2015 (4) TMI 626

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.... to furnish a report as to whether the notice of appeal was served. The registry by its report dated 24th June, 2014 informed this Court that no notice had been taken out by the appellant from the section for service upon the respondent. There was as such a clear violation of Chapter XXXI Rule 8 of the Original Side Rules of this Court which provides as follows:   "8.Notice of Appeal. Within one week from the date of admission of an appeal, or within such extended time as may be allowed by the Registrar, the appellant shall take out and deliver to the Sheriff a Notice of Appeal for service on the respondent; in default, the appeal may be set down before the Appellate Court for disposal: Provided also that in cases where the appel....

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....d by the Court. It is an appeal under section 260A of the Income Tax Act, 1961. Subsection (7) of Section 260A reads as follows:- " (7) Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908 (5 of 1908), relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this section." The relevant provisions as regards service of notice of appeal are to be found in Order 41 Rule 14. Sub-section 1 of Rule 14 provides for service of notice in the same manner as a summon is required to be served on the defendant. Rule 1 of Order 5 provides for issuance of summons, Rule 10 provides for mode of service of the summons. Rule 1 of Order 9 provides for appearance of the ....

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....) he has failed using his best endeavours to discover the residence of the defendant, who has not been served, or (b) such defendant is avoiding service of process, or (c) there is any other sufficient cause for extending the time, in which case the Court may extend the time for making such application for such period as it thinks fit.] (2) In such case the plaintiff may (subject to the law of limitation) bring a fresh suit."  It would appear that both under the Original Side Rules of this Court and the provisions of the Code of Civil Procedure, failure to serve notice of appeal is a ground for dismissal of the appeal.  Under Sections 129 and 130 of the Code of Civil Procedure High Courts are empowered to make th....