Rakesh Tiwari - (1.) -Heard counsel for the parties and perused the record.
(2.) THIS writ petition is directed against the orders dated 27.7.2001, 16/23.10.2000 and 18.9.1998, passed by respondent Nos. 1 and 2 respectively. The impugned orders have been filed as Annexures-7, 6 and 4 respectively to the writ petition. It is prayed that the aforesaid orders be quashed and a direction be issued to the Additional Civil Judge (respondent No. 2) to decide Suit No. 590 of 1998 on merits after affording opportunity of hearing to petitioner Nos. 1 and 2, i.e., U.P. Avas Evam Vikas Parishad, Lucknow through the Housing Commissioner, Lucknow and Executive Engineer, Construction Division-I, U.P. Avas Evam Vikas Parishad, Vashundhara, Ghaziabad. Brief facts of the case : Petitioner No. 1 U.P. Avas Evam Vikas Parishad, Lucknow, is a Corporation of the State Government having its office at Lucknow. It is governed by the statutory provisions of the U.P. Avas Evam Vikas Parishad Adhiniyam, 1965 (hereinafter referred to as the Act). The petitioner-Corporation prepared a housing scheme at Ghaziabad known as "Vasundhara Housing Scheme" in 1982. The scheme was finalized and notified by the State in 1987 under Section 32 of the Act comprising 50 acres of land approximately excluding part of land of plot No. 527/4 in dispute. Respondent No. 3 filed a Civil Suit No. 590 of 1998 on 22.5.1998 for permanent injunction alleging that the land in dispute of plot No. 5237/4 was purchased by him by a sale deed in 1998 which was not included in the "Vasundhara Housing Scheme" of the petitioner-Corporation. Service of summons in suit was affected through Court Amin on 23.5.1998 on the clerk of the office of the respondents. The suit was decreed ex parte on 16.9.1998, treating the service upon the respondents as sufficient. On 16.10.2000 the civil Judge dismissed the application for restoration under Order IX, Rule 13, C.P.C. moved by the petitioners on 10.9.2000. Aggrieved, the petitioners filed an appeal/revision before the Additional District Judge, which was also dismissed on 27.7.2001. These orders are impugned in this writ petition. The counsel for the petitioners has assailed the order on the following two grounds : (1) Summons were not at all served on defendant No. 1 at Lucknow : (2) Suit is not maintainable.
(3.) IN support of his first submission the counsel for the petitioners submits that defendant No. 1 is Housing Commissioner with Head Office at Lucknow. He can sue and to be sued in Court but in view of Section 88 of the U.P. Avas Vikas Parishad Adhiniyam, 1965 read with Order XXIX, Rule 2 (a), C.P.C., when there is more than one defendant, the service should be effected on each defendant. He submits that no service was at all effected on defendant No. 1, the Housing Commissioner at Lucknow, as such service on defendant No. 2 at Ghaziabad is not proper and sufficient ; that defendant No. 2 is the Estate Management Officer, Housing Scheme at Ghaziabad. He was not a proper and necessary part at the time of filing the suit in 1998, as the land in the scheme vested in the District Magistrate-cum-S.L.A.O., Meerut, after notification in 1987 for taking process to acquire the land and pay compensation to tenure holder who handed over the possession of the land to the Executive Engineer on 6.7.1999. It is urged that the Estate Management Officer therefore does not come in the picture at all. It is also stated that Court Amin effected the service of summons on 23.5.1998 on a class III employee in the office of the Estate Management Officer who was not authorized to receive the notice. The courts below therefore have wrongly and illegally treated the service on an employee as sufficient service.;