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2016 (6) TMI 1454 - HC - Indian LawsPrinciples of natural justice - service of writ of summons - whether the applicant has set out "special circumstances" to set aside the ex-parte decree? - HELD THAT:- The Apex court in Rajnikumar Vs. Suresh Kumar Malhotra [2003 (3) TMI 774 - SUPREME COURT] has held that non-service of summons will undoubtedly be a special circumstance. It is satisfying that the summons has not been served upon the defendants and therefore, it will be a special circumstance under Order 37 Rule 4 to recall the ex-parte decree passed. Substituted service may be good service in law but the fact that leave to serve by substituted service was granted without valid reason will go to the root of the matter. In my view leave was granted without valid reasons. Substituted service can be permitted only when there are reasons to believe that the defendant is keeping out of the way to avoid service or if summons cannot be served. There was nothing in the present case to believe the defendants were keeping out of the way to avoid service. The defendant has shown some material for the Court to consider at the hearing of the summons for Judgment as to whether the defendant should be granted leave to defend the suit or not. It is not that the defendant has been totally silent. The ex-parte decree passed on 1.4.2013 is recalled - the question of executing ex-parte decree will not arise and therefore, Thane court is directed to return the process.
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