SAYED AHMED KABULI Vs. STATE OF MAHARASTHRA

JUDGEMENT

(1.) The plaintiff, appellant in this letters Patent Appeal, Instituted a suit in the City Civil Court at Bombay for - (a) declaration that the plaintiff was a citizen of India. and (b) for permanent injunction restraining the defendant i.e. the State of Maharashtra, the provisions of the Foreigners Act. The suit was instituted on 23rd January 1963. It was pleaded that he was born in Afghanistan, but has made India his domicile since his arrival in Bombay in the year 1941. He never left India since then. However on the pressure of the police officers, he was constrained to register himself as a foreigner on 12th July 1956, and also to receive Afgan passport thereafter through Afghanistan Consulate to enable him to continue his stay in India. After the expiry of the passport period on 11.4.1961, the Afghanistan Consulate declined to renew his passport. Defendants, police officers, on the other hand, threatened to serve "leave India" notice if passport was not renewed within two months from their notice dated 11.12.1961. Finally such notice was served on 18.7.1962. The plaintiff instituted this suit after serving notice on the defendant under Section 80 of the Code of Civil Procedure dated 2nd October 1962.

(2.) The State of Maharashtra denied that the plaintiff was a citizen of India and that he was entitled to the relief's prayed. The jurisdiction of the Court to entertain or try the suit was also questioned in view of the provisions of the Citizenship Act of 1955, hereinafter referred to as 'the Act'.

(3.) On evidence, the trial Judge held that the plaintiff was a citizen of India at the commencement of the Constitution. The suit filed after six years from the date of registration as foreigners was however, found to have been barred by limitation under article 120 of the Limitation Act of 1908, and consequently has been dismissed. While so holding the trial Judge followed a judgment of the trial Judge followed a judgment of the Division Bench of this Court dated 3rd October 1962 in First Appeal No.295 of 1960 delivered by Patel J. His First Appeal was dismissed by a Single Judge of this Court on 25th March 1970 holding that even if the suit was held to be within time, the plaintiff would not succeed in getting the relief's in view of the plaintiff being alleged to be a foreigner and the Trial of such an issue being barred by Section 9(2) and Rule 30 of the Citizenship Act. Correctness of this judgment is challenged in this Letters Patent Appeal by the plaintiff.