K.B. Asthana, J. - (1.) I think this is a case in which a temporary injunction pending the suit ought to have been granted otherwise that would result in the frustration of the very object for which the suit was filed. When a person claimed the citizenship of the Union of India and files a suit for declaration, if he were deported by executive order as a non -citizen, if he is later declared to be a citizen after trial then he would hardly have any benefit of the declaration made. Moreover, the deportation during the pendency of the suit itself would amount to a denial of opportunity to the Plaintiff to establish his case. There is indeed a rule that Under Order 39 every case must be judged on the basis of balance of convenience and prima facie nature of the right. Even if it is so, I have no hesitation in holding that in a case where citizenship right is involved, the court should examine the case in the light of the object for which the Plaintiff has come before the civil court and whether that object would be frustrated if the interim injunction was not issued, that should be the guiding principle. I think the order is liable to be set aside and temporary injunction granted.
(2.) THE order of the courts below also suffers from the vice that while considering the application for temporary injunction they have almost pronounced upon the merits of the right itself claimed by the Plaintiff in this suit. Thus without considering the evidence they have almost concluded that the Plaintiff has not acquired the right of citizenship. It was argued by the Standing Counsel that the Central Government had already decided the question of the citizenship of the Plaintiff and that his writ petition Under Article 226 of the Constitution was also dismissed by the High Court. If that be so it is open to the Defendant in this suit to have a preliminary issue struck and satisfy the court who will dismiss the suit But so long as the suit remains pending what I have observed above has to be borne in mind and considering the effect of deportation of a person claiming citizenship, the matter becomes too serious for being treated on mere technicalities.
(3.) FOR the reasons given above, I allow this application in revision, set aside the order of the court below and issue a temporary injunction restraining the Defendants from deporting the Plaintiff to Pakistan during the pendency of the suit. There would be no order for costs.;