Parimal vs Veena @ Bharti

(Arising out of S.L.P.(C) NO. 19632 of 2007)

Parimal ... Appellant

Versus

Veena @ Bharti ...Respondent

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. Leave granted.

2. This appeal has been preferred against the judgment and order

dated 17.7.2007, passed by the High Court of Delhi at New Delhi, in

FAO No.63 of 2002, by which the High Court has allowed the

application under Order IX Rule 13 of the Code of Civil Procedure,

1908 (hereinafter called CPC), reversing the judgment and order dated

11.12.2001, passed by the Additional District Judge, Delhi.

3. FACTS:

(A) Appellant got married to the respondent/wife on 9.12.1986 and

out of the said wed lock, a girl was born. The relationship between

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the parties did not remain cordial. There was acrimony in the marriage

on account of various reasons. Thus, the appellant/husband filed a

case for divorce on 27.4.1989, under section 13(1)(i-a) and (i-b) of the

Hindu Marriage Act, 1955, against the respondent/wife.

(B) Respondent/wife refused to receive the notice of the petition

sent to her by the Court on 4.5.1989 vide registered AD cover for the

date of hearing on 6.7.1989. Respondent/wife on 28.6.1989 was

present at her house when the process server showed the summons to

her. She read the same and refused to accept it. Refusal was reported

by the process server, which was proved as Ex.OPW1/B.

(C) Again on 7.8.1989, she refused to accept the notice for

8.9.1989, sent by the Court through process server. The Court

ordered issuance of fresh notices. One was issued vide ordinary

process and the other vide Registered AD cover for 8.9.1989.

Registered AD was returned to the Court with report of refusal, as she

declined to receive the AD notice. Under the Court's orders,

summons were affixed at the house of the respondent/wife, but she

chose not to appear.

(D) She was served through public notice on 6.11.1989 published in

the newspaper `National Herald' which was sent to her address, 3/47,

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First Floor, Geeta Colony, Delhi. This was placed on record and was

not rebutted by the respondent/wife in any manner.

(E) After service vide publication dated 8.11.1989 as well as by

affixation, respondent/wife was proceeded ex- parte in the divorce

proceedings. Ex-parte judgment was passed by Addl. District Judge,

Delhi on 28.11.1989 in favour of the appellant/husband and the

marriage between the parties was dissolved.

(F) Two years after the passing of the decree of divorce, on

16.10.1991, the appellant got married and has two sons aged 17 and

18 years respectively from the said marriage.

(G) The respondent, after the expiry of 4 years of the passing of the

ex-parte decree of divorce dated 28.11.1989, moved an application

dated 17.12.1993 for setting aside the same basically on the grounds

that ex-parte decree had been obtained by fraud and collusion with the

postman etc., to get the report of refusal and on the ground that she

had not been served notice even by substituted service and also on the

ground that even subsequent to obtaining decree of divorce the

appellant did not disclose the fact of grant of divorce to her during the

proceedings of maintenance under Section 125 of the Code of

Criminal Procedure, 1973 (hereinafter called Cr.P.C.). The said

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application under Order IX, Rule 13 CPC was also accompanied by an

application under Section 5 of the Indian Limitation Act, 1963, for

condonation of delay.

(H) The trial Court examined the issues involved in the application

at length and came to the conclusion that respondent/wife miserably

failed to establish the grounds taken by her in the application to set

aside the ex-parte decree and dismissed the same vide order dated

11.12.2001.

(I) Being aggrieved, respondent/wife preferred First Appeal No.63

of 2002 before the Delhi High Court which has been allowed vide

judgment and order impugned herein. Hence, this appeal.

RIVAL SUBMISSIONS:

4. Shri M.C. Dhingra, Ld. counsel appearing for the appellant has

submitted that the service stood completed in terms of statutory

provisions of the CPC by the refusal of the respondent to take the

summons. Subsequently, the registered post was also not received by

her as she refused it. It was only in such circumstances that the trial

Court entertained the application of the appellant under Order V, Rule

20 CPC for substituted service. The summons were served by

publication in the daily newspaper `National Herald' published from

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Delhi which has a very wide circulation and further service of the said

newspaper on the respondent/wife by registered post. The High Court

committed a grave error by taking into consideration the conduct of

the appellant subsequent to the date of decree of divorce which was

totally irrelevant and unwarranted for deciding the application under

Order IX, Rule 13 CPC. More so, the High Court failed to take note

of the hard reality that after two years of the ex-parte decree the

appellant got married and now has two major sons from the second

wife. Therefore, the appeal deserves to be allowed and the judgment

impugned is liable to be set aside.

5. On the contrary, Ms. Geeta Dhingra, Ld. counsel appearing for

the respondent/wife has vehemently opposed the appeal, contending

that once the respondent/wife made the allegations of fraud and

collusion of the appellant with postman etc. as he succeeded in

procuring the false report, the burden of proof would be upon the

appellant and not upon the respondent/wife to establish that the

allegations of fraud or collusion were false. The conduct of the

appellant even subsequent to the date of decree of divorce, i.e. not

disclosing this fact to the respondent/wife during the proceedings

under Section 125 Cr.P.C., disentitles him from any relief before this

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court of equity. No interference is required in the matter and the

appeal is liable to be dismissed.

6. We have considered the rival submissions made by learned

counsel for the parties and perused the record.

7. Order IX, R.13 CPC:

The aforesaid provisions read as under:

"Setting aside decree ex-parte against defendant

In any case in which a decree is passed ex-parte against

a defendant, he may apply to the Court by which the de-

cree was passed for an order to set it aside; and if he sat-

isfies the Court that the summons was not duly served,

or that he was prevented by any sufficient cause from

appearing when the suit was called on for hearing, the

Court shall make an order setting aside the decree as

against him upon such terms as to costs, payment into

Court or otherwise as it thinks fit, and shall appoint a

day for proceeding with the suit;

xx xx xx

Provided further that no Court shall set aside a decree

passed ex-parte merely on the ground that there has been

an irregularity in the service of summons, if it is satisfied

that the defendant had notice of the date of hearing and

had sufficient time to appear and answer the plaintiff's

claim.

xx xx xx"

(Emphasis added)

8. It is evident from the above that an ex-parte decree against a

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defendant has to be set aside if the party satisfies the Court that

summons had not been duly served or he was prevented by

sufficient cause from appearing when the suit was called on for

hearing. However, the court shall not set aside the said decree on mere

irregularity in the service of summons or in a case where the

defendant had notice of the date and sufficient time to appear in the

court.

The legislature in its wisdom, made the second proviso,

mandatory in nature. Thus, it is not permissible for the court to allow

the application in utter disregard of the terms and conditions

incorporated in the second proviso herein.

9. "Sufficient Cause" is an expression which has been used in

large number of Statutes. The meaning of the word "sufficient" is

"adequate" or "enough", in as much as may be necessary to answer

the purpose intended. Therefore, word "sufficient" embraces no more

than that which provides a platitude which when the act done suffices

to accomplish the purpose intended in the facts and circumstances

existing in a case and duly examined from the view point of a

reasonable standard of a cautious man. In this context, "sufficient

cause" means that party had not acted in a negligent manner or there

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was a want of bona fide on its part in view of the facts and

circumstances of a case or the party cannot be alleged to have been

"not acting diligently" or "remaining inactive". However, the facts

and circumstances of each case must afford sufficient ground to

enable the Court concerned to exercise discretion for the reason that

whenever the court exercises discretion, it has to be exercised

judiciously. (Vide: Ramlal & Ors. v. Rewa Coalfields Ltd., AIR

1962 SC 361; Sarpanch, Lonand Grampanchayat v. Ramgiri

Gosavi & Anr., AIR 1968 SC 222; Surinder Singh Sibia v. Vijay

Kumar Sood, AIR 1992 SC 1540; and Oriental Aroma Chemical

Industries Limited v. Gujarat Industrial Development

Corporation & Another, (2010) 5 SCC 459)

10. In Arjun Singh v. Mohindra Kumar & Ors., AIR 1964 SC

993, this Court observed that every good cause is a sufficient cause

and must offer an explanation for non-appearance. The only

difference between a "good cause" and "sufficient cause" is that the

requirement of a good cause is complied with on a lesser degree of

proof than that of a "sufficient cause". (See also: Brij Indar Singh v.

Lala Kanshi Ram & Ors., AIR 1917 P.C. 156; Manindra Land

and Building Corporation Ltd. v. Bhutnath Banerjee & Ors., AIR

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1964 SC 1336; and Mata Din v. A. Narayanan, AIR 1970 SC 1953).

11. While deciding whether there is a sufficient cause or not, the

court must bear in mind the object of doing substantial justice to all

the parties concerned and that the technicalities of the law should

not prevent the court from doing substantial justice and doing away

the illegality perpetuated on the basis of the judgment impugned

before it. (Vide: State of Bihar & Ors. v. Kameshwar Prasad

Singh & Anr., AIR 2000 SC 2306; Madanlal v. Shyamlal, AIR

2002 SC 100; Davinder Pal Sehgal & Anr. v. M/s. Partap Steel

Rolling Mills (P) Ltd. & Ors., AIR 2002 SC 451; Ram Nath Sao

alias Ram Nath Sao & Ors. v. Gobardhan Sao & Ors., AIR 2002 SC

1201; Kaushalya Devi v. Prem Chand & Anr. (2005) 10 SCC 127;

Srei International Finance Ltd., v. Fair growth Financial Services

Ltd. & Anr., (2005) 13 SCC 95; and Reena Sadh v. Anjana

Enterprises, AIR 2008 SC 2054).

12. In order to determine the application under Order IX, Rule 13

CPC, the test has to be applied is whether the defendant honestly and

sincerely intended to remain present when the suit was called on for

hearing and did his best to do so. Sufficient cause is thus the cause for

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which the defendant could not be blamed for his absence. Therefore,

the applicant must approach the court with a reasonable defence.

Sufficient cause is a question of fact and the court has to exercise its

discretion in the varied and special circumstances in the case at hand.

There cannot be a strait-jacket formula of universal application.

PRESUMPTION OF SERVICE BY REGISTERED POST &

BURDEN OF PROOF:

13. This Court after considering large number of its earlier

judgments in Greater Mohali Area Development Authority & Ors.

v. Manju Jain & Ors., AIR 2010 SC 3817, held that in view of the

provisions of Section 114 Illustration (f) of the Evidence Act, 1872

and Section 27 of the General Clauses Act, 1897 there is a

presumption that the addressee has received the letter sent by

registered post. However, the presumption is rebuttable on a

consideration of evidence of impeccable character. A similar view

has been reiterated by this Court in Dr. Sunil Kumar Sambhudayal

Gupta & Ors. v. State of Maharashtra, JT 2010 (12) SC 287.

14. In Gujarat Electricity Board & Anr. v. Atmaram Sungomal

Poshani, AIR 1989 SC 1433, this Court held as under:

"There is presumption of service of a letter sent

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under registered cover, if the same is returned

back with a postal endorsement that the addressee

refused to accept the same. No doubt the

presumption is rebuttable and it is open to the

party concerned to place evidence before the

Court to rebut the presumption by showing that

the address mentioned on the cover was incorrect

or that the postal authorities never tendered the

registered letter to him or that there was no

occasion for him to refuse the same. The burden

to rebut the presumption lies on the party,

challenging the factum of service."

(Emphasis added)

15. The provisions of Section 101 of the Evidence Act provide that

the burden of proof of the facts rests on the party who substantially

asserts it and not on the party who denies it. In fact, burden of proof

means that a party has to prove an allegation before he is entitled to a

judgment in his favour. Section 103 provides that burden of proof as

to any particular fact lies on that person who wishes the court to

believe in its existence, unless it is provided by any special law that

the proof of that fact shall lie on any particular person. The provision

of Section 103 amplifies the general rule of Section 101 that the

burden of proof lies on the person who asserts the affirmative of the

facts in issue.

PRESENT CONTROVERSY:

1 16. The case at hand is required to be considered in the light of the

aforesaid settled legal propositions. The trial Court after appreciating

the entire evidence on record and pleadings taken by the parties

recorded the following findings:

"The applicant/wife as per record was served with

the notice of the petition, firstly, on 4.5.89 when

she had refused to accept the notice of the petition

vide registered AD cover for the date of hearing

i.e. 6.7.89 and thereafter on 7.8.89 when again she

refused to accept the notice for 8.9.89 and

thereafter when the notice was published in the

newspaper `National Herald' on 6.11.89. The

UPC Receipt dated 6.11.89 vide which the

newspaper `National Herald' dated 6.11.89 was

sent to the respondent/applicant at her address

3/47, First Floor, Geeta Colony, Delhi is on

record and has not been rebutted in any manner.

In these circumstances, the application u/o 9 Rule

13 CPC filed by the respondent/applicant/wife on

7.1.1994 is hopelessly barred by time and no

sufficient ground has been shown by the

applicant/wife for condoning the said inordinate

delay."

17. So far as the High Court is concerned, it did not deal with this

issue of service of summons or as to whether there was "sufficient

cause" for the wife not to appear before the court at all, nor did it set

aside the aforesaid findings recorded by the trial Court. The trial

Court has dealt with only the aforesaid two issues and nothing else.

1 The High Court has not dealt with these issues in correct perspective.

The High Court has recorded the following findings:

"The order sheets of the original file also deserve

a look. The case was filed on 1.5.1989. It was

ordered that respondent be served vide process fee

and Regd. AD for 6.7.1989. The report of process

server reveals that process server did not identify

the appellant and she was identified by the

respondent himself. In next date's report

appellant was identified by a witness. The Retd.

AD mentions only one word "refused". It does

not state that it was tendered to whom and who

had refused to accept the notice. The case was

adjourned to 8.9.1989. It was recorded that

respondent had refused to take the notice. Only

one word, "Refused" appears on this registered

envelope as well. On 8.9.1989 itself it was

reported that respondent had refused notice and

permission was sought to move an application

under Order 5 Rule 20 of CPC. On 8.9.1989,

application under Section 5 Rule 20 CPC was

moved and it was ordered that the appellant be

served through "National Herald". The

presumption of law if any stands rebutted by the

statement made by the appellant because she has

stated that she was staying in the said house of

her brother for a period of eight months. The

version given by her stands supported by the

statement made by her brother."

(Emphasis added)

18. The High Court held that presumption stood rebutted by a bald

statement made by the respondent/wife that she was living at different

address with her brother and this was duly supported by her brother

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who appeared as a witness in the court. The High Court erred in not

appreciating the facts in the correct perspective as substituted service

is meant to be resorted to serve the notice at the address known to the

parties where the party had been residing last. (Vide Rabindra Singh

v. Financial Commissioner, Cooperation, Punjab & Ors., (2008) 7

SCC 663).

19. More so, it is nobody's case that respondent/wife made any

attempt to establish that there had been a fraud or collusion between

the appellant and the postman. Not a single document had been

summoned from the post office. No attempt has been made by the

respondent/wife to examine the postman. It is nobody's case that the

"National Herald" daily newspaper published from Delhi did not have

a wide circulation in Delhi or in the area where the respondent/wife

was residing with her brother. In such a fact-situation, the impugned

order of the High Court becomes liable to be set aside.

20. The appellate Court has to decide the appeal preferred under

Section 104 CPC following the procedure prescribed under Order

XLIII, Rule 2 CPC, which provides that for that purpose, procedure

prescribed under Order XLI shall apply, so far as may be, to appeals

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from orders. In view of the fact that no amendment by Delhi High

Court in exercise of its power under Section 122 CPC has been

brought to our notice, the procedure prescribed under Order XLI, Rule

31 CPC had to be applied in this case. .

21. Order XLI, Rule 31 CPC provides for a procedure for deciding

the appeal. The law requires substantial compliance of the said

provisions. The first appellate Court being the final court of

facts has to formulate the points for its consideration and

independently weigh the evidence on the issues which arise for

adjudication and record reasons for its decision on the said

points. The first appeal is a valuable right and the parties have a

right to be heard both on question of law and on facts. (vide:

Moran Mar Basselios Catholicos & Anr. v. Most Rev. Mar

Poulose Athanasius & Ors., AIR 1954 SC 526; Thakur

Sukhpal Singh v. Thakur Kalyan Singh & Anr., AIR 1963

SC 146; Santosh Hazari v. Purshottam Tiwari, AIR 2001

SC 965; Madhukar v. Sangram, AIR 2001 SC 2171; G.

Amalorpavam & Ors. v. R.C. Diocese of Madurai & Ors.,

(2006) 3 SCC 224; Shiv Kumar Sharma v. Santosh Kumari,

(2007) 8 SCC 600; and Gannmani Anasuya & Ors. v.

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Parvatini Amarendra Chowdhary & Ors., AIR 2007 SC

2380).

22. The first appellate Court should not disturb and interfere with

the valuable rights of the parties which stood crystallised by the trial

Court's judgment without opening the whole case for re-hearing both

on question of facts and law. More so, the appellate Court should not

modify the decree of the trial Court by a cryptic order without taking

note of all relevant aspects, otherwise the order of the appellate Court

would fall short of considerations expected from the first appellate

Court in view of the provisions of Order XLI, Rule 31 CPC and such

judgment and order would be liable to be set aside. (Vide B.V.

Nagesh & Anr. v. H.V. Sreenivassa Murthy, JT (2010) 10 SC 551).

23.In view of the aforesaid statutory requirements, the High Court

was duty bound to set aside at least the material findings on the

issues, in spite of the fact that approach of the court while dealing

with such an application under Order IX, Rule 13 CPC would be

liberal and elastic rather than narrow and pedantic. However, in

case the matter does not fall within the four corners of Order IX,

Rule 13 CPC, the court has no jurisdiction to set aside ex-parte

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decree. The manner in which the language of the second proviso to

Order IX, Rule 13 CPC has been couched by the legislature makes

it obligatory on the appellate Court not to interfere with an ex-parte

decree unless it meets the statutory requirement.

24. The High Court has not set aside the material findings recorded

by the trial Court in respect of service of summons by process

server/registered post and substituted service. The High Court failed

to discharge the obligation placed on the first appellate Court as none

of the relevant aspects have been dealt with in proper perspective. It

was not permissible for the High Court to take into consideration the

conduct of the appellant subsequent to passing of the ex-parte decree.

More so, the High Court did not consider the grounds on which

the trial Court had dismissed the application under Order IX, Rule 13

CPC filed by the respondent/wife. The appeal has been decided in a

casual manner.

25. In view of the above, appeal succeeds and is allowed. The

judgment and order dated 17.7.2007 passed by the High Court of

Delhi in FAO No. 63 of 2002 is set aside and the judgment and order

of the trial Court dated 11.12.2001 is restored.

1 Before parting with the case, it may be pertinent to mention

here that the court tried to find out the means of re-conciliation of the

dispute and in view of the fact that the appellant got married in 1991

and has two major sons, it would not be possible for him to keep the

respondent as a wife. A lump sum amount of Rs. 5 lakhs had been

offered by Shri M.C. Dhingra, Ld. counsel for the appellant to settle

the issue. However, the demand by the respondent/wife had been of

Rs. 50 lakhs. Considering the income of the appellant as he had

furnished the pay scales etc., the court feels that awarding a sum of

Rs. 10 lakhs to the wife would meet the ends of justice as a lump sum

amount of maintenance for the future. The said amount be paid by the

appellant to the respondent in two equal instalments within a period of

six months from today. The first instalment be paid within three

months.

.............................J.

(P. SATHASIVAM)

.............................J.

(Dr. B.S. CHAUHAN)

New Delhi,

February 8, 2011

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