P.D. Mulye, J.
1. The petitioner, who is a sales tax assessee, has filed this petition under articles 226 and 227 of the Constitution of India in the matter of M.P. General Sales Tax Act, 1958.
2. The facts giving rise to this petition, material for the decision of this petition, at this stage, may be stated, in brief, thus : The petitioner who is a registered dealer under the Sales Tax Act is a manufacturer of oil paints, cement paints, etc. The assessment year in question relates to the calendar year of 1977, i.e., for the year 1st January, 1977, to 31st December, 1977. The petitioner submitted its return for the relevant period according to which the gross turnover was Rs. 1,76,08,087.00. The petitioner out of the gross turnover claimed certain deductions out of which some of them were accepted and some were rejected. Turnover trade discount amounting to Rs. 5,49,386 and regular payment performance discount amounting to Rs. 4,16,986 was disallowed as deductions which relate to the relevant period. The petitioner being aggrieved filed first appeal before respondent No. 3 which was rejected on 4th March, 1981. Being dissatisfied he preferred second appeal before respondent No. 2, namely, the Board of Revenue, which is the Sales Tax Tribunal as per annexure D. The said appeal was fixed for final hearing at Gwalior on 5th March, 1982, of which intimation was received by Shri D. J. Dave, Chartered Accountant, Indore, who was representing the petitioner as a counsel.
3. However, as Shri Dave had to complete certain audit work of the Jhabua Dhar Kshetriya Gramin Bank, Jhabua, before 15th March, 1982, and had to go to Jhabua for that purpose; it was not convenient and possible for him to attend the hearing of the appeal before respondent No. 2 on 5th March, 1982. He, therefore, sent a telegram on 2nd March, 1982, to the respondent with a request to adjourn the hearing of the case. The said telegram was confirmed by Shri Dave by his letter of the same date, annexure E. However, the learned Tribunal by an order passed on 5th March, 1982 (annexure G), dismissed the appeal in default of appearance of the petitioner and his counsel on the ground that no ground has been given in the telegram for adjournment.
4. The petitioner's counsel Shri Dave, therefore, submitted an application before respondent No. 2 (annexure H) for restoration of the appeal giving reasons for his inability to attend the case fixed on 5th March, 1982. However, the learned Tribunal by its order dated 14th October, 1982 (annexure I), dismissed the same by holding that the petitioner has failed to make out sufficient cause for restoration. Against the said order of dismissal the petitioner filed a review application which was also dismissed (annexure L) on the same ground. Hence this petition.
5. The respondents in their returns have contested the petitioner's case, firstly, on the ground that the Tribunal was justified in dismissing the appeal in default for failure of the petitioner to make out sufficient cause; that the petitioner ought to have resorted to the remedy of making a reference to this Court under Section 44(1) of the said Act, and that thus there are no valid grounds made out by the petitioner for restoration of the appeal pending before the Tribunal which had the jurisdiction to dismiss the appeal in default.
6. As the Tribunal has not decided the appeal on merits we too have refrained from even touching the merits of the case. Admittedly the Tribunal dismissed the appeal in default of appearance of the petitioner and his counsel. The Tribunal also refused to restore the same on the ground that no sufficient cause or ground has been made out for restoration of the appeal.
7. The learned counsel for the petitioner, therefore, submitted that Shri Dave who is a Chartered Accountant and was representing the petitioner before the Tribunal is not a legal practitioner. However when he received the intimation about the date of hearing, prior to the date of hearing he had already sought for adjournment by sending a telegram as also the letter, the receipt of which has also been admitted by the Tribunal in the impugned order. He, therefore, submitted that it could not be said that Shri Dave was not vigilant about the case. He, therefore, submitted that he was under the impression that as he had already sent a telegaram followed by a letter requesting for adjournment the same would be granted and he would be informed of the next date as per practice prevailing with the Tribunal. The learned counsel, therefore, submitted that as the question involved in the appeal before the Tribunal was purely a question of law, the Tribunal should not have been so harsh firstly in dismissing the appeal and thereafter refusing to restore the application for setting aside the order of dismissal of the appeal in default as principles of natural justice required the Tribunal to give a proper hearing on the merits though he did not dispute the fact that the Tribunal had the jurisdiction to dismiss the appeal in default as has been held in the decision reported in 1982 MPLJ 383 (Mahadeo Sahra and Sons v. Board of Revenue, M.P., Gwalior) on which the learned Government Advocate had placed reliance. However, relying on the decisions reported in AIR 1981 SC 1400 (Rafiq v. Munshilal) and AIR 1983 SC 318 (Savithri Amma Seethamma v. Aratha Karthy) the learned counsel for the petitioner contended that the party should not suffer for the inaction of his counsel and in such matters a liberal view ought to have been taken. He further submitted that at best the petitioner should have been saddled with costs. He, therefore, submitted that as the impugned order has resulted in failure of justice to the case of the petitioner the same deserves to be allowed and the impugned orders (annexures G, I and L) be quashed and set aside.
8. On the other hand the learned Government Advocate while opposing the petitioner's contention submitted that the petitioner ought to have been vigilant and careful about his case and if the petitioner's counsel was busy in some other work, which he considered to be more important than the case before the Tribunal, it cannot be held that the Tribunal was unjustified in dismissing the appeal. The submission of the learned Government Advocate may have some force, but in such cases where the Tribunal is the final appellate authority, normally it is not expected to dismiss the appeal in default unless and until despite giving several opportunities the party has failed to put in its appearance on the date of hearing so fixed. The facts of the present case do not indicate that even in the past prior to 5th March, 1982, when the case was listed for hearing before the Tribunal the petitioner or his counsel had sought adjournments on some ground or the other which resulted in prolonging the decision of the appeal. It is, no doubt, true that when the petitioner's counsel before the Tribunal had prior intimation about the date of hearing, he should have remained present on that date. But it is not in dispute that prior to that date the petitioner's counsel Shri Dave had by telegram as well as by letter had sought for adjournment though it is also apparent that no intimation about the date of hearing was sent to the petitioner as normally it is the counsel who appears and argues before the Tribunal.
9. We are, therefore, of opinion that the power of dismissal in default should be carefully exercised not by way of routine but in exceptional cases only and the Tribunal should decide the appeal on merits. In the present case at best the Tribunal could adjourn the hearing subject to payment of costs, but that too has not been done. Therefore, the present case does not appear to be an exceptional one which should have been dismissed in default of appearance of the petitioner and his counsel, though we may observe that the petitioner is not entitled for adjournment on a mere asking unless and until he makes sufficient cause for seeking the adjournment. Thus, considering the facts and circumstances of the present case we are of opinion that in the interest of justice and in fairness the Tribunal should not have dismissed the appeal in default and thereafter should not have refused to restore the same,
10. In the result this petition succeeds. The impugned orders (annexures G, I and L) are set aside and the case is remitted to the Tribunal with a direction to restore the appeal to file and decide the appeal on merits within a period of four months from today after giving proper opportunity of hearing to the petitioner subject to payment of costs of Rs. 1,000 to be deposited by the petitioner in this Court within a period of fifteen days from today. Even though we have allowed the petition, considering the facts and circumstances of the case we are of opinion that the respondents are entitled to costs plus counsel's fee, which is assessed at Rs. 500 which shall also be deposited by the petitioner in this Court within a fortnight from today. In case the petitioner fails to deposit the aforesaid amount within the stipulated time, the Tribunal's order in question will stand.