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TMI Blog2024 (10) TMI 1165X X X X Extracts X X X X X X X X Extracts X X X X ..... ner, Grade - II (Appeal - 5), Commercial Tax, whereby he has rejected the appeal of the petitioner and upheld the order of adjudicating authority dated 26.07.2021. 3. Learned counsel for the petitioner has submitted that the impugned order dated 18.12.2023 has been passed ex-parte by the appellate authority on the ground that on the date fixed, the counsel of the appellant could not appear before the appellate authority and neither did anyone appear on behalf of the State and the appeal was decided on merits. The appellate authority has further recorded that despite information and service being sufficient upon the appellant, no one had appeared and accordingly the appellate authority proceeded to decide the case on merits. 4. The questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earing, the Court may 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. 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 appeal for want of prosecution and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 not appear when the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Authority shall, after making such further inquiry as may be necessary, pass such order, as it thinks just and proper, confirming, modifying or annulling the decision or order appealed against but shall not refer the case back to the adjudicating authority that passed the said decision or order: xxx xxx xxx xxx (12) The order of the Appellate Authority disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reasons for such decision." 10. The specific statutory mandate is that after hearing the appellant, the Appellate Authority is to make further enquiry, if found necessary and pass such orders as it thinks just and proper, confirming, modifying or annuling the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ufacturing Company of India Ltd. v. Union of India, (1976) 2 SCC 981, gave directions to the administrative authority and tribunals exercising quasi-judicial powers. The Court observed as under: "If courts of law are to be replaced by administrative authorities and tribunals, as indeed, in some kinds of cases, with the proliferation of Administrative law, they may have to be so replaced, it is essential that administrative authorities and tribunals should accord fair and proper hearing to the persons sought to be affected by their orders and give sufficiently clear and explicit reasons in support of the orders made by them. Then alone administrative authorities and tribunals exercising quasi-judicial function will be able to justify their ..... X X X X Extracts X X X X X X X X Extracts X X X X
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