In Absence Of Appellant Or His Lawyer , Appeal Should Be Dismissed In Default Not An Order On Merit : Allahabad High Court

The Court held that in cases where the appellant is not present, the Tribunal must dismiss appeals “for want of prosecution” instead of deciding them on merits ex-parte.

Rule 63(4) of the Uttar Pradesh Value Added Tax Rules, 2008 provides that appeal must be decided after hearing parties and perusing relevant records, however, if after service of notice either party has not appeared, appeal can be decided ex-parte. Rule 63(5) provides that judgment in appeal should include the points of determination, decision on the points and reasons for the decision.

Justice Alok Mathur held that “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.”

Case Background

The question of law for consideration of the Court was whether the Commercial Tax Tribunal can proceed to consider and decide the appeal 'ex parte' in absence of the counsel for the revisionist/appellant.

It was argued that Order IX, Rule 6(1)(a) of CPC if summons were duly served and defendant did not appear, the Court was at liberty to direct hearing of the case ex-parte. Subsequently, the case would be heard and decided on its merits. However, reliance was also placed on Order IX Rule 8 CPC which provides that when defendant is present, but the plaintiff is not present, the suit shall be dismissed.

Accordingly, it was argued that when the counsel for appellant/ appellant himself did not appear, the appeal out to have been dismissed for want of prosecution rather than dismissal on merits.

Counsel for revenue relied on Rule 63(4) to argue that when service of notice is complete and yet either party does not appear, the appeals can be decided ex-parte.

High Court Verdict

The Court observed that the term “ex-parte” has not been defined in the Rules. In Order IX Rule 6 (a) CPC, “ex-parte” is taken to mean where the plaintiff has appeared, but the defendant is absent. It was observed that Order IX Rule 8 CPC which provides for orders in absence of plaintiff does not include the word “ex-parte”.

Accordingly, it was held that ex-parte orders on merit can only be passed in absence of respondent, provided service of notice is complete. In absence of appellant/plaintiff, the case can only be dismissed in default for want of prosecution, held the Court.

“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.”

The Court relied on Siemens Engineering & Manufacturing Company of India Ltd. v. Union of India where the Supreme Court held that administrative tribunals must give fair and proper opportunity of hearing to the parties and record reasons for their decisions.

Accordingly, the ex-parte order was set aside with a direction to the Tribunal to expedite the case and give opportunity of hearing to both parties.

Case Title: M/S Rajdhani Arms Corporation, Lucknow Thru. Propreitor, Seema Sarna v. Commissioner Of Commercial Tax U.P., Commercial Tax Bhawan,Lucknow [SALES/TRADE TAX REVISION No. - 31 of 2023]

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