Maintainability of application under Order 41 rule 19 of Civil Procedure Code--Non-appearance of counsel of assessee Catch Note:

Due to non-appearance of counsel of appellant appeal under section 260A was dismissed--Appellant filed application for recalling order of High Court, under Order 41, rule 19 as there was sufficient cause for non-apperance of counsel of appellant--Respondent contended that order was passed on merits, therefore, same could not be recalled--Not sustainable--Once it is found that impugned order was passed in absence of appellant or/and his counsel, then it becomes an order having been passed in default of assessee's appearance, thereby entitling appellant for its setting aside by showing sufficient cause for his non-appearance--Therefore, merely because appeal was dismissed by a reasoned order that would not take away right of appellant to apply, for its restoration--Hence, on sufficient cause having been shown by appellant order passed under section 260A is recalled.

Ratio:

Once it is found that impugned order was passed in absence of appellant or/and his counsel, then it becomes an order having been passed in default of assessee's appearance, thereby entitling the appellant for its setting aside by showing sufficient cause for his non-appearance, therefore, merely because appeal was dismissed by a reasoned order that would not take away right of appellant to apply for its restoration--Hence, on sufficient cause having been shown by appellant order passed under section 260A is recalled.

Held:

The cause shown in the application (I. A. No. 796 of 2002) made under Order 41, rule 19 of the Civil Procedure Code does constitutes a sufficient cause within the meaning of Order 41, rule 19, which prevented counsel from appearance, when the appeal was called on for hearing. Indeed there is no reason to disbelieve the affidavit filed by counsel deposing that due to some unavoidable circumstance, he was forced to leave Indore.

The application under Order 41, rule 19, ibid is maintainable by virtue of section 260A(7) and notwithstanding the dismissal of the appeal in limine by a reasoned order. Merely because appeal was dismissed by a reasoned order that would not take away right of appellant to apply for its restoration. In order to decide whether an application under Order 41, rule 19, ibid is maintainable or not, what has to be seen is whether impugned order was passed in default of the appellant's appearance. Once it is found that the impugned order was passed in absence of appellant or/and his counsel, then it becomes an order having been passed in default of his appearance, thereby entitling the appellant for its setting aside by showing sufficient cause for his non-appearance.

Under these circumstances, even if the suit or appeal is dismissed by the court on the merits, nevertheless, the plaintiff or the appellant as the case may be shall have a right to invoke the provisions of Order 9, or/and Order 41, rule 19, treating the impugned order to be an order passed in default. It being a settled principle of law that a right conferred on a litigant by the legislature cannot be taken away by the orders of the court, nor such right can be made dependent upon the nature of the order passed. Once the party to a suit/appeal suffers any order in their absence from the court, the provisions of Orders 9 and 41, rule 19, are attracted to get rid of the orders passed in their default. In such proceedings, the scope of inquiry is whether a good or sufficient cause is made out so as to empower the court to recall the order impugned.

Court has recalled the order impugned only by recourse to the provisions contained in Order 41, rule 19, ibid.

Application:

Also to current assessment year.

Decision:

In favour of appellant.

Income Tax Act 1961 s.260A Civil Procedure Code 1908 Order 41 Civil Procedure Code 1908 r.19 JUDGMENT A.M. Sapre, J.

1. By this application made essentially under Order 41, rule 19, read with Order 47, Rule 1, of the Civil Procedure Code, the applicant seeks for recalling of the order dated July 11, 2001, passed by this court in I. T. A. No. 24 of 2001 (Srinath Bullion Refinery v. CIT [2001] 251 ITR 540). The facts which led to the filing of this application lie in a narrow compass. They need mention in brief.

2. The applicant was the appellant of I. T. A. No. 24 of 2001 (see [2001] 251 ITR 540 (MP)) out of which this application arises. The said I. T. A. No. 24 of 2001 which was an appeal under Section 260A of the Income-tax Act, 1961, came up for hearing on the question of admission before a Division Bench of this court on July 9, 2001, in motion hearing. None appeared for the applicant when the case was called on for hearing. This court perused the record of the case, i.e., I. T. A. No. 24 of 2001 (see [2001] 251 ITR 540 (MP)), and by an impugned order dated July 11, 2001, dismissed the appeal in limine. It is this dismissal which has given rise to the filing of this application.

3. In substance, the application for recalling of the impugned order is founded on the allegations that counsel for the appellant, Shri Jagat Kumar Jain, had to leave for Maheswar on July 6, 2001, all of a sudden to attend his near relative who was ailing. It is alleged that Mr. Jain could not come back to Indore on July 9, 2001, and had to remain at Maheshwar to attend his ailing relative. An affidavit of Mr. Jain is also filed in support of the cause pleaded in the application. It is on this cause, a prayer is made to recall the impugned order as according to applicant, the cause pleaded does constitute a sufficient cause as contemplated under Order 41, rule 19 of the Civil Procedure Code.

4. Heard Shri S. C. Bagadia, learned senior counsel, with Shri D. K. Chhabra, learned counsel, for the applicant.

5. The submission of learned counsel for the applicant was that by virtue of Section 260A(7) of the Income-tax Act, the provisions of the Civil Procedure Code relating to appeals filed in the High Court are made applicable to appeals filed under Section 260A ibid and it is for this reason the application under Order 41, rule 19 of the Civil Procedure Code, is maintainable. Learned counsel urged that since the impugned order was passed in default of the appellant's appearance, the appellant will always be at liberty to apply for its recalling by making an application under Order 41, rule 19 of the Civil Procedure Code notwithstanding the dismissal of appeal on the merits (i.e., by a speaking order). In other words, the submission was that even though the impugned order is a speaking one dismissing an appeal on the merits, yet the same has to be treated as a dismissal in default attracting the provisions of Order 41, rule 19 of the Civil Procedure Code.

6. Having heard learned counsel for the appellant and having perused the record of the case, we are inclined to allow this application and recall the impugned order, thereby restoring I. T. A. No. 24 of 2001 (see [2001] 251 ITR 540 (MP)), to its file for hearing on admission.

7. In our considered opinion, the cause shown in the application (I. A. No. 796 of 2002) made under Order 41, rule 19 of the Civil Procedure Code does constitutes a sufficient cause within the meaning of Order 41, rule 19, which prevented counsel from appearing on July 9, 2001, when the appeal was called on for hearing. Indeed there is no reason to disbelieve the affidavit filed by counsel deposing that due to some unavoidable circumstance, he was forced to leave Indore.

8. We are also inclined to accept the submission of learned counsel for the applicant when he urged that the application under Order 41, rule 19, ibid is maintainable by virtue of Section 260A(7) and notwithstanding the dismissal of the appeal in limine by a reasoned order. In our opinion, merely because the appeal was dismissed by a reasoned order that would not take away the right of the appellant to apply for its restoration. In order to decide whether an application under Order 41, rule 19, ibid is maintainable or not what has to be seen is whether the impugned order was passed in default of the appellant's appearance. Once it is found that the impugned order was passed in the absence of the appellant or/and his counsel, then it becomes an order having been passed in default of his appearance, thereby entitling the appellant for its setting aside by showing sufficient cause for his non-appearance. This court cannot non-suit the appellant simply on the ground that the impugned order being a speaking one, the remedy of the appellant is in appeal. In other words, the scheme of Order 9 which has its application to suits and that of Order 41, Rule 17 and Rule 19, which has its application to appeals do indicate that courts do not possess the power to dismiss the suit or appeal as the case may be on the merits if the plaintiff or the appellant does not appear when the case is called on for hearing. This legal position is made luculent by the newly added Explanation to Rule 17(1) of Order 41 of the Civil Procedure Code, which clearly lays down that the order of dismissal of an appeal passed under Sub-rule (1) shall not be construed to have been passed on the merits. Under these circumstances, even if the suit or appeal is dismissed by the court on the merits, nevertheless, the plaintiff or the appellant as the case may be shall have a right to invoke the provisions of Order 9 or/and Order 41, rule 19, treating the impugned order to be an order passed in default. It being a settled principle of law that a right conferred on a litigant by the Legislature cannot be taken away by the orders of the court, nor such right can be made dependent upon the nature of the order passed. Once the party to a suit/appeal suffers any order in their absence from the court, the provisions of Orders 9 and 41, rule 19, are attracted to get rid of the orders passed in their default. In such proceedings, the scope of inquiry is whether a good or sufficient cause is made out so as to empower the court to recall the order impugned.

9. We may make it clear that we have neither entertained nor allowed the application made by the applicant on any of the grounds taken by the applicant under Order 47, Rule 1 of the Civil Procedure Code. We have recalled the order impugned only by recourse to the provisions contained in Order 41, rule 19, ibid.

10. Accordingly and in view of the aforesaid discussion, the application is allowed. Impugned order dated July 11, 2001, passed in I. T. A. No. 24 of 2001 (see [2001] 251 ITR 540 (MP)), is hereby recalled. As a consequence, I. T. A. No. 24 of 2001 (see [2001] 251 ITR 540 (MP)), is restored to its file. The Registry is directed to list the appeal, i.e., I. T. A. No. 24 of 2001 (see [2001] 251 ITR 540 (MP)), for admission before the appropriate Bench hearing such appeals.