STATE OF GUJARAT Vs. KAYAMALI HASIMBHAI

JUDGEMENT

(1.) This appeal is filed by original defendant No.1 State of Gujarat against whom as well as against respondent No.2, respondent no.1 herein -original plaintiff filed Regular Civil Suit No. 67 of 1995 for declaration that the plaintiff is the Indian Citizen and continued to be the Indian Citizen until the defendants get decision against the plaintiff under Section 9(2) of the Indian Citizenship Act (herein after referred to as "the Act") and also praying for permanent injunction restraining the defendants from deporting the plaintiff till the defendants get such decision from the Central Government under Section 9(2) of the Act.

(2.) It is the case of the plaintiff that the plaintiff was born in Godhra, District Panchmahals on 25.4.1945 and his parents were also born in Godhra. It is averred that on 24.4.1950, the plaintiff was admitted in Saifiya Madaresa and studied there till 5th standard and thereafter, was admitted in Iqbal Union High School on 20.6.1956 and passed SSC Examination in the month of October, 1963. It is the further case of the plaintiff that thereafter, the plaintiff had undergone electrician course from Paresh Technical Institute, Palace Road, Vadodara and got certificate from the Director of Technical Education, Gujarat State of having passed out in the said course. The plaintiff also got merit certificate from the Principal, Iqbal Union High School on 26.1.1963. It is the further case of the plaintiff that the plaintiff got married with Jenab, daughter of Khurshidhushen Kadwalwala in October, 1970 and stated that he is having the Nikah Certificate with him. Out of the wedlock, one daughter Sakina born on 31.10.1977 at Dr.Jivanlal Shah Hospital in Godhra and her birth was registered in the birth register of Godhra Municipality. The plaintiff has further averred that another daughter named Kaushar was also born out of the wedlock on 13.12.1982 in the said hospital. Her birth was registered with the Municipality and thereafter, on 28.7.1988, son Abbas was born out of the wedlock at Surat. Thus, the plaintiff, his wife and their children are the Indian Citizen. It is the further case of the plaintiff that in 1965, the plaintiff and family members were harassed and, therefore, Regular Civil Suit No. 120 of 1965 was required to be filed by all the family members including the plaintiff not to deport the plaintiff and his family members. Said suit was decided in favour of the plaintiff by judgment and decree dated 19.1.1966 against which the defendants had preferred Civil Appeal No.32 of 1966 which came to be dismissed by the appellate Court by judgment and decree dated 8.11.1966. It is further averred by the plaintiff that if the defendants are saying that the plaintiff has lost the citizenship of India and acquired citizenship of another country, it is the duty of the defendants to get such issue decided by the Central Government under Section 9(2) of the Act and in these circumstances, even if the plaintiff had gone to Pakistan on 26.1.1950, unless it is decided that the plaintiff has ceased to be the Indian Citizen, the plaintiff continues to be the citizen of India.

(3.) The suit of the plaintiff was resisted by the defendants by filing the written statement stating that the civil Court has no jurisdiction to entertain and decide the suit and the suit was barred in absence of notice under Section 80 of the Code of Civil Procedure. It is also stated that the parents of the appellant had already left for Pakistan and acquired Pakistani citizenship. It is further stated that the plaintiff had migrated to Pakistan voluntarily in the year 1966 and since then, he has been in Pakistan and residing there at Karachi and doing the business of electrical goods supplier and, therefore, no question under Section 9(2) of the Act arises for determination. It is also stated that the plaintiff holds Pakistani Passport No. A233553 dated 21.9.1994 and on the basis of this passport, the plaintiff got Visa from the Indian Consulate General at Karachi on 6.12.1994 for a period of 90 days for Mumbai and Godhra and came to Godhra on 23.12.1994. It is also stated that the plaintiff was required to get himself registered at Mumbai but he did not do so and made application on 23.12.1994 to get himself registered at Godhra. It is also stated that from the application, message of CID, IB, xerox copy of residential premises, Visa Application Bombay TRP and extract of registration, it appears that the plaintiff is not the Indian Citizen but he is Pakistani Citizen. It is further stated that the plaintiff has been residing at Pakistan with family members and has come to India to meet his relatives and his stay was limited upto 20.3.1995 before which he was required to leave India he did not do so and for staying illegally, he has filed the suit with a view to see that he is not deported.