[Cites 6, Cited by 0]
Gauhati High Court
Page No.# 1/ vs The Union Of India And 2 Ors on 10 December, 2025
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/10
GAHC010241692025
2025:GAU-AS:17137-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Civil)/3966/2025
RAHMAN ALI ALIAS RAKHMAN ALI
R/O VILL. DUBADUBI, P.S. SARTHEBARI, DIST. BARPETA, ASSAM.
2: MAHIDUL ALI
S/O RAHMAN ALI @ RAKHMAN ALI
R/O VILL. DUBADUBI
P.S. SARTHEBARI
DIST. BARPETA
ASSAM
VERSUS
THE UNION OF INDIA AND 2 ORS
REPRESENTED BY THE SECRETARY TO THE GOVT OF INDIA,
DEPARTMENT OF HOME, NEW DELHI
2:THE STATE OF ASSAM
REPRESENTED BY THE SECY. TO THE GOVT. OF ASSAM
DEPTT. OF HOME
DISPUR
GUWAHATI 6
2:THE STATE OF ASSAM
REPRESENTED BY THE SECRETARY TO THE GOVT OF ASSAM
DEPARTMENT OF HOME
DISPUR
GUWAHATI 6
3:THE SUPERINTENDENT OF POLICE B
BARPETA
PO AND DISTRICT BARPETA ASSAM
Page No.# 2/10
3:THE SUPERINTENDENT OF POLICE (B)
BARPETA
P.O. AND DIST. BARPETA
ASSAM
Advocate for the Petitioner : MR. A R SIKDAR, MR. Z H BORA,J A SIKDAR,MR. S I
TALUKDAR
Advocate for the Respondent : DY.S.G.I., GA, ASSAM,SC, F.T
Linked Case : CS/0/0
RAHMAN ALI ALIAS RAKHMAN ALI
RO VILLAGE DUBADUBI
PS SARTHEBARI
DISTRICT BARPETA
ASSAM
2: MAHIDUL ALI
RO VILLAGE DUBADUBI
PS SARTHEBARI
DISTRICT BARPETA
ASSAM
VERSUS
THE UNION OF INDIA
REPRESENTED BY THE SECRETARY TO THE GOVT OF INDIA
DEPARTMENT OF HOME
NEW DELHI
2:THE STATE OF ASSAM
REPRESENTED BY THE SECRETARY TO THE GOVT OF ASSAM
DEPARTMENT OF HOME
DISPUR
GUWAHATI 6
3:THE SUPERINTENDENT OF POLICE B
BARPETA
PO AND DISTRICT BARPETA ASSAM
------------
Advocate for : SHAHIDUL ISLAM TALUKDAR
Advocate for : appearing for THE UNION OF INDIA
Page No.# 3/10
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MRS. JUSTICE SHAMIMA JAHAN
ORDER
Date : 10-12-2025
[K.R. Surana, J]
1. Heard Mr. A.R. Sikdar, learned counsel for the applicants. Also heard Mr.
S.P. Choudhury, learned CGC; Mr. G. Sarma, learned standing counsel for the FT
and Border matters; and Mr. P. Sarmah, learned Additional Senior Govt.
Advocate for the State respondent.
2. By filing this review application under Chapter X of the High Court Rules
read with Section 114 and Order XLVII, Rule 1 of the CPC, the applicants,
namely, Rahman Ali @ Rakhman Ali, Maziran Nessa and Mahidul Ali have prayed
for review of the Order dated 31.01.2014 passed by this Court in W.A. No.
390/2013.
3. From the materials available in this review petition, it appears that
reference was made by the Superintendent of Police (Border), Barpeta under
the IM(D)T Act, expressing doubt regarding the nationality of the applicant no.
1 and his relatives, namely, the applicant no. 2 and the applicant no. 3.
Accordingly, a proceeding which was registered as IM(D)T Case no. 30/2004
was registered. It appears that consequent to the judgment of the Supreme
Court of India in the case of Sarbananda Sonowal vs. Union of India and
another, (2005) 5 SCC 665 whereby, the IM(D)T Act was declared to be ultra
vires, by virtue of Government order dated 19.07.2005, references before the
Illegal Migrants Determination Tribunal were all transferred for adjudication
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before the Foreigner's Tribunal under the Foreigners' Act, 1946. Accordingly, F.T.
Case No. 06(III) of 2012 was registered before the learned Member, Foreigners'
Tribunal-III, Barpeta. By an Opinion dated 11.02.2013, the reference was
answered in favour of the State by holding the applicants to have entered into
India without authority after 25.03.1971 and accordingly, they were declared to
be foreigners/illegal migrants of post 21.03.1971 stream.
4. The said opinion was unsuccessfully assailed in W.P.(C) No. 2017/2013,
which was dismissed by the learned Single Judge by an order dated 09.09.2013.
5. The applicants preferred an intra-court appeal which was registered as W.A.
No. 390/2013 and the said appeal was also dismissed by order dated
31.01.2014.
6. Aggrieved by the said appellate order, the applicants filed a review petition
which was registered as Review Petition No. 63/2014. This Court, in exercise of
review jurisdiction, arrived at a conclusion that no notice was served on the
review applicant no. 2, namely, Musstt. Maziran Nessa and accordingly, the
review petition was allowed in respect of the review applicant no. 2, inter alia,
on the ground that no notice was served on the review applicant no. 2 and
therefore, the question of declaring her to be a foreigner does not arise.
Nonetheless, notwithstanding the finding as recorded in the said review petition,
it was further ordered that it would be open to the Superintendent of Police
(Border), Barpeta to take appropriate steps against the review applicant no. 2, if
circumstances and materials on record justify such steps.
7. It appears from Annexure-15 of the review petition that aggrieved by the
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order passed in the said Review Petition No. 63/2014, the applicant no. 1 and
the applicant no. 3 approached the Supreme Court of India by filing a Petition
for Special Leave, which was registered under Diary No(s). 23598/2017 and the
following order was passed on 25.06.2014. The said order is quoted below :-
Upon hearing the counsel the Court made the following
ORDER
Learned counsel for the applicants seeks permission to withdraw
the petition with liberty to file review in the High Court in the changed
circumstances regarding mother etc. Without commenting on the
maintainability of the Review, permission is granted. The special leave
petition is dismissed as withdrawn.
8. Coming to the accompanying review petition, the same has been filed vide
filing serial no. 13884/2025 on 30.10.2025 with delay calculated by the Registry
as 4259 days, excluding the 30 days of limitation prescribed.
9. The learned counsel for the applicants has submitted that as the mother
applicant no. 2 was excluded from the scope of the opinion dated 11.02.2013,
by allowing the review petition, at least the applicant no. 2, namely, Mahidul Ali,
would be entitled to benefit.
10. The prayer in this application is opposed by the learned counsel for the FT
matters.
11. In this case, the delay is of 4259 days. However, if the delay is calculated
from 30.10.2017, the date the Supreme Court of India had passed orders in
proceeding arising out of Diary No(s) 23598/2017, the present application was
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filed on 30.10.2025 after delay of 2963 days.
12. Accordingly, the explanation rendered by the applicants that the delay
prior to filing of the previous review petition was due to arrest of the applicant
no. 2 is not relevant, as the calculation of delay would be from the date of the
order dated 31.01.2014, passed by this Court in W.A. No. 390/2013. In the
meanwhile, as Review Petition No. 63/2014 was partly allowed by this Court by
order dated 24.11.2016, the appellate order would get merged with the order
passed in the review petition.
13. Be that as it may, the Supreme Court of India, by an order dated
30.10.2017, granted liberty to the applicants to withdraw the Special Leave
Petition with liberty to file a review petition before this Court. However, though
the applicants have stated in paragraph 4 of this application that the present
review petition has been filed immediately after withdrawal of the previous one,
it is not a correct representation because the present review petition has been
filed approximately 9 (nine) years after the partly allowing of the Review Petition
No. 63/2014 vide order dated 24.11.2016. The review petition has not been
filed after withdrawal of the earlier review petition, but it has been filed 2963
days after withdrawal of the proceeding before the Supreme Court vide Diary
No(s). 23598/2017. Therefore, the factual representation and explanation for
the delay does not hold good.
14. The Court has expressed its inclination not to touch the matter on merit
because the Court is considering only the delay condonation petition. However,
at the repeated insistence of the learned counsel for the applicants, the issue
raised by him, though avoidable, has been referred to, however after putting
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both sides to notice in open Court proceeding that if merit is touched, either
side may be prejudiced.
15. The learned counsel for the applicants has submitted that on exoneration
of the applicant no. 2, the applicant no. 3 would get some advantage. In the
said regard, we have already referred to the observations made by the Division
Bench of this Court in the order dated 24.11.2016 passed in the Review Petition
No. 63/2014. By the said order, though the applicant no. 2 was exonerated but
the finding of the learned Tribunal, as affirmed by the learned Single Judge as
well as by the Division Bench of this Court attained finality so far as applicant
no. 3 is concerned.
16. The learned counsel for the applicants has raised the issue of the then
minority of the applicant no. 3 when the writ appeal was filed. In this
connection, this Court is inclined to refer to the provisions of Order XXXII Rule 2
of the CPC, the principle of which would apply to a review petition, wherein it is
provided that if a proceeding is instituted without next friend in the context of
suit, the plaint is required to be taken off the file. At this stage, in the absence
of any materials on record, the Court has to presume that if the applicant no. 3
was a minor at the time when the writ petition, writ appeal or review petition
was filed, it was through his next friend. Moreso, there is nothing on record to
show that the applicant no. 3 has protested against the applicant no. 1 and the
applicant no. 2 for filing the writ petition, writ appeal and the review petition
without any authority.
17. Be that as it may, the Court is of the considered opinion that as the delay
for 4259 days has not been properly explained, specifically from 30.10.2017 till
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filing of the review petition, the explanation for the delay is not sufficient to
condone the delay of 2963 days from 30.10.2017, or 2963 days by excluding 30
days of allowing the review. In any event, the present review application, as the
review of order passed in W.A. No. 390/2013 has been prayed for, the delay, as
indicated above is 4259 days, and the explanation to that delay is also grossly
insufficient.
18. Be that as it may, in this case, the applicants, including the applicant no. 3
are seeking to take advantage of the order passed by the Division Bench of this
Court on 24.11.2016, passed in Review Petition No. 63/2014, by which the
applicant no. 2 was exonerated on account of no notice being served. This
Court, having entertained a previous review application, being Review Petition
No. 63/2014, would be debarred under the provisions of Order XLVII, Rule 9 of
the CPC, because the said provision bars a second review petition by providing
that "no application to review an order made on an application for a review or a
decree or order passed or made on a review shall be entertained".
19. Accordingly, the earlier review petition having been entertained, the
second review petition would be barred.
20. In this regard, the Court finds support from the decision of the Supreme
Court of India in the case of Vipin Kumar vs. Jaydeep and others, 2025 INSC
169 : 2025 SC 294. Paragraphs 17 and 24 quoted from Supreme today is
reproduced hereinbelow :-
17. This appeal arises out of the order dated 05.01.2021 wherein an
application seeking recall of the order passed in the Review Petition
dated 11.10.2019 and consequently, the judgment dated 01.07.2019
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was sustained. This was on the premise that a second Review Petition is
barred under Order XLVII Rule 9 of the Code.
* * * * * * *
24. In the circumstances, the High Court was justified in holding that
there could not be a second review maintainable and thereby dismissing
the application seeking recall of the order and judgment passed by the
High court on 01.07.2019. He submitted that there has to be a finality to
the lis between the parties and the appellant cannot again and again
seek to reopen what has already been concluded at the hands of this
Court. He therefore, submitted that there is no merit in this appeal and
the same may be dismissed.
21. It is once again clarified that the merit of the connected review petition
has been partly examined at the repeated insistence of the learned counsel for
the applicants.
22. However, the reasons for not issuing notice in this interlocutory application
filed under Section 5 of the Limitation Act, praying for condoning the delay of
4259 days of the period of limitation for review of the order dated 31.01.2014
passed in W.A. No. 390/2013, and resultant dismissal of this interlocutory
application is because of lack of acceptable explanation for the delay in filing the
review petition. Moreso, as earlier a review application being Review Petition no.
63/2014, has been entertained in respect of order dated 31.01.2014 passed in
W.A. no. 390/2013, which is already referred hereinabove, the accompanying
second review petition is barred under Order XLVII Rule 9, CPC. Therefore, this
interlocutory application is found to be without any merit and the same is
accordingly, dismissed at the initial stage without issuance of notice on the
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respondents.
23. Resultantly, the unnumbered review petition filed vide serial no.
13884/2025 also stands dismissed.
JUDGE JUDGE
Comparing Assistant
