Decided on October 25,2007



R.S. Tripathi, J. (Chairperson) - (1.) THIS is an appeal filed against an order dated 2nd February, 2006 passed by D.R.T., Allahabad in M.A. No. 49/05 dismissing the miscellaneous application together with the application for condonation of delay. Briefly stated the case of the appellants is that the appellants had moved a recall application for recall of the ex parte order dated 16th November, 2004 passed in M.A. No. 26/04 dismissing the recall application which had been moved for setting aside ex parte judgment dated 4th January, 2002 passed in T.A. No. 188/2000. The aforesaid case No. 49/05 was moved along with an application for condonation of delay before D.R.T., Allahabad. The learned Tribunal by passing the impugned order rejected the application for condonation of delay as well as the application moved for recall and feeling aggrieved against this impugned order dated 2nd February, 2006 present appeal has been Filed.
(2.) IN this appeal the Counsel for the Bank has also appeared and has opposed the appeal on merits. Having heard Counsel for both the parties this Tribunal has gone through the entire record. The Counsel for the appellant has argued that the application for condonation of delay was rejected without considering the merits of the grounds taken by the appellant for condonation of delay. According to him the recall application has also been rejected for non -prosecution although the learned D.R.T. failed to exercise its proper jurisdiction in considering the matter of condonation of delay sympathetically keeping in view several rulings of the Hon'ble Apex Court for taking lenient view in the matters of condonation of delay. He has gone to the extent of arguing that the transfer application was disposed of on the basis of compromise but that compromise was never signed by appellant No. 2, the proprietor of firm respondent No. 1 or any other competent person. His contention is that the appellant had been lying ill from 27th June, 2004 to 25th July, 2004 and this fact was not considered by the learned Tribunal despite pleadings to that effect. According to the learned Counsel for the appellant, the compromise without signatures of proprietor of the firm appellant No. 1 or any other authorized person was not admissible under the provisions of Order 23 Rule 3 of CPC. It is argued from the side of the appellant that the dismissal of the application for recall and the dismissal of the application for setting aside ex parte order were without any basis depriving the appellants to contest the matter to meet the principles of natural justice. His submission is that under the circumstances, an opportunity should be afforded to the appellants by setting aside the impugned order dismissing the recall application in default.
(3.) AGAINST this, submission from the side of the respondent Bank is that the present appeal is defective and not maintainable for want of impleadment of all the defendants. It has also been argued that originally three dates' orders were mentioned in the relief Clause but subsequently by an amendment two of the orders were deleted. Now the appeal as it stands today is with regard to order dated 2nd February, 2006 thus, according to him without seeking consequential relief the form of the drafting of present appeal remains defective. Learned Counsel for the appellants has cited before this Tribunal Manduva Srinivasa Rao v. Sajana Granites, Madras , wherein in para 8 a Ruling has been placed. On this Ruling, State of Maharashtra v. Ramdas Shrinivas Nayak , wherein Hon'ble Apex Court has observed that the proceedings before the Court cannot be allowed to contain the statement of the Judges recorded in the judgment itself. In this connection paras 8 and 9 of the aforesaid Ruling have specifically been pointed out. According to the learned Counsel for the respondent, the appellant has failed to deposit any penny out of amount of Rs. 20,51,093.99 claimed in form of relief in Original Suit No. 226/1990 and is dragging the matter on some or other pretext without caring to repay any amount despite the compromise having been entered into on behalf of the appellants through their Counsel. His submission is that on the merits of the application for recall which have been dismissed by the learned D.R.T., when there is absolutely no ground for recall, the learned Tribunal has committed no error in passing the impugned order. The attention of this Tribunal has been drawn towards the fact that the application for condonation of delay moved before learned D.R.T. was supported with the affidavit of Pradeep Kumar dated July 2005 asserting therein that the compromise had not been done by the deponent or his any other partner and that the copy of the order dated 16th November, 2004 passed in T.A. No. 188/2000 by the learned D.R.T. was not personally served upon the appellant No. 2, rather it was served upon the Counsel for the appellants and it was not to the knowledge of the appellant No. 2 for taking any further action. According to the learned Counsel for the respondent Bank as per the case of appellant the M.A. No. 26/04 was dismissed in default when the appellant was preparing to file the appeal before this Appellate Tribunal. The learned Counsel for the Bank has argued that thus from the contents of above application and affidavit filed in support of condonation of delay no case is made out. His submission is that with the memo of present appeal the medical certificate of Jai Clinic, Jangi Road, Mirzapur had been filed along with medical certificate of Jai Shankar Hospital and Maternity Home, Chetganj Bazar, Child Gopiganj Road, Mirzapur and a prescription of the same Maternity Home without any explanation as to why these documents were not brought before the Tribunal in support of application for condonation of delay and recall application.;

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