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2018 (8) TMI 1888 - HC - Indian LawsService of order - Ex-parte order - want of proper service on the defendant in the suit - HELD THAT:- The court should be satisfied that either the defendant is deliberately avoiding the service, so the order of substituted service can be passed or if the Court is satisfied that for any other reason, the summons cannot be served in ordinary way, then the order of substituted service can be granted. On the point of setting aside of ex-parte decree, the Hon'ble Supreme Court, in the case of INTERNATIONAL WOOLEN MILLS VERSUS STANDARD WOOL (U.K.) LTD. [2001 (12) TMI 864 - SUPREME COURT], has held that it is possible even though the defendant has not entered evidence, the plaintiff may prove its case through oral and documentary evidence. If after consideration of oral and/or documentary evidence, an ex parte decree is passed, it would be a decree on merits. The Court can also go for service of publication and once it is published, then sub-rule (2) of Rule 20 will be attracted, which states the effect of substituted service, i.e., substituted service by order of Court shall be effectual as if it was made on the defendant personally. Thus, it lays down the deeming fiction. However, the plaintiff can ask for substituted service after complying with the requirement of Order 5 Rule 17 of the Code of Civil Procedure. If a person refuses to give the acknowledgment and if at all with all due and reasonable diligence, the defendant is not found, then it is mandatory on the service officer to affix the copy of the summons on the outer door or some other conspicuous part of the house where the defendant ordinarily resides. Ex-parte order st aside - the suit is restored to its original file - petition dismissed.
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