SAEEDA MOHAMMAD KAYUM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal under Section 100 of the Code of Civil Procedure has been filed by Smt. Saeeda wife of Mohammad Kayum and Mohammad Kayum son of Shri Suleman, against the judgment and decree dated 4th of January, 1984 passed by the Additional District Judge, Court No. 4. Jaipur City, Jaipur, in Civil Revision Appeal No. 67/81 (229/80), whereby he partly allowed the appeal against the judgment and decree dated 15-11-1980 passed by the Additional Munsiff Magistrate, Jaipur West, Jaipur, in Civil Suit No. 229/71, whereby the suit of the plaintiff-appellants was dismissed.

(2.) Briefly stated the facts of the second appeal are that initially sole plaintiff, the appellant No. 1, Smt. Saeeda filed a suit for declaration and permanent injunction in the lower Court on 26th of March, 1971 wherein it was pleaded that she is a citizen of India and her engagement took place with defendant No. 4 Mohammad Kayum in the year 1955 and she was married with him in the year 1964. It was further pleaded in the plaint that on 7th of December, 1961 the Police Station, Manak Chowk, filed a criminal complaint against the defendant No. 4 Mohammad Kayum to the effect that he is having Pakistani nationality and came to India vide Passport No. 422881 dated 17/7/1956 and Visa No. 9791 dated 5/2/1960, through checkpost Barmer on 16/4/1960 (wrongly typed in the plaint as 16/7/1960) and started living with his father at Jaipur. As per term of visa the defendant No. 4 ought to have left India on 15/7/1960 but he did not go to Pakistan and continued to reside at Jaipur secretly, therefore, the defendant No. 4 committed an offence under Section 7/14 of the Foreigners Act. However he has been acquitted from the aforesaid charge by the Assistant Collector and Magistrate, 1st Class, Court No. 2, Jaipur City, Jaipur, vide judgment and order dated 31-5-1962. It was further pleaded in the plaint that some persons had enmity with the plaintiff and her family, therefore, they made false complaint against the defendant No. 4 about his being Pakistani nationality and on the said false complaint the CID, Crimes, Rajasthan, started harassing the defendant No. 4, the husband of the plaintiff, day-to-day. It was also pleaded that the defendant No. 4 was taken by the police illegally and now the whereabouts of the defendant No. 4 are not known, therefore it was prayed that the defendant Nos. 1 to 3 be restrained from sending the defendant No. 4 from the Indian border to Pak border. It was also prayed that the plaintiff as well as the defendant No. 4 be declared as citizens of India.

(3.) The defendant No. 4 (the appellant No. 2 herein) Mohammad Kayum filed an application in the lower Court on 25th of May, 1971 under Order 1, Rule 10 of the CPC for transposition of his name as 0plaintiff No. 2 in place of defendant No. 4. The application was allowed by the lower Court on 14th of July, 1971. The amended plaint was filed on 4th of August, 1971 in which Mohammad Kayum was impleaded as plaintiff No. 2 in the suit. As per the amended plaint the prayer No. 1 was that the plaintiff Mohammad Kayum be declared as citizen of India; and in other prayers it was prayed that the plaintiff may not be deported from India to Pakistan.