Safiya Khatun v. Union of India & Ors., W.P. (C) 7617/2018
Read the judgement here.
Date of the decision: 16.11.2018
Court: Gauhati High Court
Judges: Justice Manojit Bhuyan and Justice Prasanta Kumar Deka
Summary: The Foreigners’ Tribunal disallowed the Petitioner from filing an additional written statement on grounds of provisions under the Code of Civil Procedure. The Petitioner challenged this order. The Court ruled in favour of the Petitioner by underlining the limited application of the Code of Civil Procedure in a proceeding before a Foreigners’ Tribunal. Thereby, allowing the Petitioner to file an additional written statement.
Facts: The proceedee submitted a petition seeking the leave of the Foreigners’ Tribunal (FT) to file an additional written statement and the amendment of a written statement already on record. The FT rejected the petition on grounds of Order VI Rule 17 of the Code of Civil Procedure (CPC) which prohibits parties from amending their pleadings after the commencement of trial. Thus, disallowing the Petitioner from filing an additional statement.
Holding: The Court argued that the Order VI Rule 17 of the CPC is not applicable in a proceeding before the Foreigners’ Tribunal. This was asserted on the grounds of Section 4 of the Foreigners’ (Tribunals) Order, 1964 that prescribes a limited application of the provisions under CPC. The FT’s rejection of the proceedee’s petition was, thus, held as ‘wrong jurisdiction’ (paragraph 2). In consequence, the Court permitted the Petitioner to file an additional written statement. However, it did not allow her to amend the written statement already on record.
Significance: This judgement is significant since it allows the filing of an additional written statement. However, the reasoning underlying this finding is concerning.
As per Order VI Rule 17 of the CPC, a party can amend their pleadings at any stage of the proceeding provided that the trial has not yet commenced. The order, moreover, allows for exceptions in cases where the party could not have raised the matter before the commencement of trial. Given this flexibility, the Court could and has resorted to Order VI Rule 17 of the CPC for the filing of additional written statements. Both in North Eastern Railway v. Bhagwan Das, Appeal (Civil) 2785 of 2008 (paragraph 15) and Peethani Suryanarayana v. Repaka Venkata Ramana Kishore, (2009) 11 SCC 308 (paragraph 9), the Court allows for an amendment after the commencement of trial under two conditions. First, that the application must be bonafide and second, that it will not cause injustice to the other side.
There are two points to note here. Firstly, that the CPC already includes provisions for discretion. Given that the case at hand meets the aforementioned conditions, it is striking when the Court uses Section 4 of the Foreigners’ (Tribunals) Order, 1964 to render the application of Order VI Rule 17 of the CPC as ‘wrong jurisdiction’. While the judgement’s implicit distinction between proceedings in a civil court and that before a FT is not inherently dangerous, it has the potential to become so in the absence of an alternative and/or independent legal framework particularly used to govern the Tribunal.
We see this increasing trend in Samser Ali v. Union of India as well. This case relies on Safiya Khatun to allow the Petitioner to submit additional documents. Such leniency, although in favour of the Petitioner, is dangerous without any procedural safeguards. By affirming the application of CPC to be limited, the Court places the FTs outside the legal ambit. Thus, giving further power to a quasi-judicial body that already functions arbitrarily. This is why the case of Safiya Khatun is pertinent; it not only supports but also furthers such development. It also raises concerns about the nature of written statements. We discuss the same further in our note on Samser Ali v. Union of India.
Table of Authorities:
North Eastern Railway v. Bhagwan Das, Appeal (Civil) 2785 of 2008
Peethani Suryanarayana v. Repaka Venkata Ramana Kishore, (2009) 11 SCC 308
Shreya U.K., Case Note: Samser Ali v. Union of India, WP(C) 7617/2018, Parichay Blog.
This case note is part of Parichay’s ongoing project to study, track, and publish key propositions and the latest developments in citizenship law and adjudication in India. This note was prepared by Shreya U.K.