9911796707
TMI Blog1996 (9) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... teen in number, analogously and is thus being considered in this common order. Shunning prolixity, we may put the prologue. Dissatisfied by refusal of the Tribunal to state the case and refer the proposed question or questions under section 256(1) of the Income-tax Act, 1961 (for short, "the Act"), the applicant filed miscellaneous civil cases under section 256(2) of the Act which suffered mortality on account of non-appearance and failure to take necessary steps. Right at the threshold it may be stated that the miscellaneous civil cases, dismissed in default, were registered on applications submitted under section 256(2) of the Act. The factual matrix lies in a narrow compass. Miscellaneous Civil Case No. 368 of 1996 is filed for res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entical sets Miscellaneous Civil Case No. 376 of 1996 is filed for restoration of Miscellaneous Civil Case No. 432 of 1994 which was dismissed on August 29, 1996, in default of appearance and on failure to pay process fee ; Miscellaneous Civil Case No. 377 of 1996 is filed for restoration of Miscellaneous Civil Case No. 340 of 1993 which was dismissed on August 29, 1996, in default of appearance and on failure of payment of provident fund and supply of copy ; Miscellaneous Civil Case No. 378 of 1996 is filed for restoration of Miscellaneous Civil Case No. 552 of 1994 which was dismissed on August 26, 1996, in default of appearance as well as on failure to pay process fee and supply of copy ; Miscellaneous Civil Case No. 379 of 1996 is filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oint is settled in the context of the old Act, i.e., Indian Income-tax Act, 1922, also. In Jaipur Mineral Development Syndicate v. CIT [1977] 106 ITR 653 (SC), it is held that : " In exercising inherent power, the courts cannot override the express provisions of law. Where, however, as in the present case, there is no express or implied prohibition to recalling an earlier order made because of the absence of the party and to directing the disposal of the reference on merits, the courts, in our opinion, should not be loath to exercise such power provided the party concerned approaches the court with due diligence and shows sufficient cause for its non-appearance on the date of hearing." Power is thus available to "recall" an order but on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the failure of the plaintiff to pay the court-fee or postal charges, (if any), chargeable for such service, or to present copies of the plaint or concise statements, as required by rule 9 of Order VII, the court may make an order that the suit be dismissed : " "4. Plaintiff may bring fresh suit or court may restore suit to file.--Where a suit is dismissed under rule 2 or rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit ; or he may apply for an order to set the dismissal aside, and if he satisfies the court that there was sufficient cause for such failure as is referred to in rule 2, or for his non-appearance, as the case may be, the court shall make an order setting aside the dismissal and shall appoint a da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the party in default. A lis has to be prosecuted without fault and default. The prayer for recall should be backed by cause considered sufficient. Absent this, the answer is bound to be "monosyllabic no". So the core question imprimis is whether the applications under consideration show sufficient cause ? We notice that the applications are signed by counsel, Shri Vivek Sharan, on behalf of the applicant, but the instrument of his appointment as a pleader was never filed in the cases dismissed in default and on failure. Moreover, the application in each case contains an averment that senior counsel had gone out of country to Helsinki (Finland) to attend Law Association's Conference as Indian Delegate. It is a trite position that senior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udicial contro versies as it must in other spheres of human activity. " In the cases on hand, filed between 1992 and 1995, the applicant, despite adjournment and caution in some cases, took no steps to pay the process fee or take other necessary steps. This manifested gross negligence. These applications are now filed without even pleading, much less offering any material in support of sufficient cause. These cases, thus, reflect gross negligence. There is failure on the part of the applicant to show due diligence and comply with the directions issued by this court. Law does not permit a state of hibernation of cases in this manner. We may, however, add that in the face of prolonged failure to take steps, we would have found it rather ..... X X X X Extracts X X X X X X X X Extracts X X X X
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