TMI Blog2002 (3) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 of 2001 (see [2001] 251 ITR 540 (MP)) out of which this application arises. The said I.T.A. No. 24 of 2001 which was an appeal under section 260A of the Income-tax Act, 1961, came up for hearing on the question of admission before a Division Bench of this court on July 9, 2001, in motion hearing. None appeared for the applicant when the case was called on for hearing. This court perused the record of the case, i.e., I.T.A. No. 24 of 2001 (see [2001] 251 ITR 540 (MP)), and by an impugned order dated July 11, 2001, dismissed the appeal in limine, It is this dismissal which has given rise to the filing of this application. In substance, the application for recalling of the impugned order is founded on the allegations that counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an appeal on the merits, yet the same has to be treated as a dismissal in default attracting the provisions of Order 41, rule 19 of the Civil Procedure Code. Having heard learned counsel for the appellant and having perused the record of the case, we are inclined to allow this application and recall the impugned order, thereby restoring I.T.A. No. 24 of 2001 (see [2001] 251 ITR 540 (MP)), to its file for hearing on admission. In our considered opinion, the cause shown in the application (I.A. No. 796 of 2002) made under Order 41, rule 19 of the Civil Procedure Code does constitutes a sufficient cause within the meaning of Order 41, rule 19, which prevented counsel from appearing on July 9, 2001, when the appeal was called on for heari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiff or the appellant does not appear when the case is called on for hearing. This legal position is made luculent by the newly added Explanation to rule 17(1) of Order 41 of the Civil Procedure Code, which clearly lays down that the order of dismissal of an appeal passed under sub-rule (1) shall not be construed to have been passed on the merits. Under these circumstances, even if the suit or appeal is dismissed by the court on the merits, nevertheless, the plaintiff or the appellant as the case may be shall have a right to invoke the provisions of Order 9 or/and Order 41, rule 19, treating the impugned order to be an order passed in default. It being a settled principle of law that a right conferred on a litigant by the Legislature cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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