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Shalimar Furnishers Vs. the State of Uttar Pradesh - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAllahabad High Court
Decided On
Case Number Sales Tax Reference No. 251 of 1972
Judge
Reported in[1975]36STC451(All)
AppellantShalimar Furnishers
RespondentThe State of Uttar Pradesh
Appellant Advocate Sadiq Ali, Adv.
Respondent Advocate Standing Counsel
Excerpt:
.....of dismissal for default when it was satisfied that there was in fact no service of notice. the judge (revisions), sales tax, came to the conclusion that the report that the assessee had been served was patently erroneous ;clearly this is a case of a mistake apparent on the record, and so the judge (revisions), sales tax, had jurisdiction to rectify it by finding that the assessee had not been served and giving a consequential effect to this finding by setting aside the revisional order which was passed in the absence of the assessee. 203 ;halsbury's laws of england (hailsham edition), volume 19, page 263. 4. if an order has been signed by inadvertence or failure of memory when it was intended that it should not be signed at the stage, the court or judge may recall the order :jai..........the assessee filed a revision. on the date fixed for its hearing the assessee was absent. the judge (revisions), sales tax, read the appellate order and felt that there was no room for interference. on this ground the revision was dismissed. thereafter the assessee made an application for the setting aside of the order disposing of the revision. the judge (revisions), sales tax, held :the learned counsel for the assessee has contended that as there was no service at all on the assessee, ex parte revisional order could not be passed. the particular notice alleged to have been taken by the assessee has been produced and i am surprised how it was interpreted on the basis of the endorsement made that the assessee had been served. the report clearly shows that the proprietor did not.....
Judgment:

Satish Chandra, J.

1. Aggrieved against an appellate order the assessee filed a revision. On the date fixed for its hearing the assessee was absent. The Judge (Revisions), Sales Tax, read the appellate order and felt that there was no room for interference. On this ground the revision was dismissed. Thereafter the assessee made an application for the setting aside of the order disposing of the revision. The Judge (Revisions), Sales Tax, held :

The learned counsel for the assessee has contended that as there was no service at all on the assessee, ex parte revisional order could not be passed. The particular notice alleged to have been taken by the assessee has been produced and I am surprised how it was interpreted on the basis of the endorsement made that the assessee had been served. The report clearly shows that the proprietor did not receive it. No service by affixation was made. I am thus satisfied that the order passed should not be allowed to sustain.

2. The Judge (Revisions), Sales Tax, relied upon the case of Sri Bhagwan Radha Kishan v. Commissioner of Income-tax, U.P. : [1952]22ITR104(All) , in support of the proposition that there was inherent jurisdiction in the Tribunal to set aside the order of dismissal for default when it was satisfied that there was in fact no service of notice. On this view, the application was allowed and the revision was restored to its original number.

3. At the instance of the Commissioner, the Judge (Revisions), Sales Tax, has referred the following question of law :

Whether, on the facts and in the circumstances of the case, the Additional Judge (Revisions) was legally justified to set aside his own ex parte revisional order passed on merits and to restore it to its original number for disposal de novo ?

4. Section 22 of the U. P. Sales Tax Act provides that 'the assessing, appellate, revising or additional revising authority may at any time within three years from the date of any order passed by it rectify any mistake apparent on the record'. The question whether the notice was validly served upon the assessee was one of fact that had to be determined by the revising authority before the revision could be taken up for disposal. In the present case, the report that the assessee has been served was challenged on the ground that it was completely erroneous. The Judge (Revisions), Sales Tax, came to the conclusion that the report that the assessee had been served was patently erroneous ; clearly this is a case of a mistake apparent on the record, and so the Judge (Revisions), Sales Tax, had jurisdiction to rectify it by finding that the assessee had not been served and giving a consequential effect to this finding by setting aside the revisional order which was passed in the absence of the assessee.

5. In relation to inherent powers possessed by the Tribunal having the function of deciding disputes judicially, a Division Bench of this Court in Debi Prasad v. Sri Khelawan 1066 A.L.J. 18, laid down the law as follows:

As regards the inherent power of courts of law to modify or set aside their orders, the law may be stated thus:

As a general rule no court or judge has power to rehear, review, alter or vary any judgment or order after it has been entered or drawn up respectively : see Halsbury's Laws of England (Hailsham Edition), Volume 19, page 260 ; see Order 20, Rule 4, of the Code of Civil Procedure.

6. In Drew v. Witts, Exparte Martin [1891] 1 Q.B.D. 450, it was stated by Lord Esher, M. R. : 'No court has such a power of setting aside an order which has been properly made, unless it is given by statute.' The same view was expressed in Hession v. Jones [1914] 2 K.B. 421, Charles Bright & Co. Ltd. v. Seller [1904] 1 K.B. 6, Baij Nath Ram Goenka v. Nand Kumar (1913) I.L.R. 40 Cal. 552 and Nanak Chand Shadi Ram v. Mahabir : AIR1935All408 .

7. This rule is based on the principle of finality of litigation : Flower v. Lloyd (1879) 10 Ch. D. 327 (333).

8. But the rule is subject to certain qualifications :

1. Until a judgment or order has been delivered and signed, there is inherent in every court the power to vary its own orders so as to carry out what was intended and to render the language free from doubt, or even to withdraw the order so that the decision may be reconsidered : Halsbury's Laws of England (Hailsham Edition), Volume 19, page 261; Lawrie v. Lees (1881) 7 App. Cas. 19 (35).

2. After the judgment or order has been entered or drawn up or signed, there is power both under Section 152 of the Civil Procedure Code, and inherent in the judge who gave or made the judgment or order to correct any clerical mistake or error arising from any accidental slip or omission so as to do substantial justice and give effect to his meaning and intention : Lawrie v. Lees (1881) 7 App. Cas. 19 (35).

3. If an order or judgment has been made or judgment entered without notice to a party when that party had the right to be heard the court or judge may set it aside : The Bolivier [1916] 2 A.C. 203 ; Halsbury's Laws of England (Hailsham Edition), Volume 19, page 263.

4. If an order has been signed by inadvertence or failure of memory when it was intended that it should not be signed at the stage, the court or judge may recall the order : Jai Karan v. Panchaiti Akhara : AIR1933All49 .

5. Where a decree has been passed against a dead person, the order may be vacated and the case reheard : Debi Bux Singh v. Habibi Shah (1913) I.L.R. 35 All. 331. The same rule applies to an order passed against a company which has already been dissolved or which was non-existent: Lazard Brothers & Co. v. Barque Industrialle de Moscow [1932] 1 K.B. 617 (624).

6. A court has larger power of modifying or setting aside interlocutory orders than it has in respect of final orders. Thus an order for sale of unsalable property may be set aside: Tafazzul Husain v. Raghunath Prasad 14 M.I.A. 40.

9. It will thus be seen that if an order has been made without notice to a party, when that party has a right to be heard, the court or the judge has inherent jurisdiction to set it aside. In the present case, it cannot be gainsaid that the assessee has a right to be given notice of the date of hearing. Here the finding of fact is that the notice was not validly served. In our opinion, the Judge (Revisions) had inherent jurisdiction to set aside the order.

10. In the result, the question referred to us is answered in the affirmative, in favour of the assessee. The assessee will be entitled to costs, which we assess at Rs. 100.


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