Proper service of summons is essential for setting aside an ex parte decree, as per Rule 13 of Order IX of the Code of Civil Procedure.

JUDGMENT :

G.S. Sistani, J.

This is an application under Order IX Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908 filed by the Defendant for setting aside ex parte decree and order dated 20.4.2006 and order dated 10.12.2004 whereby the Defendant herein was proceeded ex parte.

2. The brief facts leading to filing of the present application are that the Plaintiffs filed the present suit for permanent injunction restraining passing off, rendition of accounts of profits, restraining passing off, rendition of accounts of profits, damages and delivery up, etc. against the Defendant. As none appeared on behalf of Defendant despite service, the Defendant was proceeded ex parte on 10.12.2004 and the suit was decreed on 20.4.2006 whereby while ranting permanent injunction, this Court also awarded damages of Rs. 5,00,000 and costs of Rs. 3,10,000.

3. Learned Counsel for the Defendant states that on 04.05.2006, while the Defendant's Company Secretary was going through a Hindi daily "Nav Bharat Times" of 24.4.2006, he came to know that the Defendant company has been fined for using the word "Scot". He then contacted the Director of the Defendant who then searched the matter on the website of this Court whereby it was revealed that the present suit was decreed ex parte on 20.04.2006. It is also stated that the Plaintiffs have misled this Court. Learned Counsel for the Defendant has vehemently denied having ever received any summons/notice of this Court. Further, the affidavit of service filed by the clerk of the counsel for the Plaintiffs does not disclose any mode and proof of service. The unsigned and unstamped slip of the courier company filed along with the affidavit of service does not bear the complete and proper address of the Defendant. The address given on the said courier slip is that of the District Headquarter, Alwar and the pin code also does not match with the pin code of the area where the plant of the Defendant is situated. The slip does not bear the signature of the person who is alleged to have received the summons and thus the same seems to be a procured one. It is also stated that the report of the process service of this Court discloses that on 16.5.2004 when he reached the office of the Defendant at A-18, Nariana Industrial Area, Phase-I, New Delhi, the persons present there told that there is no office of Defendant company in that building. It is stated that the premises at A-18, Nariana Industrial Area were being used as a Delhi office of the Defendant company by the earlier management of the Defendant and after the change in management, the said premises were vacated. It is also stated that the notices sent to the plant of the Defendant at Alwar were also not properly served. As per the report of the process server, the Defendant company was stated to be closed and the guard present there showed his inability to receive the notices. It is also stated that the signatures of the guard, namely, Krishan Prasad, obtained by the process server are different from the signatures on the AD card present on the Court file.

4. The long and short of the Defendant's grievance is that proper service has not been effected on the Defendant. The courier slip filed on record does not bear the signature of the person who is alleged to have received the summons. Service could also not be effected on the Delhi address of the Defendant. Summons have not been served on any of the directors, manager or responsible person or employee of the Defendant company.

5. Learned Counsel for the Plaintiff has vehemently countered the averments of the Defendant. Learned Counsel submits that apart from service through courier, notice was also sent to the Defendant's factory at Alwar through registered/AD post. The AD card clearly bears the signature of one Krishan Prasad who was the guard employed by the Defendant. The courier company in question, namely, M/s. Blue Dart Express Ltd., is approved by the Court. Further, the fact of hold