# M/S Archita Tour and Travels v. State of U.P. & Ors

- **Citation:** (2024) 10 ILRA 201
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-10-01
- **Case number:** Writ Tax No. 226 of 2024
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-archita-tour-and-travels-v-state-of-u-p-ors-51118
- **Pages:** 5

## Headnote

Civil Law- Code of Civil Procedure-1908Order XLI Rule 17- 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. (Para 11) (E-15)

List of Cases cited:

## Text

10 All. M/S Archita Tour and Travels Vs. State of U.P. & Ors.
201
direction be issued to the concerned
respondent authorities to decide the interim
application in the pending suit
at an early date.

42.
Counsel
appearing
for
the
petitioners has no objection to the aforesaid
prayer.

43. Learned Additional Chief Standing
Counsel for the State-respondents has
submitted that efforts would be made to
decide the aforesaid interim application in
the pending suit at an early date, and that
an endeavour would be made to dispose of
the application within a period of two
months from date.

44. In view of the aforesaid, it may be
observed that the court concerned would be
expected to make an endeavour to decide
the application for interim relief, in the suit
stated to be pending before it, in
accordance with law, expeditiously and
preferably within a period of two months
from the date of production of a certified
copy of the instant order, without granting
any unnecessary adjournments to either of
the parties, provided there is no other legal
impediment.
----------
(2024) 10 ILRA 201
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.10.2024

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ Tax No. 226 of 2024

M/S Archita Tour and Travels ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Manish Misra, Bhavini Upadhyay, Dileep
Pandey, Gaurav Upadhyay

Counsel for the Respondents:
C.S.C.

Civil Law- Code of Civil Procedure-1908Order XLI Rule 17- 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. (Para 11) (E-15)

List of Cases cited:

1. Benny D'Souza & ors.Vs Melwin D'Souza &
ors.; S.L.P. (C) No.23809 of 2023

2.
Siemens
Engineering
&
Manufacturing
Company of India Ltd. v. Union of India, (1976)
2 SCC 981

3. M/s Ram Sewak Coal Depot, Deori, Mirzapur
Vs The Commissioner of Trade Tax, U.P,
Lucknow; 2003 NTN (Vol.22)- 341

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Shri Manish Misra, learned
counsel for the petitioner as well as Sri
Sanjay Sarin, learned Standing Counsel for
the respondent and perused the record.

2. By means of the present writ
petition, the petitioner has challenged the
order dated 18.12.2023 passed by the
Additional Commissioner, Grade ? II
(Appeal ? 5), Commercial Tax, whereby he
has rejected the appeal of the petitioner and
upheld the order of adjudicating authority
dated 26.07.2021.

3. Learned counsel for the petitioner
has submitted that the impugned order
dated 18.12.2023 has been passed ex-parte
202 INDIAN LAW REPORTS ALLAHABAD SERIES
by the appellate authority on the ground
that on the date fixed, the counsel of the
appellant could not appear before the
appellate authority and neither did anyone
appear on behalf of the State and the appeal
was decided on merits. The appellate
authority has further recorded that despite
information and service being sufficient
upon the appellant, no one had appeared
and accordingly the appellate authority
proceeded to decide the case on merits.

4. The question raised by the petitioner
in the present writ petition is as to whether
in absence of counsel of the appellant, the
appellate authority can proceed to consider
and decide the appeal 'ex parte' in absence
of the appellant. He submits that the
principles with regard to appearance of the
plaintiff 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 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 appear and only the State appeared
before the Commercial Tax Tribunal, the
Tribunal should have dismissed the appeal
in default rather to proceed to pass an order
on merits of the case. He further relied
upon the judgement of the Supreme Court
in the case of Benny D'Souza & Ors. Vs.
Melwin D'Souza & Ors.; S.L.P. (C)
No.23809 of 2023, wherein though the
Supreme
Court
was
interpreting
the
provisions of Order XLI Rule 17 of the
Code of Civil Procedure, and was of the
view that where the appellant does not
appear, the court can only dismiss the
appeal for want of prosecution and not
consider the case on merits.

8. The observation of the Supreme
Court in the aforesaid judgement is quoted
herein-below:

"Leave granted.

The appellants herein are the
plaintiffs who were the appellant in RSA
No.196/2022. The only grievance of the
appellants herein is with regard to the
dismissal of the said appeal vide order
dated 26.09.2023 on merits although the
appellants were not represented inasmuch
as there was no counsel who appeared for
the appellants and the junior counsel for
the appellants submitted that the senior
counsel engaged in the matter, was not
available as his cousin had passed away.
10 All. M/S Archita Tour and Travels Vs. State of U.P. & Ors.
203
Therefore, on account of a bereavement in
the family of the arguing counsel there was
no
representation
on behalf
of
the
appellants before the High Court.

Learned
senior
counsel
appearing for the appellants submitted that
the High Court could have dismissed the
appeal for non prosecution in terms of the
order XLI Rule 17 CPC and particularly
the
Explanation
thereto
instead
of
dismissing the appeal on merits by stating
that no substantial question of law was
made out. Therefore, the learned senior
counsel submitted that the impugned
judgment may be set aside and the matter
may be remanded to the High Court for
consideration on the merits of the appeal.

Per
contra,
learned
counsel
appearing for the respondent supported the
impugned judgment and contended that the
appellants consistently failed to appear
before the High Court and therefore, the
High Court had no option but to pass the
impugned judgment and that there is no
merit in the appeal.

Having heard learned senior
counsel for the appellants and learned
counsel for the respondents, 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. With the above principle in mind,
we have looked at Section 107 of the UP
GST Act. Sub-section (8) of Section 107
requires the Appellate Authority to give an
opportunity of hearing to the appellant and
sub-section
(9)
also
empowers
the
Appellate Authority to adjourn the hearing
at the request of the appellant, if sufficient
cause is shown for the prayer made. The
proviso to sub-section (9) ensures that the
Appellate Authority has sufficient powers
to refuse such adjournment, if it has been
granted three times previously. Sub-section
(10) empowers the Appellate Authority to
permit the appellant to argue any ground,
not set forth in the grounds of appeal, if the
omission was not willful or unreasonable.
We specifically extract sub-section (11)
and (12) of Section 107, without the two
proviso under sub-section (11) :-

"(11) The Appellate Authority
shall, after making such further inquiry as
may be necessary, pass such order, as it
thinks
just
and
proper,
confirming,
204 INDIAN LAW REPORTS ALLAHABAD SERIES
modifying or annulling the decision or
order appealed against but shall not refer
the case back to the adjudicating authority
that passed the said decision or order:

xxx xxx

xxx xxx

(12) The order of the Appellate
Authority disposing of the appeal shall be
in writing and shall state the points for
determination, the decision thereon and the
reasons for such decision."

10. The specific statutory mandate is
that after hearing the appellant, the
Appellate Authority is to make further
enquiry, if found necessary and pass such
orders as it thinks just and proper,
confirming, modifying or annuling the
decision or order appealed against. Such
affirmation, modification or annulment shall
not be an empty formality nor can it be
mechanical, without the consideration of the
grounds
of
appeal.
We
observe
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.

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
affected
by
their
orders
and
give
sufficiently clear and explicit reasons in
support of the orders made by them. Then
alone
administrative
authorities
and
tribunals exercising quasi-judicial function
will be able to justify their existence and
carry credibility with the people by
inspiring confidence in the adjudicatory
process."

13. The other concern raised before us
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,
10 All. Amardeep Kashyap Vs. State of U.P. & Ors.
205
Lucknow; 2003 NTN (Vol.22)- 341,
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 the U.P. Value
Added Tax Act, 2008, which provides for
rectification, this Court has held that
wherein an appeal is decided ex parte, it
shall be open for moving an application for
rectification
of
such
a
situation.
Accordingly, adequate reasons are given
for the defendant for non appearance and
judgement is rendered ex parte, but recall
of order, exercise of rectification has been
provided under Section 31 of the U.P.
Value Added Tax Act, 2008.

14. In light of the above, the
impugned
order
dated
18.12.2023,
whereby the appellate authority has
proceeded to decide the appeal preferred
by the petitioner in his absence, is held to
be illegal and arbitrary and accordingly set
aside and the matter is remitted back to the
appellate authority to decide the matter
afresh after affording an opportunity of
hearing to the parties and considering the
fact that much time due to pendency of the
aforesaid proceedings, has elapsed, the
appellate authority is directed to expedite
the appeal and decide the same within
three months from the date of production
of a certified copy of this order, in
accordance with law.

15. With the aforesaid observations,
the revision is allowed.

16. The petitioner undertakes to
cooperate in the proceedings before the
appellate authority.
----------
(2024) 10 ILRA 205
APPELLATEJURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.10.2024
BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Special Appeal Defective No. 436 of 2024

Amardeep Kashyap ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Om Prakash Mani Tripathi

Counsel for the Respondents:
C.S.C.

(A)
Service
Law
-
Compassionate
Appointment - Uttar Pradesh Dying-inHarness Rules, 1974 - Indian Evidence
Act, 1872 - Section 107 - Burden of
proving death of person known to have
been alive within thirty years, Section 108
- Burden of proving that a person is alive
who has not been heard of for seven years
-Presumption of Civil Death after 7 years
of disappearance - A declaration of civil
death by the civil court under Section 108
of the Indian Evidence Act, 1872 would
not lead to a presumption with regard to
date and time of death unless proven with
evidence - Compassionate appointment
can only be claimed if the death occurred
during service .(Para - 12,19,20,24)

Appellant's father, employed as a peon, went
missing on 25.06.2012 - formal complaint was
lodged on 27.06.2012 - Despite efforts, he could
not be traced - reached age of superannuation
on 30.11.2013 - Appellant filed suit for
declaration of civil death under Section 108 -
civil court declared his father's civil death on
22.04.2022 - but no specific date mentioned -
Subsequently appellant sought compassionate
appointment - which was rejected by authorities
- hence present appeal.
(Para 2-7,12)

HELD: - Appellant's request for compassionate
appointment was rightly rejected since his
father, presumed dead only after a seven-year
period and a civil court declaration, had already