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TMI Blog2024 (7) TMI 1391X X X X Extracts X X X X X X X X Extracts X X X X ..... nal, Lucknow, whereby the Tribunal has rejected the second appeal of the revisionist and upheld the order of first appellate authority dated 11.02.2016. 3. Learned counsel for the revisionist has submitted that the revisionist has assailed the order dated 07.09.2017 passed by the Tribunal on the ground that on the date fixed, the counsel of the revisionist/appellant could not appear before the Tribunal and only on hearing the representative of the State, the second appeal was decided. The Tribunal has further recorded that despite information and service being sufficient upon the revisionist, no one had appeared and accordingly the Tribunal was proceeding to decide the case on merits. 4. The question raised by the revisionist in the prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay make an order that the appeal be dismissed. 7. It is in the aforesaid circumstances, it was submitted that in case the appellant does not appear and only the State appeared before the Commercial Tax Tribunal, the Tribunal should have dismissed the appeal in default rather to proceed to pass an order on merits of the case only after hearing the State - opposite parties. He further relied upon the judgement of the Supreme Court in the case of Benny D'Souza & Ors. Vs. Melwin D'Souza & Ors.; S.L.P. (C) No.23809 of 2023, wherein though the Supreme Court was interpreting the provisions of Order XLI Rule 17 of the Code of Civil Procedure, and was of the view that where the appellant does not appear, the court can only dismiss the appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, the High Court had no option but to pass the impugned judgment and that there is no merit in the appeal. Having heard learned senior counsel for the appellants and learned counsel for the respondents, at the outset, we extract Order XLI Rule 17 of the CPC which reads as under: "17. Dismissal of appeal for appellant's default :- (1) Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed. Explanation. - Nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits." The Explanation categorically states that if the appellant does no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... points for determination, (b) the decision thereon, and (c) the reasons for such decision." 10. He relying upon Rule 63 (4) of the U.P. Value Added Tax Rules, 2008 submits that if despite proper service of the notice either party is not present, the appeal may be heard and decided ex parte and it was submitted that considering the Rules 63(4) of the U.P. Value Added Tax Rules, 2008, it was open for the Tribunal to proceed to consider and decide the appeal preferred by the revisionist ex parte in accordance with the U.P. Value Added Tax Rules, 2008 and hence, no illegality was committed by the Tribunal while considering and deciding the appeal preferred by the revisionist in his absence. 11. Considering the rival submissions of learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocedure. The word 'ex parte' occurs in Order IX Rule 6 (a) of the Code of Civil Procedure, where only the plaintiff appears and defendant does not appear and accordingly in the aforesaid circumstances, the proceedings are conducted "ex parte". The word 'ex parte' does not appear in Order IX Rule 8, which in a situation where defendant only appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim or part thereof. Accordingly the word 'ex parte' can be given its natural meaning as appearing in the Code of Civil Procedure and certainly the Tribunal can proceed to consider and decide the case ex parte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial function will be able to justify their existence and carry credibility with the people by inspiring confidence in the adjudicatory process." 15. The other concern raised before us was that there is no provision for setting aside the ex parte order in such a situation where the Tribunal proceeds to allow the appeal ex parte in absence of the defendant. In this regard, reliance was placed upon a judgement of a Coordinate Bench of this Court passed in M/s Ram Sewak Coal Depot, Deori, Mirzapur Vs. The Commissioner of Trade Tax, U.P, Lucknow; 2003 NTN (Vol.22)- 341, wherein interpreting the provisions of Section 22 of the U.P. Value Added Tax Act, 2008, which is pari materia with provision of Section 31 of the U.P. Value Added Tax Act, 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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