NARMADA CLUB Vs. P.K. TARE

JUDGEMENT

(1.) Appellants have filed the present appeal challenging the order dated 17.12.1998 passed in M.J.C. No.18/94 by which appellants' application under Order 9 rule 13 C.P.C. rejected.

(2.) Short facts of the case are that Smt. Kmalini Tare filed a suit against the appellants for declaration and possession. This suit was registered as Civil Suit No.3 -A/92 in the Court of the Additional District Judge, Hoshangabad. Previously, plaintiff filed a suit before Civil Judge Class -I, Hoshangabad for arrears of rent and for eviction which was registered as Civil Suit No.3A/1979. In the aforesaid case, appellants denied the tenancy, consequently the present suit was filed for declaration and possession. The suit was filled on 3.2.1992.

(3.) From the perusal of the order -sheet of the case, it appears that on 26.2.92, the Court after registering the case directed issuance of summons to the appellants/defendants. Summons were issued for 22.4.92 on the appellants. These summons were received in the office of Collector, Hoshangabad on 4.3.1992. The process server returned the summons after his endorsement that the summons were duly served on the defendants. Inspite of service, on next date of hearing, defendants did not appear. The case was kept for sometime and in afternoon at 3.00 p.m. on the same day again the case was called where defendants or their counsel did not appear. Consequently, the exparte order was passed. Thereafter the case was adjourned on several dates. Ex -parte evidence recorded in the case and decree was passed on 22.11.93. On 30th August 1994, application under Order 9 rule 13 C.P.C. was filed to set aside the ex -parte decree. The ground for setting aside the ex -parte decree stated in the application is that the non -applicant Smt. Kamilini Tare filed the suit against the appellants through President of Narmada Club. The summons were not duly served on the defendants. The office of defendants' institution is in the building of the club but on the aforesaid address no summon was issued. Narmada Club, Hoshangabad is a society registered under M.P. Society Registration Act, 1973 having its own constitution and rules. The club is managed by Managing Committee having President, Vice -President, Secretary and five members. These are elected for a period of one year. The cub is managed by the Managing Committee and not by the President. The Collector, Hoshangabad has no concern with the club nor he is entitled to receive the summon of the Court on behalf of the club. Summon was wrongly served. Ex -parte order was wrongly passed by the Court, which is illegal. It is further alleged that first time on 30th August, 1994, counsel of the non -applicants was informed in the Court in respect of the ex -parte decree during hearing of another Suit No.4 -A/85, and appellant become aware in respect of the ex -parte decree. The aforesaid information was received by the Life Member of Club, Shri Rakesh Fouzdar, who subsequently informed the President and Secretary of the Club, on the same day. No Advocate was appointed in the aforesaid suit and the decree was wrongly passed in the case. On these grounds, an application was filed to set aside the ex -parte decree.