2019 (7) TMI 323 - HC - VAT and Sales Tax

Review of recall of the judgement - non appearance of respondent counsel - clerk of company received the paper/order from court but skipped to inform the director or authorised person - order passed by Court dated 30.08.2018 - HELD THAT - Having gone through the averments on record, we are inclined to give one opportunity to the respondent to appear and make good his submissions. The judgement and order passed by this Court dated 30.08.2018 in the Special Civil Application No.1889 of 2017 is hereby recalled - petition is ordered to be restored to its original file.

Summary

Issues: Application for recall of judgment due to non-appearance during main matter hearing.

Analysis:
1. The application for recall of judgment was filed by the original respondent, seeking to set aside the judgment and order passed by the Court in a Special Civil Application. The ground for seeking recall was the non-appearance of the respondent's counsel during the final hearing of the main matter.

2. The main matter involved a challenge by the State Government against a judgment passed by the Gujarat Value Added Tax Tribunal. The Court, after hearing the State's counsel, passed an order clarifying that the determination order may bind the department but would not bind the assessee in question. The petition was disposed of based on the materials on record.

3. The respondent's counsel submitted that due to reasons beyond his control, he was unable to be present during the main matter hearing. The counsel explained that the papers served by the Court were not promptly delivered to the authorized personnel of the respondent company, leading to their non-appearance in the proceedings.

4. Citing the case of Vishnu Agarwal vs. State of U.P., the Supreme Court's distinction between review and recall jurisdiction was highlighted. The Court emphasized that a recall petition aims to set aside an order passed without giving an opportunity of hearing to an affected party, without delving into the merits of the case.

5. Referring to the case of State of Punjab vs. Davinder Pal Singh Bhullar, the Court reiterated that orders pronounced without jurisdiction, in violation of natural justice, or without giving an opportunity to the affected party can be recalled. The power of recall is distinct from the power to alter or review a judgment.

6. After hearing both parties and considering the circumstances, the Court decided to grant the respondent another opportunity to appear and present submissions. Consequently, the judgment and order dated 30.08.2018 were recalled, and the petition was ordered to be restored to its original file. The application for recall was disposed of, and the rule was made absolute.

7. The Registry was instructed to notify the Special Civil Application for final hearing once again, allowing for a fresh opportunity for both parties to present their arguments before the Court.