The court emphasized the importance of proper service of summons, the existence of special circumstances, and the substantial defence in granting conditional leave to defend.

( 1 ) THE plaintiff had filed the instant suit being no. 1854/96 under Order XXXVII of Code of Civil procedure. The suit was for recovery of Rs. 49 ,35 ,184/- together with pendentelite and future interest on the principal amount of Rs. 32,56,630/- as well as cost. Since defendants could not be served by ordinary process, service by publication was ordered in an application moved by the plaintiff under Order V Rule 20 of Code of Civil Procedure. Defendants were served summons under Order XXXVII of Code of civil Procedure by publication in statesmen on 30/11/1996. As inspite of service defendants did not enter appearance within ten days of service of the summons on them, the plaintiff moved an application for passing decree for the suit amount which was allowed and judgment and decree dated 21/08/1997 was passed decreeing the suit for Rs. 49,35,184/- with interest pendentelite and future interest till realisation at the rate of 22 per cent per annum on Rs. 32,56,630a- and the costs against the defendants.

( 2 ) THIS IA (2592/98) has been filed by the defendants under provisions of Order XXXVII Rule 4 read with Section 151 of Code of Civil Procedure for setting aside ex-parte Judgment and decree dated 2 1/08/1997 and grant of leave to enter appearance and defend the suit. Notice in this application was served upon the plaintiff who filed reply contesting the application. In the application it is stated that there was no proper service on the defendants and in fact the address of the defendants as mentioned in the plaint itself was incorrect. This wrong address i. e. C-7. Greater Kailash-I, New Delhi was furnished by the plaintiff inspite of knowledge to the effect that defendant No. 1 had shifted its place of business from this address to M-49, Greater Kailash-1, New Delhi. Similarly address of defendant No. 2 was wrongly mentioned as R-7, Greater Kailash, New Delhi inspite of having full knowledge of the fact that she had shifted to A-6, Poorvi Marg, Vasant Vihar, New Delhi much prior to the filing of the suit. It was also submitted that counsel for the plaintiff who filed the plaint and appeared at the relevant time also had personal knowledge about the correct address of the defendants where they had shifted as he had been acting as counsel for and on behalf of defendants as well as husband of defendant No. 2 not only prior to the filing of the suit but even thereafter. Thus on the following premise the defendant is seeking setting aside of ex-parte judgment and decree:

I) wrong and incorrect address of defendants have been wilfully furnished by plaintiff in the plaint with mala fide intention to mislead this court;

II) the service report regarding attempt to effect the service on defendants through ordinary process is defective and the service reports are contradictory;

III) the service of defendants effected through publication in the English daily "the statesmen" on 30/11/1996 is defective and illegal;

IV) the judgment and decree dated 21/08/1997 has been obtained by plaintiff by practicing fraud and by misleading this court; and

V) the suit of the plaintiff is ex-facie false, frivolous, not maintainable in law, barred by limitation, hit by provisions of Section 34, Code of civil Procedure and is based upon incorrect statement of facts.

( 3 ) THE defendants have also dilated the aforesaid aspects in the application as well as oral submissions. It is submitted that communication dated 20/05/1996 was sent by the defendants to the plaintiff by registered post communicating the change of address. Copy of the said letter is annexed as Annexure-A along with the original postal receipt dated 21/05/1996 as Annexure-B. In order to show the knowledge of plaintiff s counsel about the current addresses of the defendants, certain documents are also filed. It is also averred that there is no specific denial of non-receipt of communication dated 20/05/1996 by the plaintiff in reply to the application. The defendants have also submitted t

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