Decided on October 13,2004



Pratibha Upasani, - (1.) THESE Miscellaneous Appeals are filed by the appellants/original defendants being aggrieved by the Order dated 28.11.2001 passed by the learned PO of DRT, Ernakulam, in IA-1053/2001 in OA-1489/1998 and IA-1055/2001 in OA-1488/1998. By the impugned Orders the learned PO rejected the applications (sic).
(2.) I have heard Mr. Rajesh holding for Mr. A.D. Baby, Advocate for the appellants and Mr. Krishnamurthy, Advocate for the respondent Bank. I have also gone through the entire proceedings and the shocking things which is revealed is that when the applications dated 14.8.2001 in both the OAs were made to the DRT, Ernakulam, to set aside the ex parte decree passed on 25.1.2001, affidavit in support of the said applications was made and filed by only one of the original defendants namely, M.P. Baiju. Copy of the same is annexed as Annexure at Page No. 28 of the present Appeal Memos. The other defendants have not filed any separate affidavit or supporting affidavit. The affidavit flied by the said Mr. Baiju, clearly shows that he has not been authorized to file affidavit and to make statements contained therein by the other defendants. Therefore, that affidavit has to be treated as the one filed only on behalf of M.P. Baiju and it has to be concluded that other defendants did not make any application to the DRT to set aside the judgment passed against them on 25.1.2001 and they had accepted the said verdict passed against them. Therefore, as a consequence of this blunder, all the appellants are not entitled to file this appeal at all. If anyone was entitled to do so, it was the original defendant No. 2 M.P. Baiju (in OA-1489/ 1998). Therefore, as far as the adjudication of these appeals is concerned, only the averments with respect to M.P. Baiju are to be considered. Having considered the submissions of both the Advocates at length and having gone through the impugned Order dated 28.11.2001 and the affidavit made by M.P. Baiju in support of the application to set aside the ex parte decree, it is revealed that the case of the appellant Mr. Baiju was that though he gave instructions to his Advocate, the Advocate did not pursue the matter diligently. It is also averred that there was change of premises, and change of DRTs inasmuch as originally additional charge of DRT, Ernakulam, was with DRT, Chennai, and thereafter, DRT, Ernakulam, had additional charge of DRT, Chennai, and there was no premises specifically allotted to DRT at Ernakulam, and there was some room to say that the affairs of the DRT were not in place. If this was the situation, one can see how there was a confusion with respect to again sending notices from the new premises etc., and therefore, in my view some benefit of doubt has to be given to the defendant M.P. Baiju. Not that I am totally convinced but some plausible case has been made out by the said defendant Mr. Baiju, Therefore, I am inclined to set aside the ex parte decree passed against only him but not without putting some terms. Accordingly, following Order is passed.
(3.) THE Miscellaneous Appeals MA-101/2004 and MA-102/2004 are partly allowed.;

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