2008 PLP (Trib (PTD)

SYED SULTAN AHMED (MEMBER (JUDICIAL)).

Short of unnecessary details, the petitioner-company filed an appeal to assail the validity of Order-in-Original No.5 of 2004, dated 11-2-2004 passed by Collector (Adjudication) Rawalpindi. It was attended by Bench-I of this Tribunal where it was registered at No.76/2004. The Division Bench on 7-10-2004 admitted this appeal for regular hearing. As per record of original file it was 13-1-2005 when none appeared on behalf of the appellant-company whereas D.R. was marked present with Shamsul Qamar, Senior Consultant. After noting the attendance and without hearing either side, judgment was reserved. After this event of 13-1-2005 the judgment was announced on 22-6-2005 vide which the appeal was dismissed on merits. It was in the above background that the A appellant company filed instant C.M. application for realizing of order, dated 22-6-2005 with the following prayer:

"In the light of aforesaid submission it is prayed that by following the principle of natural justice and propriety, the appellant order may please be recalled and the appellant may kindly be given an opportunity of being heard before deciding the appeal afresh." The above-referred C.M. was registered in No.Miscellaneous.48/ST/lB of 2006. Honourable Chairman CESTAT vide his order, dated 5-9-2007 was pleased to transfer this matter along with record of original appeal to this Bench (Bench-II Islamabad) for disposal.

2. We have attended the arguments of both the sides at considerable length. Sajid Ijaz Hotiana Advocate learned counsel for the petitioner at the very outset contended that the learned Bench which was seized of this matter was not competent to decide the appeal in the absence of the appellant, though not conceded, the only possible order was to dismiss the appeal for non-prosecution. He placed reliance on dictum of law laid down in AIR 1929 Cal. 475, AIR 1961 Patna 299, AIR 1962 Punjab 82 and PLD 1976 .Kar.

268. His next argument was that in such a situation the remedy is application for restoration and not appeal. He further added this Tribunal has power to recall its order passed ex parte. He referred sub-rule (4) of Rule 21 of the Customs, Excise and Sales Tax Appellate Tribunal (Procedure) Rules, 2006 and section 21 of the General Clauses Act, 1897. Reliance was also placed on PLD 1972 Lah. 603 and 1990 CLC 1473. He also cited 1996 SCMR 669M, PTR No.1 of 1998 and 2003 CLC 1064. In the last he submitted that in such like a situation a strict view should not be taken to put a party out of Court. That in fiscal matters where an ordinary person is pitted against the State a more liberal approach is to be adopted by the Court because the notion of accrual of valuable rights to an adversary as happens in ordinary case of civil nature is not generally applicable to the matters of Revenue, as on in such cases it is always the State against a citizen. Reliance was placed on 2001 CLC 1689, 1989 SCMR 883 and 2002 PTD 549 by adding that the Courts have always encouraged decision of cases on merit instead on non-suiting the litigants for technical reasons and by making reference to PLD 2003 SC 724, 2007 PTD (Trib.) 795 and 2007 PTD (Trib.) 1919. Consequently, Barrister Masroor Shah, learned counsel for respondent conceded that the appeal could not have been decided on merits in the absence of the appellant particularly when the respondent in attendance was also not heard. However, he pressed it with vehemence that the proper remedy for petitioner-appellant was to file an appeal before the Honourable High Court and that the instant C.M. seeking recalling of such order and restoration of appeal is totally misconceived. He places reliance on a judgment, dated 16-3-2006 of this Tribunal passed in C.M. No.28/ST/IB of 2005.

3. We have considered the arguments advanced by learned counsel for parties and have respectfully perused the case law cited before us. The parties are not at variance on the point that on 15-12-2004, the appeal was simply adjourned to 13-1-2005. Thus it was not clearly fixed for arguments on 13-1-2005. This adjourned date of 13-1-2005 might be a date for further proceedings. Thus this date cannot be styled as a "date of hearing". Word "hearing" implies taking down of evidence or hearing arguments or where question relating to the determination of case is considered. Unless Court was satisfied that it was date of hearing of the lis, it was not permissible to dismiss the same even for non-prosecution. As on 15-12-2004 the appeal was simply adjourned to 13-1-2005 so on the latter date nothing effective and germane to progress of appeal could be intended at productive functioning, constituting a step forward in matter rather than mere fixation of date for formal proceedings. The dictum of law laid down in Allah Ditta v. Aziz L in (PLD 1981 Lah. 508) fortifies this view.

4. Viewing the matter from this angle it becomes abundantly clear that the date of 13-1-2005 was not a "date of hearing" with the consequence that the appeal of present petitioner could not have been dismissed for non-prosecution whereas it was dismissed on merits without hearing any party.

58. Adverting to the other aspect of the matter, we feel no hesitation to hold that the case-law cited by learned counsel for petitioner is fully attracted in facts and circumstances of the present case. The relevant passages from the judgment read asunder:

"By the words "the Court may make an order that the appeal be dismissed" it is meant that the Court may dismiss the appeal or may adjourn it to some other date or pass other order, but the Court is not authorized to consider an appeal in the absence of the appellant and decide it on merits. The law contemplates that the appellate Court must hear both parties to the appeal and then decide it according to its judgment' (AIR 1929 Calcutta 475). "Appellant absent on date of hearing

Respondent heard and appeal dismissed on merits

Order held not proper

Order amounts to dismissal for default under R.17

Appeal may not be restored on showing sufficient cause." (AIR 1961 Patna 299) "Dismissal of appeal on merits when appellant not present on day of hearing

Legality

Appellate Court has no such jurisdiction--Remedy against dismissal in such a case is application for restoration under R.19 and not appeal." AIR 1962 Punjab 82). "Absence of appellant and counsel on day when appeal called on for hearing

Court instead of dismissing appeal in default of appearance, perusing records and dismissing appeal on merits

Held: under O.XLI, R.17 dismissal on merits is not envisaged because under rule 19 of O.XLI the appellant has a right to move for readmission of appeal

If the appellate Court could go into merits of the appeal in absence of the appellant then the consequence could be that the appellate Court may accept the appeal as well, but the language of rule 17 does not make provision for such a judgment the only power being to dismiss the appeal." PLD 1976 Kar. 268.

6. At this juncture we must keep in mind that 13-1-2005 was not a "date of hearing". On the said adjourned date none appeared on behalf of the appellant. Without hearing anyone the appeal was taken up and was dismissed after discussing its merits in a cursory manner. In view of the above cited case-law such a disposal can only be said to be unlawful and unwarranted being contrary to the settled principle of law. At this juncture we shall consider the objection of learned counsel for respondent. He was of the view that in order to avoid such a decision, the proper way was to file an appeal. With respect, we are unable to scribe this view because in view of the above-referred case-law one can well understand that the remedy lies by filing an application for restoration and not appeal. The judgment of this Tribunal cited by him also proceeds on distinguishable facts and has no relevance here. In facts of present case, this forum has not become functus officio, but it retains seizing of the Hs to restore the appeal.

7. The last but not the least is that rules of procedure are not to be too technically applied but are construed to foster cause of justice. Courts have always preferred decision of cases on merits instead of knocking out a party on technical grounds. The Tribunal has powers inherent in it to keep the proceedings in correct and legal parlance.

8. In the sequel, the instant C.M. application is bound to succeed. It is hereby accepted. However, the petitioner shall pay Rs.5000 as costs. As an inevitable corollary of acceptance of his petition, the original appeal is restored for regular hearing which shall now be fixed for hearing for a date under intimation to both the sides by issuance of separate hearing notices under registered post as per rules. C. M. A ./41/Tax(Trib.) Application accepted.