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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 ..... observed so, specifically when the Appellate Authority is empowered to refuse the prayer for adjournment made by an appellate, if on three prior occasions, such adjournment has been allowed, in which case also the Appellate Authority cannot absolve itself from the obligation to conduct such further enquiry as is mandated under sub-section (11) of Section 107. Sub-section (12), it has to be further emphasized, also requires the order of the Appellate Authority disposing of the appeal to be in writing and specifically stating the points for determination, the decision thereon and the reasons for such decision. When an appeal is dismissed for reason only for absence of the appellant or lack of effective prosecution, then the Tribunal should be found to have abdicated its powers and not followed the statutory mandate. Even otherwise, deciding a case ex-parte on merits without giving reasonable opportunity to the parties is blatant violation of rule of Audi alterum partem . In absence of the appellant, the Commercial Tax Tribunal had the authority to dismiss the appeal in default as provided in the Order XLI Rule 17 of the Code of Civil Procedure, 1908 rather than hearing it ex-parte a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntiff or defendant and order to be passed thereon and as to how the court could proceed in the matter of suits and appeals has been provided under the Code of Civil Procedure. 5. He submits that Order IX, Rule 6 (1) (a) of the Code of Civil Procedure provides that, 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 he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondents, 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 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. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is dismissed for reason only for absence of the appellant or lack of effective prosecution, then the Tribunal should be found to have abdicated its powers and not followed the statutory mandate. 11. Even otherwise, deciding a case ex-parte on merits without giving reasonable opportunity to the parties is blatant violation of rule of Audi alterum partem . In absence of the appellant, the Commercial Tax Tribunal had the authority to dismiss the appeal in default as provided in the Order XLI Rule 17 of the Code of Civil Procedure, 1908 rather than hearing it ex-parte and deciding it on merits. 12. In this regard, the Supreme Court in the case of Siemens Engineering Manufacturing 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 affecte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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