Narmada Club vs P.K. Tare

K.K. Lahoti, J.

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.

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.

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.

In support of this application, Shri Anil Shrivastava, I.A.S., President of the Narmada Club, Hoshangabad, R.N. Shukla, Secretary and Rakesh Fouzdar, Life Member and General Secretary filed their affidavits. Smt. Kamalini Tare filed her reply in the case denying the allegations and stated that due service was effected on the appellants and after service on the respondents, the ex-parte decree was passed. It was not necessary to serve the notice in the premises of the Narmada Club as it remains closed during the day time. The appellants have not paid any amount of rent since 1976. As per the judgment, the First Additional District Judge has fixed mesne profits at the rate of Rs. 350/-p.m., which is also not deposited by the appellants. Though the decree was executed on 28.4.1994, but the appellants who are in Govt. service by influencing their power and position have taken possession of the suit property back by taking law in their hands. The application filed by applicants is barred by time. On these grounds, the application contested. The reply is supported by affidavit of A.P. Tare, son/power of Attorney Holder, of Smt. Kamlini Tare.

The Court recorded the evidence of Rakesh Fauzdar (AW1) and Anil Shrivastava (AW2), and after hearing arguments, the application was dismissed on following grounds:

the summons was duly served; and

the application is barred by time.

Aggrieved by which the present appeal has been filed.

It is pertinent to mention here that during the pendency of proceedings before the Trial Court, plaintiff/respondent Smt. Kamilini Tare died and her husband Shri P.K. Tare was substituted.

The contention of the learned counsel for the appellants is as under:

1) that the appellant is a society registered under the M.P. Society Registration Act and the service is to be effected on the society as per Order 29 rule 2(b) of the C.P.C. as the service was not effected in the aforesaid manner, ex-parte decree could not be sustained.

2) that the plaintiff has wrongly issued the summon without mentioning the words ''Civil Line'' in the summon and the service was wrongly effected in the office of Collector.

3) As per Rule 7 of M.P. Society Registrikaran Niyam, 1975, service was not effected. The society registered under M.P. Society Registration Act will be treated as Corporation and if the summon is not served in the office of the Society, it will not be a proper service. In this regard, the learned counsel for the appellants relied on Shalimar Rope Works Vs. M/s Abdul Hussain : 1980 SC 1163.

4) There was no due service of the summons on the appellants. Relying on Nareshchandra Agrawal Vs. Bank of Baroda: AIR 2001 SC 1253, it is contended that in the present case, appellant was not present at the address, then it is not a due service of summon.

The learned counsel appearing for the respondent submits that the summon was duly served on the appellants. Collector, Hoshangabad was Chairman of the Society and as per Section 22 of the M.P. Society Registration Act, 1973, the service can be effected on the President of the Society and it is a valid service. That the provisions of Order 29 rule 1 (a) and (b) of C.P.C. are in the alternative and a decree cannot be set aside merely on the ground that the summon was served oh the president and it was not served in the registered office of the Society. The President is the Principal Officer of the Society and if the society can be sued through the President or Chairman, then the service on President is a valid service. In the present case, the service was effected on the appellant and it is not a case of non-service of summons. In the circumstances, when the summon was duly served on the President of the society, then the case of Shalimar (supra) will not apply. Similar facts are in the case of N.C. Agrawal (supra). In the present case, Collector, Hoshangabad was the Chairman of the Society and summon was duly served on him.

So far as first contention of the appellants that the procedure of Order 29 Rules 2(b) C.P.C. not followed is concerned, it is necessary to look into the provision, which reads as under:

Service on Corporation. Subject to any statutory provision regulating service of process, where the suit is against a corporation, the summons may be served-

(a) on the secretary, or on any director or other principal officer of the corporation, or

(b) by leaving it or sending it by post addressed to the Corporation at the registered office, or if there is no registered office then at the place where corporation carries on business.

From the perusal of the Rule, it appears that the service of summon to any principal officer has been provided in sub-rule (a), and in the alternative, it is provided that summon may be served by leaving it or sending it by post addressed to the corporation at the registered office or if there is no registered office then at the place where the Corporation carries on business. In the present case, service was effected on the President, in the circumstances, the appellants cannot take plea of service as provided in sub rule(b) of Rule 2 of Order 29 C.P.C. In the summon if words ''Civil Lines'' were not written by itself will not change the position. If the summon is served on the President of the Society, then it is valid service. It is not in dispute that appellant is a registered society under M.P. Society Registration Act. Section 22 of the said Act provides as under:

Every society may sue or be sued in the name of the President or Chairman or Principal Secretary or the trustees as shall be determined by the regulations of the Society and in default of such determination, in the name of such person as shall be appointed by the governing body for the occasion.

Provided that it shall be competent for any person having a claim or demand against the society to sue the President or Chairman or Principal Secretary or the trustee thereof, if on application to the governing body some other officer or person be not nominated to be the defendant.

Under the aforesaid provision, appellant may be sued in the name of President or Chairman or Principal Secretary or the trustee as provided in the Regulation of the Society. The proviso provides that it shall be competent for any person having a claim or demand against the society to sue the President or Chairman or Principal Secretary or the trustee thereof. If the society wants Otherwise then it has to file an application in this regard in the Court and only thereafter other persons may be nominated in the case. In these circumstances, the respondent has filed the suit against the Narmanda Club, and Narmada Club was sued through its President, then the respondent has acted in accordance with the provision of law. So far as the service of the summon on appellant is concerned, it is not in dispute that at the relevant time, the President of the Club was Collector, Hoshangabad. The summon was duly served in the office of Collector, Hoshangabad. It is common fact that the Collector of District usually holds office of Chairman/President in various institutions which are Govt., Semi-Govt. or affiliated institutions or other institutions etc. In the office of Collector, there is due arrangement to receive all the summons, letters etc. and after receiving them, these are being dealt with. On the basis of such receipt of the summon, action is being taken and arrangements are made for proper representations. Even in the cases against State, summons are served in the office of Collector. In the circumstances, office of Collector is an important office and it cannot be assumed that a notice received in the office of the Collector will not be taken due care of. In the present case, the appellants have not denied the service of summon in the office of Collector, who happens to be the President of the club. But the aforesaid record was not produced. The Receipt Clerk of Collectorate was not examined by the appellants nor the then Collector of the Club posted on 10.3.1992 was examined. Even the concerned file was not summoned. In the circumstances, the appellant has either withheld the material evidence or has willfully not produced the evidence in the case showing the bona fide on his part. It is not in dispute that at the time of filing of the present application, Collector, Hoshangabad was the President of Narmada Club. He has filed his affidavit along with the application. Why he has not produced the aforesaid record, which was in the custody, though in different capacity, but it was very easy for him to procure the aforesaid record and to produce it before the Court showing the bona fides on the part of the appellants. Even there is no explanation in the application, in this regard. Merely in the summon, the words ''Civil Lines'' were not written by itself is not sufficient ground to set aside the decree. The summon was duly served on the President of the Club in his office which fact remains uncontroverted on the part of the appellant.

In view of the aforesaid, the summon was duly served on the appellant through President of the Club. It was in accordance with Section 22 of M.P. Society Registration Act, 1973 and also under sub-rule (a) of rule 2 of Order 29 C.P.C. In the circumstances, appellant was duly served in the case and now appellant cannot take benefit of the technicalities in the case. Rule 13 of Order 9 provides that no Court shall set aside a decree passed ex-parte merely on the ground that there has been an irregularity in the service of summon, if it is satisfied that the defendant had notice of the hearing and had sufficient time to appear and answer the plaintiff''s claim. In the present case, notice was served on the appellant on 10.3.1992. The defendant was having sufficient time to appear and answer the claim of plaintiff.

The provisions of Order 9 rule 13 C.P.C. are not penal in nature. There is no dispute in respect of settled position of law, but in the present case, the plaintiff who filed the suit long back in the year 1992 has already expired. The respondent, who is legal heir of plaintiff, is also running in ninetees. Appellant has not come in the Court with clean hands and has suppressed material evidence which was in his possession. In the circumstances, no lenient view can be taken in this case.

In view of the aforesaid, I do not find any merit in the present appeal. Consequently, this appeal is dismissed with costs of Rs. 2000/- payable by appellant to respondent.