Rajesh Singh Chauhan, J.
1. Heard Sri Pradeep Agarwal, learned counsel for the revisionist and Sri Sanjay Sarin, learned Standing Counsel for the State.
2. By means of the instant revision the order dated 4.2.2003 passed by the Trade Tax Tribunal, Bench III, Lucknow has been assailed on the ground that the said order is an ex-parte order.
3. The attention of this Court has been drawn towards Annexure no. 5 which is a report of Process Server dated 30.1.2003. The aforesaid report reads that the location of the revisionist was not traceable, therefore, a notice has been affixed on one wall at Dubagga, Hardoi Road. The extract of the notice is being reproduced herein below:
Is firm ki Hardoi road per kai jagah pata kiya parantu sahi sthan na milne ke karan prarthi Hardoi Road, Dubagga ke pahle diwar per pratham prati chaspa kiya, mauke per koi saboot dene ko taiyar nahi hua. Atah notice chaspa kiya."
4. The counsel for the revisionist has submitted that the aforesaid notice has not been served strictly in accordance with law as indicated under Rule 77 of U.P. Trade Tax Rules, 1948. The aforesaid rule categorically provides that the service of any notice, summons or order under the Act or the Rules may be effected by any of the methods, namely:
(a) by giving or tendering, a copy thereof to the dealer or person concerned, or to his manager, munim, accountant or agent, or to one of his employees or to any adult member of his family residing with him,
(b) by registered post:"
5. Sub-clause 5 of Rule 77 further provides that if the noticee is not found on the address, necessary steps would be taken. Sub-clause 5 of Rule 77 is being reproduced herein below:
"(5) When the notice, summons or order is served by affixing a copy thereof in accordance with the first proviso to sub-rule (1), the official serving it shall return the original to the authority concerned with a report endorsed thereon or annexed thereto stating that he so affixed the copy, the circumstances under which he did so and the name and address of the person, if any, by whom the addressee's office or residence or the building in which his office or residence is located or his place of business was identified, and in whose presence the copy was affixed. The said official shall also obtain the signature or thumb-impression of the person identifying the addressee's residence or office or building or place of business to his report."
6. The bare perusal of the report of the Process Server dated 30.1.2003 reveals that the notice/order has not been served upon the revisionist strictly as per the provisions of Rule 77(5) of the Rules, 1948.
7. Learned counsel for the revisionist has, however, filed recall application dated 10.7.2003 before the Tribunal which is contained as Annexure no. 7 to this revision seeking prayer that the ex-parte order dated 4.2.2003 be recalled and proper opportunity of hearing be provided to the applicant. The aforesaid recall application has yet not been decided by the Tribunal.
8. It is settled proposition of law that no order should be passed ex-parte unless the party in question deliberately ignores the proceedings.
9. Learned counsel for the revisionist has also drawn the attention of this Court in respect of a judgment dated 3.8.2009 passed in Jagdamba, Metal Industries, Chandralok, Subun Gdam, Meerut v. Commissioner, Commercial Tax, U.P. Lucknow reported in (2010) 13 VLJ 216.
10. The aforesaid judgment squarely covers the issue in question. In the aforesaid case the ex-parte order was passed by the Tribunal and which was assailed by the party of that revision before this Court. The instant case is even on better footings to the case so sited by learned counsel for the revisionist, inasmuch as in that case the recall application was filed and the same was rejected by the Tribunal but in the instant case no decision has been taken by the Tribunal on the recall application of the revisionist.
11. Vide para no. 6 of the aforesaid judgment in re: Jagdamba Metal Industries (supra) this Court was pleased to allow the revision setting aside the order of the Tribunal. Para no. 6 is being reproduced herein below :
"6. In the result, both the revisions are allowed. The order of the Tribunal dated 28.05.2009 is set aside and the order dated 13.12.2006 passed in appeal no. 118 of 2002 and 119 of 2002 are recalled. The appeals are restored to its original number. The Tribunal is directed to decide both the appeals after giving opportunity of hearing to all concerned parties."
12. It is also pertinent to indicate here that this Court was pleased to admit the instant revision vide order dated 1.10.2003 and the order dated 4.2.2003 passed by the Tribunal was stayed. The aforesaid order is still in operation.
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r />13. Learned Standing Counsel has not disputed the aforesaid facts. 14. Thus, the revision is allowed and the order of the Tribunal dated 4.2.2003 passed in Appeal No. 402 of 1996 (Assessment Year 1993-94) is set aside. The aforesaid appeal i.e. Appeal No. 402 of 1996 (Financial Year 1993-94) is restored to its original number. The Tribunal is, therefore, directed to decide the appeal, expeditiously, after giving opportunity of hearing to the parties concerned strictly in accordance with law. 15. No orders as to costs.