were computed while the cause of action in the notice was on the basis of seeking relief for breaches of stipulations in a subsisting contract;
In the circumstances, the Supreme Court held the notice to be not according to the requirement of Section 80 and the suit was held to be bad on that count.
11. In Lady Dinbai Dinshaw Petit and Ors. v. The Dominion of India and Anr. : AIR1951Bom72 a somewhat similar situation arose where the order of requisition of the premises under the Defence of India Rules challenged on the ground that the order was not for the purposes required under the Rules and it was not bona fide. The plaintiffs relied on the cause of action in the plaint for purposes or the relief prayed about the invalidity of the order as it was made for a collateral purpose and was also fide. The plaintiffs sought amendment in the suit seeking to introduce an additional ground in support of their contention that the order was made for the purpose other than what is required under the Act and it was not made bona fide In that context, an objection was raised on behalf of the Government that the plaintiffs were not entitled to seek the relief as they prayed for in the amended plaint. Mr. Seervai appearing on behalf of the Government sought reliance on one Privy Council decision in Mohammad Khalil Khan v. Mahbud Ali for purposes of urging that if the evidence to support the two claims is different, then the causes of action are also different, and therefore the cause of action as urged after the amendment was not set out with necessary particulars in the statutory notice served, before filing the plaint, the suit was bad for want of notice. Chagla C.J. as he then was, speaking for the Court while rejecting this contention observed as under:
Mr. Seervai contends that if the amendment was allowed, then the plaintiffs would have to lead different evidence in order to support the allegations contained in the amendment. In my opinion, evidence is only different in the sense used by the P. C. if evidence is of a different nature. But the P.C. must not be understood to have said that merely because additional evidence or supplementary evidence to be led by reason of an amendment in the plaint, the amendment constitutes a new or fresh cause of action. It is undoubtedly true that whenever the Ct. allows an amendment, ordinarily the plaintiff has got to lead further evidence in support of the averments contained in the amendment. If the principle laid down by the P.C. were to be understood in the manner in which Mr. Seervai wants us to understand it, then the result would be that every amendment, whatever its nature, would constitute a fresh cause of action. But that certainly is not the meaning to be given to the principle laid down by the P.C. In this case also, when the order was challenged on one ground, certain evidence would have to be led in order to support that challenge. When the order is challenged on another ground, further evidence would have to be led in order to support that other ground. But it could not be said that the evidence in the two cases is different, in kind or character. The evidence is similar; the evidence is directed to establishing that the order was made mala fide or for a collateral purpose; and therefore, in my opinion, even applying the strict test laid down by P.C. the proposed amendment does not incorporate a new cause of action,
(emphasis supplied by me)
The Privy Council in Mohammad Khalil Khan's case (supra) has while considering what would be the same cause of action for purposes of Order 2 Rule 2 of the Civil Procedure Code indicated two tests to find out what is a different cause of action; the twin tests are, (1) if the evidence to support two claims is different then the cause of action are also different, and (2) the cause of action in two suits may be considered to be the same if in substance they are identical.
12. A similar view has been taken by a learned Single Judge of this Court in Ishwarlal Nandlal Mania v. The State of Maharashtra (now the State of Gujarat) (1966) 7 Guj. L.R. 589.
13. In view of this established legal position, I do not think that the learned Assistant Government Pleader can successfully challenge the maintainability of the suit for want of proper notice. If we scrutinise the averments made in the plaint, and the reliefs claimed, what is that the plaintiff was seeking from the Court; the plaintiff was in effect and substance seeking a declaration that the Union Government had no power authority and/or jurisdiction to deport him as he never ceased to be an Indian citizen nor had he acquired foreign citizenship. The defence of the Union Government to this claim was that the plaintiff has lost Indian citizenship and was a foreign national liable to be deported, more so, because a conclusive declaration under Section 9(2) of the Citizenship Act was made by the Union Government. The plaintiff by his amendment was asserting and maintaining that even after the declaration, the Union Government had no authority of power to deport him. It cannot be urged successfully that there was complete variance between the claim' made in the notice and the claim in the plaint nor can it be said, without violence to the language, that there was no relationship between the claim made in the amended plaint and in the notice served before filing the suit. In my opinion, the basis of the cause of action in the plaint before amendment and after amendment remained the same. It is no doubt true that after the amendment, the plaintiff would be required to lead certain additional evidence to substantiate his stand that the Central Government had no authority or power even after the declaration under Section 9(2) to deport him because that order was without jurisdiction and a nullity. But that would not amount to saying that, as Chagla C.J. said in Lady Dinabai's case (supra), the cause of action is different. The sum and substance of the averments in the plaints and the reliefs claimed in the suit remained the same, namely, that since the plaintiff happened to be an Indian citizen, and has not acquired foreign citizenship, the Union Government had no authority to' deport him. The plaintiff, after the amendment asserted that inspite of the declaration under Section 9(2) of the Citizenship Act the Central Government has no authority to deport him because that declaration under Section 9(2) is without jurisdiction and is a nullity since inasmuch as it was in violation of the principles of natural justice. I am, therefore, of the opinion that the contention of the learned Assistant Government Pleader that the suit is bad for want of notice must be rejected. Question No. 1 must, therefore, be, an seared in negative.
14. That fakes me to the real contention between the parties as to whether the declaration as contained in the order of the Central Government of August 28, 1968 which has been produced at Ex. 77, was void and ineffective, inasmuch as it was made without giving any opportunity of personal hearing to the plaintiff. A few relevant facts be recalled in order to see whether the challenge of the plaintiff to the impugned order is well conceived.
15. Under Secretary to the Government of India had by his notice of March 5, 1963. which is to be found at Ex. 73 on the record of the trial Court, called upon the plaintiff to show cause and to make representation and to produce material, if any, against the proposed determination of his status under Section 9(2) of the Citizenship Act. The plaintiff filed his explanation by his letter of March 31-1963. This reply has not been placed on the record of the trial Court. However, reference is made in the reply given by the plaintiff to the State Government by his letter of January 19, 1966, which has been produced at Ex. 48 on the record. After his reply of March 31, 1963, the Government of Gujarat called upon the plaintiff by their letter of July, 2, 1963 to show cause against the determination of the status by the Union Government under Section 9(2). The plaintiff filed his reply to the letter of State Government by his letter of July 9, 1963 before the Union Government, and sent a copy thereof to the Government of Gujarat and the District Superintendent of Police, Surat. The District Superintendent of Police, Surat, called upon the plaintiff to adduce evidence in support of the reply which the plaintiff did by his letter of January 19, 1966 with a request to forward it to the Government of India. This reply of January 19, 1966 is to be found at Ex. 48 on the record of the trial Court. The plaintiff set out in details as to how he claimed Indian citizenship, and also produced certain affidavits in support of his stand. In paragraph 4 of this reply of January 19, 1966 the plaintiff stated as under:
Under the above circumstance, I humbly submit that I am a citizen of India and still; however, if your Honour thinks proper 1 am ready and prepared to so to New Delhi with the oral evidence of my witnesses to prove my case and if your Honour finds any difficulty, I am ready to submit the further evidence if the opportunity is given to me. And therefore your Honour will be pleased to request the Central Government to withdraw the above notice which is served on me.
It should be emphasised that the plaintiff was all along contending that he had never gone to Pakistan at all much less migrated to that country It is no doubt true that in the show-cause-notice of March 5 1963 under Section 9(2) of the Citizenship Act, it has been alleged against the plaintiff that he had obtained passport of Pakistan for going to India on a short term Visa in form 'C', and, therefore, has lost his Indian citizenship because obtaining of passport would be conclusive evidence for holding that he had migrated to Pakistan after 14th August 1947 The question as to how far the obtaining of the passport by a person, as alleged by the Union Government, would be conclusive, has been considered by the Supreme Court in Md. Ayub Khan v. Commissioner of Police Madra and Ors. : AIR1965SC1923 as well in Mohd ilyas v. Union of India and Anr. : (1970)3SCC61 The question in Md. Ayub Khan's case (supra) was, whether the plaintiff could challenge the validity of the order of Commissioner of Police, Madras, made pursuant to the order of the Central Government under Section 9(2) of the Citizenship Act on the ground that he had not voluntarily obtained the passport from the High Commissioner for Pakistan in India. Mr. Justice Shah, speaking for the Court' said in paragraph 10 of his judgment as under:
Paragraph I of Schedule III which raises a rebuttable presumption when it appears to the Central Government that a citizen has voluntarily acquired foreign sanshad casts the burden of proof upon the citizen to disprove such acquisition aid Pa' graph 2 which authorises the Central Government to make enquiries for the purpose of determining the question raised strongly support the view that the Cent' Government must arrive at a decision that the Indian citizen has voluntarily acquired foreign citizenship before action can be taken against him on the foot that his citizenship is terminated. Paragraph 3 raises a conclusive presumption hat a citizen of India who has obtained a passport from a foreign country on any date has before that date voluntarily acquired citizenship of that other country By the application of the rule in paragraph 3 the authority must regard obtaining of a foreign passport on a particular date as conclusive proof that the Indian citizen has voluntarily acquired citizenship of another country before that date. But obtaining of a passport of a foreign country cannot in all cases merely mean receiving the passport. If a plea is raised by the citizen that he had not voluntarily obtained the passport, the citizen must be avoided an opportunity to prove that fact. Cases may be visualized in which on account of force a person may be compelled or on account of fraud or misrepresentation he may be induced, without any intention of renunciation of his Indian citizenship to obtain a passport from a foreign country. It would be difficult to say that such a passport is one which has been 'obtained' within the meaning of Paragraph 3 of Schedule III and that a conclusive presumption must arise that he has acquired voluntarily citizenship of that country.
This decision has been again referred and affirmed in Mohd. Ilya's case (supra) where Justice Hegde, speaking for the Court, referred to the distinction made by the Court in Md. Ayub Khan's case (supra) between receiving a passport and obtaining a passport, and held,-.it is only when a plea is raised that a citizen had not voluntarily obtained the passport that he should be afforded an opportunity to prove his case....
Justice Hedge, in paragraph 14 of his judgment, said as under:
On his own showing the appellant had voluntarily applied for and obtained the Pakistani passport. If he was an Indian citizen and that he happened to be in Pakistan, the appropriate course for him was to apply for entry permit from the Indian High Commission at Karachi. Without doing that, he represented to the authorities that he was a citizen of Pakistan and that he wanted to visit India to see his parents as well as sister's husband. It is not his case that he was compelled by force to obtain a passport from Pakistan or that he was a victim of any fraud. Therefore we are unable to appreciate the contention advanced by the learned Counsel for the appellant that the passport was not voluntarily obtained by the appellant. On the admitted facts, no occasion arose for the Government to give him a personal hearing or to give him an opportunity to adduce oral evidence.
16. Now, in the present case before me, the plaintiff had in his reply to the show-cause-notice of 5th March 1963 joined issue with the Union Government that he had not gone to Pakistan on any occasion much less migrated and, therefore, could be said to have voluntarily acquired the citizenship of Pakistan. It is no doubt true that the Union Government was alleging that he was holding a passport and had returned to India on a temporary visit Visa in from 'C'. Neither this passport n r the document has been produced in this case before the trial Court. But apart from this infirmity, if the plaintiff was joining issue and raising the question that he had never gone to Pakistan, much less migrated to that country, and when he had produced as many as affidavits of four persons from Surat to show that all throughout he was in India, and inspite of the plaintiff asking for an opportunity to adduce evidence and for personal hearing, the Union Government has not thought fit to accede to the request of the plaintiff. I do not think that on the facts and in the circumstances of this case, it can be said that the order is a valid Order 0.1 the principles of fair play and justice. It is an admitted position that no personal hearing was given nor any opportunity afforded to adduce any oral evidence in the matter.
17. The learned Assistant Government Pleader has invited my attention to the admission made by the plaintiff in his deposition before the trial Court where the plaintiff has stated that he did not want to place any material beyond what he has produced along with his reply to the show-cause-notice. In the chief examination, in paragraph the plaintiff has stated that in reply he had demanded inquiry in person at Delhi and that neither he nor any of his witnesses was called nor any reply was sent to him. In cross-examination, in paragraph 17, he stated that he had given reply to the notice after taking advice from his Advocate wherein he has mentioned all the facts and he had sent all the evidence to Delhi with his reply and except that what he produced, he did not intend or want anything more to be produced. I do not think that this can absolve the Union Government from giving an opportunity for personal hearing or opportunity to adduce evidence because the request of the plaintiff made in his reply was very much before the Central Government, and the Central Government did not know or could not have anticipated that the plaintiff was completely satisfied with what he had produced with his reply as stated by him in cross-examination.
18. The only inference which one can draw from his so-called admission in his cross examination is that besides what he had stated in his reply, he did not want to state anything further or additional facts nor did he want to produce anything besides what be had already produced with his reply, none-the-less his request to the Union Government to give him a personal hearing for purposes of adducing oral evidence of the dependents of the affidavits annexed with his reply, and to lead further evidence by summoning them was very much before the Central Government. As a matter of fact, the learned Assistant Judge has observed in his judgment that the District Superintendent of Police by his letter of March 23, 1967 in pursuance of the direction of the Central Government informed the plaintiff that no hearing could be granted him and the plaintiff can substantiate his case by affidavits. In the circumstances, therefore, I do not think that there are any justifying reasons for me to interfere with the concurrent findings made by both the Courts below that the order of the Union Government of August 28, 1964 produced at Ex. 72 on the record of the trial court was void and ineffective as it was made in clear violation of the principles of natural justice. The second contention of the learned Assistant Government Pleader, therefore, should be rejected.
19. In view of these two findings, questions Nos. 1 and 3 formulated by this Court should be answered in negative and affirmative respectively, that is, in favour of the plaintiff and against the Union and the State Government. In view of these answers, question No. 2 is not required to be answered.
20. The result is that this appeal fails substantially and the order of the Appellate Court confirming the order of the Trial Court should be upheld subject to this modification that the Union and State Government are restrained by an injunction from deporting the plaintiff from India since the order of the Union Government of August 28, 1964 is declared bad in law and ineffective and the Union Government shall have liberty, if so advised, to resume the proceedings from the stage of the reply filed by the plaintiff' to the show-cause-notice under Section 9(2) of the Citizenship Act and given opportunity for personal hearing to the plaintiff if the Union Government intends to determine the status of the of plaintiff. The order of the Appellate Court allowing the cross-objections and granting declaration of Indian citizenship is to that extent set aside. Appeal is disposed of accordingly with no order as to costs.