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TMI Blog2016 (6) TMI 1454X X X X Extracts X X X X X X X X Extracts X X X X ..... or set aside execution, and may give leave to the defendant to appear to the summons and to defend the suit, if it seems reasonable to the Court so to do, and on such terms as the Court thinks fit." 2. Therefore, we have to see whether the applicant has set out "special circumstances" to set aside the ex-parte decree. 3. The case of the applicant is that the writ of summons was not served upon him at all. In the cause title in the plaint the address of the defendants is shown as under :- "B/4, Shri Krishna Vihar, Babulal Pannalal Jain Marg, Road No. 22, Belapur Village, Jain Society, Navi Mumbai-400 706" 4. In the presentation form filed with the plaint also the address of the defendants is shown as "B/4 Shri Krishna Vihar, Babulal Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are placed on record. In view of sub-Rule (3) of Rule 2 of Order XXXVII of the Code of civil Procedure, 1908, the plaintiff is forthwith entitled to a decree against the Defendants." 6. I do not find in the record & proceeding any affidavit of service dated 30.3.2013. Mr. Thakkar appearing for the plaintiff submitted that it could be a typographical error and it should be 4.3.2013. If that was so, it was for the plaintiff to move the Court for speaking to the minutes to have the date corrected. Not only that even in the affidavit in reply to the present Notice of Motion the plaintiff has relied upon affidavit of service dated 30.3.2013. I asked the counsel for the plaintiff to provide copy of the said affidavit, which he could not, partic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was dispatched by the plaintiff of the Sheriff of Bombay has been returned with the endorsement "intimation and unclaimed" If intimation is posted at the wrong address, can the defendant be stated to be avoiding service ? I would go a step further that even if the intimation was posted at the right address and the defendant has not claimed the packet from the postal authorities, would it still be a reason to believe that the defendant is keeping out of the way for the purpose of avoiding service or for any other reason summons cannot be served, for the Prothonotary and Senior Master to permit to serve the writ of summons by substituted service. In my view, by dropping the intimation once we cannot conclude that the defendant is keeping out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd give reasons why he is permitting service by substituted service. 8. In AIR 2003 SUPREME COURT 1322 Rajnikumar Vs. Suresh Kumar Malhotra, paragraph-8 reads as under :- "The expression 'special circumstances' is not defined in the C.P.C nor is it capable of any precise definition by the Court because problems of human beings are so varied and complex. In its ordinary diction any meaning it connotes something exceptional in character, extraordinary, significant, uncommon. It is an antonym of common, ordinary and general. It is neither practicable nor advisable to enumerate such circumstances. Non-service of summons will undoubtedly be a special circumstance. In an application under Order 37, Rule 4, the Court has to determine th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Notice of Motion it is stated that the defendants have also informed the plaintiff about defects in material before the suit was filed. It is also stated that the defendant had filed a FIR before the suit was lodged and the whole plaint is a counter blast. Therefore, 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. 11. I must also clarify that I have not made any observations on merits of the counter allegations made and that would be considered at the time of hearing of summons for judgment. 12. In the circumstances, the ex-parte decree passed o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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