Sri Radheshyam Nath vs The Union Of India & Ors.

(Shamima Jahan, J.)

This is an application for review preferred by the petitioner under Order XLVII Rule 1 of the Code of Civil Procedure, 1908 read with Chapter X of the Gauhati High Court Rules. The petitioner has sought for reviewing of the Judgment and Order dated 24.06.2026 passed in W.P. (C) No. 3940 of 2018 mainly on five counts and they are as follows:-

We have considered the submissions made by Ms. M. Dev, learned counsel for the petitioner as well as Mr. G. Sarma, learned Standing Counsel, Home Department and NRC, Ms. S. Katakey, learned Standing Counsel for ECI, Ms. M. M. Kataky, learned CGC and Mr. M. Chetia, learned Government Advocate, Assam.

Before delving into the said points raised by the review petitioner, this Court would like to quote Order XLVII Rule 1 of the CPC, 1908, as under:-

A bare perusal of the aforesaid provision provides that on discovery of any new and important matter or evidence, which was not in the knowledge of the party concerned, in spite of exercising its due diligence or which could not be procured by him during the time when the case was disposed of, the same can be placed in a review jurisdiction.

It is further provided under the said provision that on account of any mistake or error on the face of the record, appearing in the judgment, the same can be reviewed. It is no res-integra that the error apparent has to be shown by the party concerned on the very face of the record and not on a deep study of the materials.

Error contemplated under the Rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. It must be an error of inadvertence.

In Col. Avatar Singh Sekhon v. Union of India and Ors., reported in 1980 Supp SCC 562, the Apex Court observed that a review of an earlier order cannot be done unless the court is satisfied that the material error which is manifest on the face of the order, would result in miscarriage of justice or undermine its soundness. The observations made are as under:

In Sow Chandra Kante and Anr. v. Sheikh Habib; reported in (1975) 1 SCC 674, the Apex Court observed:

By applying the aforesaid analogy, both provided in the statute as well as in the judgments of the Hon’ble Supreme Court, this Court would now deal with the points raised by the review petitioner. With regard to the first point, that this Court, had observed in Paragraph-8 of the Judgment and Order dated 24.06.2026, that the petitioner had stated in the written statement that his father and his grandfather had come from East Pakistan and settled in Deccaipatty, the petitioner stated that it was only the father of the petitioner, who had come from East Pakistan in the year 1960 and not his grandfather as has been observed by this Court. This is termed as an error apparent on the face of the record by the review petitioner. However, the Hon’ble Supreme Court had held on a number of occasions, one of which has been quoted above that an earlier order can be reviewed only when the material error results in miscarriage of justice or undermine its soundness. In the said judgment and order, in Paragraph-3 thereof, it was stated by this Court in clear words that the father of the petitioner, son of Late Mahendra Kumar Nath came from East Pakistan in the year 1960. However, while stating about the written statement, an error crept up that both the father and the grandfather of the petitioner came from East Pakistan. Since the written statement is the basic document laying down the foundation of the case of the proceedee, the same be corrected by the instant judgment. As such, in Paragraph-8 of the said Judgment and Order dated 24.06.2026, a necessary correction be made to the effect that the petitioner’s father came from East Pakistan in the year 1960 and settled in Deccaipatty, Nagaon, Assam (India).

In the same paragraph, i.e., paragraph-8 of the said judgment, another observation was made by this Court that petitioner’s father obtained a certificate of registration vide Serial No. 105/1968 and Registration No. 287871, which was again termed as an error apparent on the face of the record due to the reason that the petitioner’s father had obtained the certificate of registration vide Serial No. 106/1968, and Registration No. 287872. It was also stated by the review petitioner that nowhere in the written statement, the petitioner stated that his father obtained the registration certificate vide Serial No. 105/1968 with Registration No. 287871. However, on a bare perusal of the written statement will make it sufficiently clear that the father-in-law of the petitioner, who had come together with the petitioner’s father from East Pakistan had obtained the Registration Certificate vide Serial No. 105/1968 with Registration No. 287871. In fact, in paragraph-8 of the said judgment, an inadvertent error had appeared to the effect that instead of stating as the father of the petitioner, it should have been father-in-law of the petitioner. As such, in the said paragraph, necessary correction is made that it was the father-in-law of the petitioner, who had obtained the registration certificate by the said serial number and registration number.

The second point that was raised by the review petitioner was that in the said judgment and order, more specifically, in paragraph-9 of the judgment, it was observed by this Court that date of birth of the petitioner was on 31.12.1973 and that the same is an error apparent on the face of the record. The review petitioner stated that he had neither written in the written statement nor adduced in evidence, that his date of birth was 31.12.1973 and that the school certificate that he had exhibited displayed that he left the school on 31.12.1973, when he was aged 10 years and 6 months. In the judgment and order of this Court, it was specifically written in paragraph-3 of the same, that petitioner was born in the year 1963, but in the submissions of the learned counsel appearing for the petitioner, it was inadvertently written that the date of birth of the petitioner was 31.12.1973. As such, the said observation is corrected to the effect that the petitioner had completed his education in Mikirbheta Balak Primary School on 31.12.1973 and that his age at that juncture, was 10 years and 6 months.

A further observation made in the judgment of this Court was said to be an error apparent on the face of the record by the review petitioner to the effect that the document which was issued by Sub-Divisional Officer (Sadar), Nagaon, showing that the petitioner was one of the heir of Late Baishnab Charan Nath, was based on an affidavit and the voters’ list of 1985 and that the said affidavit was not placed, neither it was exhibited before the Trial Court. The petitioner states that the affidavit was submitted by the petitioner and his relatives before the authority concerned and on the basis of the same, they were given the legal heir certificate and as such, it was stated that the affidavit was not in their possession. However, the same cannot be considered as an error apparent on the face of the record, within the ambit of Order XLVII Rule 1 of CPC, 1908, inasmuch as, the petitioner could have placed at least a photocopy of the said affidavit in the shape of secondary evidence. The said heir certificate was also on the basis of 1985 voters’ list, which again could not show that the projected father, Late Baishnab Charan Nath, is actually the father of the petitioner since in the said voters’ list, the name of the petitioner solely appeared. Furthermore, the said point that the affidavit was not in possession of the petitioner, was never argued by the conducting counsel. Further, the said legal heir certificate was not even placed before the Tribunal and was not exhibited.

Yet another observation made by this Court in paragraph-16 of the judgment and order dated 24.06.2026, was considered to be an error apparent on the face of the record by the review petitioner to the effect that the fact that the sister-in-law and nephew of the petitioner, who were declared as Indian citizens, were not written in the written statement. The petitioner stated that the said fact could not have been stated in the written statement since the said declaration was made after the written statement was filed. However, the same cannot be also a ground for review in view of the fact that the petitioner could have brought the said fact to the knowledge of the Tribunal, either by filing a subsequent written statement or by making oral submissions before the Tribunal. It will not be out of context to mention herein, that the declaration with regard to the sister-in-law and nephew of the petitioner, was made on 24.06.2016, and the declaration with regard to the petitioner was subsequently, made on 18.05.2018, i.e., almost after two years and the declarations were made by the same Tribunal. Moreover, no arguments were made on that behalf before this Court.

The last point that the review petitioner has raised is that he had discovered two numbers of documents after the judgment of this Court. He submits that the certificate of registration obtained by his father on 20.02.1968, vide Serial No. 106/1968 and Registration No. 287872, could not be placed in original during the proceeding before the Tribunal by him since the same was exhibited in respect of another FT Case being FT Case No. 50 of 2015. He, however, submits that he acquired the said certificate after the judgment of this Court was delivered and as such, he seeks review of the said judgment and order under Order XLVII Rule 1 of the CPC. The second document that the petitioner is stated to have acquired is the voters’ list of 1985, wherein not only the name of the petitioner appeared, but also his family members. The petitioner submits that the said document was misplaced by his brother, namely, Bhabaranjan Nath, and that he had discovered the same from the said brother on 02.07.2026. The petitioner, as such, seeks that the judgment be reviewed with regard to the discovery of the said two documents.

A bare perusal of Order XLVII Rule 1 Sub Rule (c), makes it clear that on discovery of new and important matter or evidence, which was not within the knowledge of the review petitioner, even on due diligence being exercised, review can be allowed. The said provision also provides that in the alternative, if the said new or important matter or evidence could not be produced by the review petitioner, when the order was made, review can be entertained. In the instant case, it is seen that both the registration certificate obtained by the father of the petitioner as well as the voters’ list of 1985, were within the knowledge of the petitioner, not to speak of exercising any due diligence, but the same could not be produced by him before the trial Court as well as before the High Court. The word used by the legislature in the said provision is “or” i.e. either it was not in knowledge or it could not be produced. The reason given by the petitioner is that the registration certificate in original was produced in connection with another case and the voters’ list was misplaced by his brother. It is noticed that the said documents could not be placed or exhibited by the petitioner before the Court of law and as such, the same would come within the purview of Order XLVII Rule 1 CPC.

However, even if both the documents are considered for review of the judgment, the same would not have the effect of altering the judgment and order passed by this Court on 24.06.2026. The registration certificate obtained by the father of the petitioner even if considered to be a new and important matter or evidence sequeling in review, the same does not have the potentiality to establish the fact that the petitioner is the son of the Late Baishnab Charan Nath, in absence of other relevant documents. The petitioner has also prayed for review of the judgment and order on the ground that 1985 voters’ list was obtained, but the same also cannot establish the petitioner’s link with Late Baishnab Charan Nath, as his father, due to the fact that in the newly discovered 1985 voters’ list, the name of the projected mother and other siblings of the petitioner were reflected but not the projected father of the petitioner. Neither there were any documents showing the link between the projected mother and projected siblings of the petitioner. To prove the linkage under the Foreigners’ Act, 1946, an individual must establish a direct bloodline connection to an th Indian ancestor, whose name appears in the documents prior to 25 of March, 1971. Since in the present case, the linkage could not be established by the petitioner to his projected father, Late Baishnab Charan Nath, the present review application cannot be allowed. However, the inadvertent mistakes that had occurred in the judgment and order dated 24.06.2026, stands corrected as stated above. This Judgment be made a part of the Judgment and Order dated 24.06.2026, passed in WP(C) No. 3940 of 2018.

It is further reiterated that the petitioner is afforded the liberty to file appropriate application under the Citizenship Amendment Act (CAA), 2019, wherein he be allowed to produce the original registration certificate acquired by his projected father in the year 1968, as well as the voters’ list of 1985 showing his name along with his projected mother and projected other siblings as mentioned above.

Accordingly, this review petition stands disposed of.