# M/S Rajdhani Arms Corporation, Lucknow Revisionist v. Commissioner of Commercial Tax U.P., Lucknow Opp. Party

- **Citation:** (2024) 7 ILRA 712
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-15
- **Case number:** Sales/Trade Tax Revision No. 31 of 2023
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-rajdhani-arms-corporation-lucknow-revisionist-v-commissioner-of-commercial-54542
- **Pages:** 6

## Headnote

A. Civil Law-(Code of Civil Procedure1908-Order 9 Rule 6(1)(a), Order 9 Rule 8,
Order 41 Rule 17)- The word 'ex parte' occurs
in Order IX Rule 6 (a) of the CPC, where only
the plaintiff appears and defendant does not
7 All. M/S Rajdhani Arms Corporation, Lucknow Vs. Commissioner of Commercial Tax U.P.,
 Lucknow
713
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 CPC 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.

B. 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 12 & 13)

Impugned
order
set
aside
matter
remanded. (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 Co. of
India Ltd. Vs U.O.I., (1976) 2 SCC 981

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

## Text

712 INDIAN LAW REPORTS ALLAHABAD SERIES
the case Committee of Management
Versus Deputy Direction of Education:
2006 LCD 1328, in which a Division
Bench of this Court had relied upon a
decision of the Hon'ble Supreme Court in
Dhirajlal Girdharlal versus CIT: 1954
SCC OnLine SC 46, wherein it was held
that: -

"8. ...It is well established that
when a court of fact acts on material,
partly relevant and partly irrelevant, it is
impossible to say to what extent the mind of
the court was affected by the irrelevant
material used by it in arriving at its finding.
Such a finding is vitiated because of the use
of inadmissible material and thereby an
issue of law arises."

75.

However,
the
aforesaid
proposition of law has no application to the
facts of the present case, where the findings
of the Courts below are based on relevant
material and the same do not suffer from
any perversity or illegality, as is apparent
from the discussion made in the preceding
paragraphs.

76. Thus even if the petitioner had
become a lessee of the land through the
lease-deed dated 06.07.1951 - which she
could not establish, the State continued to
be the proprietor of the land in question,
which was recorded as waste land in the
Khewat, and the State had the power to
notify the land as a reserve forest.

77. In view of the foregoing
discussion, I am of the considered view that
the impugned judgment and order dated
23.06.1982 passed by the Forest Settlement
Officer, Gonda in Case No.1129 under
Section 6 of the Forest Act and the
judgment and order dated 28.03.1985
passed by the District Judge, Gonda in
Misc. Revenue Appeal No.11 of 1982 do
not suffer from any illegality or infirmity
warranting any interference by this Court.
The Writ Petition filed challenging the
validity of the aforesaid orders lacks merits
and the same is dismissed. The parties will
bear their own costs of litigation.

78. Before parting with the case, the
Court puts on record its appreciation for the
assistance provided by the learned Counsel
for the parties in this case, specially the
assistance
provided
by
the
learned
Additional Chief Standing Counsel for the
State Sri. Arya Shreshth Tiwari, who has
placed the relevant provisions of the law in
an
elaborate
manner
and
has
his
submissions
with
relevant
case-laws,
enabling the Court to arrive at this decision.
----------
(2024) 7 ILRA 712
REVISIONAL JURISDICTION
ORIGINAL SIDE
DATED: LUCKNOW 15.07.2024

BEFORE

THE HON'BLE ALOK MATHUR, J.

Sales/Trade Tax Revision No. 31 of 2023

M/S Rajdhani Arms Corporation, Lucknow
 ...Revisionist
Versus
Commissioner of Commercial Tax U.P.,
Lucknow ...Opp. Party

Counsel for the Revisionist:
Anand Dubey

Counsel for the Opp. Party:
C.S.C.

A. Civil Law-(Code of Civil Procedure1908-Order 9 Rule 6(1)(a), Order 9 Rule 8,
Order 41 Rule 17)- The word 'ex parte' occurs
in Order IX Rule 6 (a) of the CPC, where only
the plaintiff appears and defendant does not
7 All. M/S Rajdhani Arms Corporation, Lucknow Vs. Commissioner of Commercial Tax U.P.,
 Lucknow
713
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 CPC 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.

B. 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 12 & 13)

Impugned
order
set
aside
matter
remanded. (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 Co. of
India Ltd. Vs U.O.I., (1976) 2 SCC 981

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

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

1. Heard Shri Anand Dubey, learned
counsel for the revisionist as well as
learned Standing Counsel for the opposite
party and perused the record.

2. By means of the present revision,
the revisionist has challenged the order
dated
07.09.2017
passed
by
the
Commercial
Tax
Tribunal,
Lucknow,
whereby the Tribunal has rejected the
second appeal of the revisionist and upheld
the order of first appellate authority dated
11.02.2016.

3. Learned counsel for the
revisionist has submitted that the revisionist
has assailed the order dated 07.09.2017
passed by the Tribunal on the ground that
on the date fixed, the counsel of the
revisionist/appellant
could
not
appear
before the Tribunal and only on hearing the
representative of the State, the second
appeal was decided. The Tribunal has
further recorded that despite information
and service being sufficient upon the
revisionist, no one had appeared and
accordingly the Tribunal was proceeding to
decide the case on merits.

4. The question raised by the
revisionist in the present revision is as to
whether in absence of counsel of the
revisionist/appellant, the Commercial Tax
Tribunal can proceed to consider and
decide the appeal 'ex parte' in absence of
the revisionist/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 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
714 INDIAN LAW REPORTS ALLAHABAD SERIES
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 only after hearing the
State - opposite parties. 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.
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
7 All. M/S Rajdhani Arms Corporation, Lucknow Vs. Commissioner of Commercial Tax U.P.,
 Lucknow
715
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 Tax Rules, 2008 itself provides for
the situation and conditions for hearing in
absence of appearance of the appellant. He
submits that according to Rule 63(4) and
(5) of the U.P. Value Added Tax Rules,
2008 provides as follows:

"(4) On the date of hearing, if all
the relevant records of appeal have been
received, the parties shall be given
reasonable opportunity of being heard and
the appellate authority or the Tribunal, as
the case may be, may after examining all
the relevant records, decide the appeal:

Provided that if, despite proper
service of the notice either party is not
present, the appeal may be heard and
decided ex prate.
 (5) The judgment in appeal shall
be in writing and shall state ?

(a) the points for determination,

(b) the decision thereon, and

(c)
the
reasons
for
such
decision."

10. He relying upon Rule 63 (4) of the
U.P. Value Added Tax Rules, 2008 submits
that if despite proper service of the notice
either party is not present, the appeal may
be heard and decided ex parte and it was
submitted that considering the Rules 63(4)
of the U.P. Value Added Tax Rules, 2008,
it was open for the Tribunal to proceed to
consider and decide the appeal preferred by
the revisionist ex parte in accordance with
the U.P. Value Added Tax Rules, 2008 and
hence, no illegality was committed by the
Tribunal while considering and deciding
the appeal preferred by the revisionist in his
absence.

11. Considering the rival submissions
of learned counsel for the parties, it is
noticed that on one hand, the general law of
land enshrined in the Code of Civil
Procedure provides that in absence of
plaintiff/appellant, the suit or appeal should
be dismissed for want of prosecution, while
it was contended by learned Standing
Counsel that as per Rule 63 of the U.P.
Value Added Tax Rules, 2008, it is open
for the Tribunal to consider and decide the
appeal on merits even where despite of
service of summons, the appellant does not
appear before the Tribunal. This Court has
given due consideration to the rival
716 INDIAN LAW REPORTS ALLAHABAD SERIES
contentions and for the reasons given
below, this Court is of the considered view
that where the appellant does not appear
before the Tribunal, the appeal should be
dismissed for want of prosecution rather
than deciding the same on merits. Proviso
to Rule 63 (4) of the U.P. Value Added Tax
Rules, 2008 provides that if despite proper
service of the notice either party is not
present, 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 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.

13. 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.

14. 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."

15. The other concern raised before us
was that there is no provision for setting
aside the ex parte order in such a situation
7 All. Smt. Savitri Devi Vs. Union of India & Ors.
717
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 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.

16. In light of the above, the impugned
order dated 07.09.2017, whereby the Tribunal
has proceeded to decide the appeal preferred
by the revisionist in his absence, is held to be
illegal and arbitrary and accordingly set aside
and the matter is remitted back to the
Tribunal 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 Tribunal 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.

17. With the aforesaid observations, the
revision is disposed of.

18. The revisionist undertakes to
cooperate in the proceedings before the
Tribunal.
----------
(2024) 7 ILRA 717
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.07.2024

BEFORE

THE HON'BLE SHEKHAR B. SARAF, J.

Appeal U/S 37 of Arbitration And
Conciliation Act 1996 No. 210 of 2023

Smt. Savitri Devi ...Appellant
Versus
Union of India & Ors. ...Respondents

Counsel for the Appellant:
Sri Rahul Agarwal, Ms. Akashi Agarwal

Counsel for the Respondents:
Sri Vaibhav Tripathi

A. Arbitration and Conciliation Act, 1996Section 37-challenged to-patent illegalityFair compensation - In the present case,
the appellant's arguments regarding the
valuation
of
land
were

crucial
to
determining
the
appropriate
compensation-the arbitrator ignored the
arguments and awarded compensation
only for building despite recording the
argument-The award suffers from patent
illegality the arbitrator overlooked this
error and deprived the appellant of a fair
and just resolution-Since the award was
granted in the year 2008, the latest Apex
Court judgment in Tarsem Singh cannot
be allowed to claim solatium or interestThe matter is remitted back to recalculate
the compensation for land in accordance
with law.(Para 1 to 30)

B. When an arbitral tribunal fails to
consider the issue raised by the parties
and provides no reason, it erodes the
credibility of arbitral award. The concept
of patent illegality, in the context of
arbitral awards, refers to an evident and
manifest error that goes to the very root
of the matter. It implies a fundament flaw