IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA st ON THE 1 OF MARCH, 2023 MISC. PETITION No. 2225 of 2022 BETWEEN:-

SMT. MEENA JAIN Wd/O NEERAJ KUMAR JAIN, AGED 57 YEARS, OCCUPATION: TEACHER R/O 1A NEW VIVEKANAND COLONY BALWANT NAGAR UNIVERSITY ROAD GWALIOR (MADHYA PRADESH)

.....PETITIONER (BY SHRI SANTOSH AGRAWAL - ADVOCATE)

AND

1. SMT. REETA DEVI JAIN Wd/O HARISH CHAND JAIN, AGED 62 YEARS, R/O JAIN TYRE SHOP SADAR BAZAR SHANKAR BAZAR KA TIRAHA NEAR RUI KI MANDI MORENA (MADHYA PRADESH)

2. MANOJ JAIN S/O LATE SHRI HARISH CHAND JAIN, AGED 31 YEARS, R/O JAIN TYRE SHOP, SADAR BAZAR SHANKAR BAZAR KA TIRAHA, NEAR RUI KI MANDI MORENA (MADHYA PRADESH)

PRASHANT JAIN S/O LATE SHRI HARISH CHAND

3.

JAIN, AGED 47 YEARS, R/O JAIN TYRE SHOP SADAR BAZAR SHANKAR BAZAR KA TIRAHA NEAR RUI KI MANDI MORENA (MADHYA PRADESH)

.....RESPONDENTS/DEFENDANTS

4. SMT MADHU JAIN W/O SHRI RAM KUMAR JAIN, AGED 59 YEARS, R/O KASTOORBA SCHOOL RUI KI MANDI MORENA (MADHYA PRADESH)

5. RAM KUMAR SINGH JAIN S/O SHRI SHYAM SHANKAR SINGH, AGED 60 YEARS, R/O KASTOORBA SCHOOL RUI KI MANDI MORENA (MADHYA PRADESH)

6. RAKESH KUMAR JAIN S/O LATE SHRI BABULAL JAIN, AGED 53 YEARS, R/O NEAR GANGA GARDEN JAIN TYREWALE, AGRA BOMBAY ROAD MORENA (MADHYA PRADESH)

7. KASTOORBA SHIKSHA PRASAR SAMITI MORENA THROUGH SO CALLED SECRETARY RAKESH KUMAR JAIN KASTOORBA SHIKSHA SAMITI MORENA (MADHYA PRADESH)

.....RESPONDENTS/DEFENDANTS (SHRI ROHIT BANSAL – ADVOCATE FOR RESPONDENT NO.1 TO 3)

(SHRI R.S. GUPTA – ADVOCATE FOR RESPONDENT NO.4 AND 5)

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This petition coming on for admission this day, the court passed the following:

ORDER

This petition under Article 227 of the Constitution of India has been filed against the order dated 05.05.2022 passed by Additional Judge to the Court of Ist Civil Judge, Senior Division, Morena in Civil Suit No. 17/2014 by which the application filed by the petitioner under Order 9 Rule 7 CPC for setting aside ex-parte proceedings has been rejected.

It is submitted by counsel for the respondent that the evidence has been closed and the case is fixed for final hearing.

The facts of the case are that the respondent Nos. 1 to 3 have filed a suit for declaration, possession and permanent injunction. The petitioner Smt. Meena Jain was impleaded with the address of “besides Ganga Garden, Jain Tyre, Agra Bombay Road, Morena.” The registered notice sent to respondent No. 3 at the aforesaid address was returned back on the ground that the petitioner does not reside at the given address. Thereafter, notices were issued to the petitioner by registered post at the address of “I.B.D.S. Naka, Towns Colony, Indore”, and the said notice was returned back on the ground of incomplete address. Thereafter, it appears that fresh notice was issued by registered post at the address of “I.B.D.S. Dewas Naka, Towns Colony, Indore.” It appears that the service report of the said notice sent by registered post was not received back either served or unserved. Accordingly, by order dated 10.03.2014 the petitioner was proceeded ex-parte. The petitioner filed an application under Order 9 Rule 7 CPC on the ground that the notices were not served on the petitoner. Her correct address is 1A New Vivekanand Colony, Balwant Nagar, University Road, Gwalior and it was prayed that the ex-parte proceedings recorded against the petitioner be set aside.

The prayer for setting aside the ex-parte proceedings was vehemently opposed by the plaintiffs/ respondent Nos. 1 to 3.

By the impugned order the application filed under Order 9 Rule 7 CPC has been rejected.

It appears that the trial Court after relying upon the provisions of Section 27 of General Clauses Act as well as Order V Rule 9 CPC treated the petitioner as deemed served for the reason that the service report of notice sent by registered post was not received back either served or unserved within a period of 30 days.

Section 27 of General Cl