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Issues: (i) Whether an application for recall and restoration of an income-tax appeal dismissed in the absence of the appellant or counsel was maintainable under Order 41, rule 19 of the Civil Procedure Code by virtue of section 260A(7) of the Income-tax Act, 1961; (ii) whether the appellant had shown sufficient cause for non-appearance.
Issue (i): Whether an application for recall and restoration of an income-tax appeal dismissed in the absence of the appellant or counsel was maintainable under Order 41, rule 19 of the Civil Procedure Code by virtue of section 260A(7) of the Income-tax Act, 1961.
Analysis: The applicable procedural scheme for appeals in the High Court, as attracted by section 260A(7), makes the provisions relating to restoration available where an appeal is disposed of in the absence of the appellant or counsel. The nature of the earlier dismissal did not by itself take away the statutory remedy of seeking recall on the footing that the order was passed in default of appearance. The availability of restoration depends on the fact of absence and not on whether the dismissal order was expressed in reasoned form.
Conclusion: The application under Order 41, rule 19 of the Civil Procedure Code was maintainable and the preliminary objection to maintainability failed.
Issue (ii): Whether the appellant had shown sufficient cause for non-appearance.
Analysis: The explanation placed before the Court was supported by an affidavit and disclosed that counsel had to leave unexpectedly to attend an ailing near relative and could not return in time for the hearing. The explanation was accepted as a bona fide and unavoidable circumstance preventing appearance, and there was no basis to disbelieve the affidavit.
Conclusion: Sufficient cause was shown for the non-appearance.
Final Conclusion: The dismissal order was recalled and the appeal was restored for hearing on admission, with the restoration application allowed.
Ratio Decidendi: Where an appeal is disposed of in the absence of the appellant or counsel, the remedy under Order 41, rule 19 of the Civil Procedure Code remains available on proof of sufficient cause, and the form of the dismissal order does not extinguish that statutory right.
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