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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 ..... id 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, Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ety, Navi Mumbai-400 706 . 5. When the plaintiff served the writ of summons, the packet was returned by the postal authorities with the endorsement intimation and unclaimed . The plaintiff therefore, filed an affidavit of service of the Bailiff of the Sheriff of Bombay, based on which the Addl. Prothonotary Senior Master passed an order granting leave to serve the defendants by substitute service. Based on that, the plaintiff published the writ of summons in Free Press Journal and Navshakti on 28.2.2013. The plaintiff also filed an affidavit of service of the clerk of the plaintiff's Advocate. Suit was listed on 1.4.2013 and this Court was pleased to pass an ex-parte decree in favour of the plaintiff on the ground that the defen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the applicant stated that despite repeatedly calling upon the plaintiff they have not given inspection of the affidavit of service dated 30.3.2013. 7. It is the case of the applicant that the residence of the defendant no. 3 (defendant no. 2 having expired sometime back) is B-3, Krishna Vihar, Babulal Pannalal Jain Marg, Road No. 22, Belapur Village, Jain Society, Navi Mumbai-400 706 and not B-4 Shri Krishna Vihar. I asked the counsel for the plaintiff from where did the plaintiff get the address B/4, Shri Krishna Vihar. The counsel stated that the whole building is owned by the defendants and relied upon the documents annexed to the additional affidavit filed by the plaintiff affirmed on 9.12.2015. None of the documents indicate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service or writ of summons cannot be served. The plaintiff should make further attempts before the Prothonotary Senior Master permits him to serve writ of summons by substituted service particularly when it is a Summary suit and within 10 days defendants have to enter appearance. I have been observing that the Prothonotary Senior Master and Addl. Prothonotary Senior master has been granting leave to serve by substituted service as a matter of course. They must while granting such a leave, record reason why they feel the defendant was keeping out of the way for avoiding service or why the summons cannot be served in the normal way. There could be various reasons why when intimation is posted, a party may not have collected the packet f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... each case, as to whether circumstances pleaded are so unusual or extraordinary as to justify putting the clock back by setting aside the decree; to grant further relief in regard to post-decree matters, namely, staying or setting aside the execution and also in regard to pre-decree matters viz. to give leave to the defendant to appear to the summons and to defend the suit. 9. The Apex court has held that non-service of summons will undoubtedly be a special circumstance. I am satisfied 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 subst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s recalled. 13. In view of the above, the question of executing ex-parte decree will not arise and therefore, Thane court is directed to return the process. 14. The counsel for the applicant states that his Advocate's Vakalatnama be continued in the main suit. 15. Since the defendant no. 2, I am told has expired, the advocates for the applicant to provide details of the legal heirs of defendant no. 2 to the plaintiff's Advocate within one week from today along with a copy of the death certificate. The plaintiff to amend the cause title within one week thereafter and serve a copy of the amended plaint upon the Advocate for the defendants. 16. At the request of the counsel for the plaintiff this order setting aside ..... X X X X Extracts X X X X X X X X Extracts X X X X
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