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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 ..... the proviso can be interpreted as want of appearance on behalf of the opposite party/defendant and not the appellant/plaintiff - 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 in a situation where only the appellant appears, but the respondent/State does not appear, while in a case, where the appellant does not appear, the only consequence of such a situation would be to dismiss the appeal for want of prosecution and not to enter and decide the case on merits of the controversy. The other concern raised 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 (2) TMI 457 - ALLAHABAD HIGH COURT ], 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Civil Procedure. 5. He submits that according to Order IX, Rule 6(1)(a) of the Code of Civil Procedure, where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then when summons duly served, if it is proved that the summons was duly served, the Court may make an order that the suit shall be heard ex parte. He submits that it is open for the court to continue the hearing of the proceedings in absence of defendant on the merit of the case and suit may proceed ex parte, but according to the Order IX Rule 8 of the Code of Civil Procedure, 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. 6. He further placed reliance on the Order XLI Rule 17 of the Code of Civil Procedure, 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. 7. It is in the aforesaid circumstances, it was submitted that in case the appellant does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 appeal is called for hearing it can only be dismissed for non-prosecution and not on merits. However, the impugned judgment is a dismissal of the appeal on merits which is contrary to the aforesaid provisions and particularly the Explanation thereto. On that short ground alone the appeal is allowed the impugned order is set aside. The RSA No.196/2022 is restored on the file of the High Court. The parties are at liberty to advance arguments on the merits of the case. All contentions are left open. The appeal is allowed and disposed of in the aforesaid terms. No costs. Pending application(s), if any, shall stand disposed of. 9. Learned Standing Counsel on the other hand has opposed the writ petition. He has submitted that the Value Added T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, the appeal may be heard and decided ex parte. 12. The aforesaid proviso though on the face of it provides that in absence of a party to the proceedings, the appeal can be decided by the Tribunal on merits, but the word 'ex parte' used in the proviso can be interpreted as want of appearance on behalf of the opposite party/defendant and not the appellant/plaintiff. The word 'ex parte' has not been defined under the U.P. Value Added Tax Rules, 2008 and accordingly its meaning and definition can be taken from the Code of Civil Procedure. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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