LAW FOR ALL

Thursday, February 17, 2011

MARUTI 800 CAR- INCREASE IN EXCISE DUTY PAYABLE BY WHOM ?

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION(Civil) No(s).10364/2006

RAVINDER RAJ Petitioner(s)

VERSUS

M/S. COMPETENT MOTORS CO. PVT. LTD.&ANR. Respondent(s)

WITH SLP(C) NO. 9739-9740 of 2009

O R D E R

Two Special Leave Petitions, being SLP(C)

Nos. 10364 of 2006 and 9739-9740 of 2009, have

been filed against the judgment and order dated

19th July, 2005, passed by the National Consumer

Disputes Redressal Commission at New Delhi in

Revision Petition No.1485 of 2005 and the order

dated 7th August, 2008 passed by the said

Commission in Revision Petition No.2974 of 2005

filed by the respondent No.1, Maruti Udyog

Limited and also M.A.No.599 of 2006 in Revision

Petition 1533 of 2005 filed by the respondent

No.2, namely, Competent Motors Co.Pvt.Ltd., the

dealer.

2. The petitioner, Mr. Ravinder Raj, who is

appearing in person, applied to Maruti Udyog

Ltd.in 1985-1986 for booking a Maruti Car-800 and

deposited a sum of Rs.10,000/- as initial/advance

booking payment. On 15th July, 1988, the

respondent No.2 informed the petitioner by letter

of even date that his Maruti Car Allotment

No.0802-N-04051 had matured for delivery and

requested the petitioner to make payment of the

full amount of the price of the car for delivery

of the vehicle after completing the necessary

formalities. Pursuant to the above letter, the

petitioner on 16th February, 1989, paid a total

amount of Rs.78,351.05 which covered the price of

the vehicle, insurance charges and other minor

charges, including registration charges. There

is no denial that the petitioner had opted for a

cream colour vehicle.

3. On 1st March, 1989, there was an increase

in the excise duty payable, causing a price hike

of about Rs.6710.61. On 18th March, 1989, the

petitioner received a letter from the respondent

No.2 to deposit the excess amount payable as

excise duty, and, accordingly, the petitioner did

so under protest on 16th February, 1989.

4. The official billing in respect of the car

was done on 5th April, 1989.

5. The petitioner has contended that the

delay in delivery of the vehicle to him by the

respondents was not occasioned by any failure or

negligence on his part and the liability to pay

the increased amount on account of increase in

excise duty, was not that of the petitioner, but

of the respondents concerned. The petitioner,

therefore, applied to the District Consumer Forum

for a direction upon the respondents to bear the

increase in excise duty resulting in increase in

the price. Such a prayer was rejected by the

District Consumer Forum. The petitioner then

went to the State Forum which allowed the

petitioner's claim. Against the said order,

the respondents went before the National

Commission, which reversed the order passed by

the State Forum. It is against the said order

that the petitioner has come to this Court by way

of this Special Leave Petition.

6. As indicated hereinabove, the main ground

urged by the petitioner is that since he was not

responsible for the delay in the delivery of the

vehicle, he should not be made to bear the

increase in the price, particularly, when from

the documents, as indicated by him, the vehicle

of the colour chosen by him was available with

the respondents. He, therefore, submitted that

the order of the National Forum was erroneous and

was liable to be set aside.

7. Appearing for the dealer, M/s.Competent

Motors Co.Pvt.Ltd., Ms. Sapna Sinha, learned

advocate pointed out that even from the receipt

of the amount paid by the petitioner on 16th

February, 1989, it will be clear that the amount

paid was subject to the price prevailing on the

date of the invoice. According to learned

counsel, since the bill was dated 5th of April,

1989, it was the petitioner who was required to

bear the increase in price on account of the

increase in excise duty. Furthermore, she

reiterated that the colour which the petitioner

had wanted was not available at that point of

time, although, from the documents it would

appear that the same was available. According

to her, the said documents only indicated that

these were the colours in which the cars were

being manufactured and did not really indicate

the fact that such a colour was available on a

particular date.

8. According to her, there was no negligence

on the part of the dealer since having received

intimation about the readiness of the vehicle,

the respondent No.2 had immediately informed the

petitioner, but unfortunately, in the meantime,

the price had risen. According to the learned

counsel, the respondent No.2 could not,

therefore, be made liable for the increase in the

price.

9. Mr. Dayal, appearing for the the Maurti

Udyog Limited, while adopting the submissions

made by Ms. Sinha, also added that having regard

to Section 64 of the Sale of Goods Act, 1930,

the burden of any increase in the price by way of

additional taxes would have to be borne by the

customer and not by the manufacturer. He also

reiterated that since there was no negligence on

the part of the manufacturer in making the

vehicle available to the petitioner and since no

mala fide intention had been proved, the

petitioner would have to bear the increase in the

prices.

10. Having considered the submissions made, we

may refer to the letter of 15th July, 1988, which

had been written on behalf of the respondent No.2

to the petitioner indicating that the

petitioner's allotment No. had matured for

delivery. In the second paragraph of the letter,

the respondent No.2 requested the petitioner to

complete the modalities for effecting delivery of

the car against the allotment number. It was

categorically indicated that on receiving

payment, delivery would be effected in the

sequence of priority. Coupled with the above is

the proforma invoice dated 15th July, 1988, where

it was further indicated that the price

prevailing at the time of billing would be

applicable, despite the fact that the details of

the price of the vehicle were set out in the said

invoice.

11. As indicated hereinabove, even in the

receipt given to the petitioner for payment of

the amount in the proforma invoice, it had been

indicated that the prices prevailing on the date

of billing would apply.

12. In this case, the billing was done on 5th

of April, 2009. In the absence of any evidence

of any deliberate intention on the part of the

respondents to delay delivery of the vehicle, we

are unable to agree with the petitioner that the

increase in price has to be borne by the

respondents. The petitioner had relied on two

decisions of this Court in the case of Omprakash

Vs. Assistant Engineer, Haryana Agro Industries

Corpn. Ltd., 1994(3)SCC 504 and Mohinder Pratap

Dass Vs Modern Automobiles and Anr. 1995(3)SCC

581, on the same issue. The said two decisions

in our view are not applicable to the facts of

this case, on account of the fact that in the

said two matters patent deficiency in the service

had been found by the Court and it was also

pointed out that there was no satisfactory

explanation for the delay in delivery of the

goods to the consumers, which is not the case as

far as this particular matter is concerned.

13. Furthermore, having regard to the

provisions of Section 46A(1)(b) of the Sale of

Goods Act, 1930, it is the liability of the

petitioner to pay the extra price when the excise

duty had been enhanced prior to the delivery of

the vehicle.

14. In such circumstances, the Special Leave

Petition fails and is dismissed.

15. Consequently, in view of this order, the

other Special Leave Petition in which interest

on the amount claimed has been prayed for, does

not survive and is also dismissed.

16. There will, however, be no orders as to

costs in both the matters.

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

(ALTAMAS KABIR)

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

(CYRIAC JOSEPH)

New Delhi,

February 10, 2011.

Wednesday, February 16, 2011

ABOUT THE PLIGHTS OF PROSTITUTES

   REPORTABLE

   IN THE SUPREME COURT OF INDIA

   CRIMINAL APPELLATE JURISDICTION

   CRIMINAL APPEAL NO. 135 OF 2010

Budhadev Karmaskar ..Appellant

   versus

State of West Bengal ..Respondents

   O R D E R

   Heard learned counsel for the appellant.

   This Appeal has been filed against the impugned

judgment and order dated 25th July, 2007 passed by the High

Court of Calcutta in C.R.A. No. 487 of 2004.

   The facts have been set out in the impugned judgment

and hence we are not repeating the same here except wherever

necessary.

   This is a case of brutal murder of a sex worker.

Sex workers are also human beings and no one has a right to

assault or murder them. A person becomes a prostitute not

because she enjoys it but because of poverty. Society must

have sympathy towards the sex workers and must not look down

upon them. They are also entitled to a life of dignity in

view of Article 21 of the Constitution.

   In the novels and stories of the great Bengali

Writer Sharat Chand Chattopadhyaya, many prostitutes have
been shown to be women of very high character, e.g.,

Rajyalakshmi in 'Shrikant', Chandramukhi in 'Devdas' etc.

   -2-

The plight of prostitutes has been depicted by the great

Urdu poet Sahil Ludhianvi in his poem 'Chakle' which has

been sung in the Hindi film Pyasa "Jineh Naaz Hai Hind Per

wo kahan hain" (simplified version of the verse 'Sana Khwan-

e-taqdees-e-Mashrik Kahan Hain').

   We may also refer to the character Sonya Marmelodov

in Dostoyevsky's famous novel 'Crime and Punishment'. Sonya

is depicted as a girl who sacrifices her body to earn some

bread for her impoverished family.

   Reference may also be made to Amrapali, who was a

contemporary of Lord Buddha.

   In the present case, the incident happened on 17th

September, 1999 at about 9.15 p.m. The deceased Chayay Rani

Pal alias Buri was living in a red light area and was a

resident of Room No.8 of Premises No.19, Jogen Dutta Lane in

Calcutta. She was evidently a sex worker. The appellant

Budhadev kicked her with fists and legs, and she fell down

on the floor. The appellant then caught her by her hair and

banged her head against the floor and the wall several times

which left the victim bleeding from her ear, nose and head.

The incident was witnessed by four persons, Pw2-Abida, PW4-

Maya, PW7-Asha and PW8-Parvati.

   PW2-Abida has deposed that she saw the appellant-
accused catching the victim by her hair and banging her head

against the wall. The victim was profusely bleeding through

her nose and mouth. On seeing this, Abida started shouting

and then the accused pushed her and went down and fled away.

PW8-Parvati saw the victim being mercilessly beaten by the

   -3-

accused-appellant, and the same is the evidence of PW7-Asha.

In the post mortem, as many as 11 injuries on the body of

the victim were found, eight of which were on various parts

of the face and forehead.

   The police was informed about the incident over the

telephone as is evident from the testimony of PW2 Abida.

After the police arrived on the spot, sample of the blood

spilled from the body of the victim was collected and

photographs taken. The victim was brought by Asha Khatoon

and others to the hospital where she was found 'dead on

arrival'. Blood was oozing out from her ear and nostril.

There was swelling on the left eyeball and left eyebrow.

Thus, the medical evidence corroborates the ocular

testimony.

   PW10-Dr. Amitava Das, the Medical Officer who held

the post mortem examination of the dead body of deceased

Chhaya Rani Pal found the following injuries on her person:

   1) Abrasion 1" x = " over the nose just below
   the nasal bridge.
   2) Abrasion = " x = " over left side forehead =
   " above left eyebrow 3" left to midline.
3) Abrasion = " x = " over left side of
   forehead just over the left eye brow 2" left
   mid line.
   4) Bruise 2" x 1" over left upper eye lid.
   5) Bruise 2" x 1" over anterior aspect of mid
   part of nose.
   6) Abrasion = " x < " over right side of
   forehead 1" above right eye brow 2" right to
   mid line.
   7) Abrasion 2" x 1" over right side of face
   just below the right eye and just right to
   outer canthus of right eye.
   8) Lacerated wound = " x < " x scalp over left
   partial region 4 = " left to anterior mid
   line and 2" below left parietal eminence.
   -4-

   9) Abrasion 3" x = " over posteriorateral
   aspect of right forehead 1" below right
   elbow.
   10)Abrasion 1" x = " over anterior medial
   aspect of lower part of right forearm 1"
   above right wrist.
   11)Abrasion 4" x 3" over upper part of
   posterior aspect of right thigh 7" above
   right knee joint.

   On dissection, the Doctor found the following

injuries:

   1) Heamatoma 3 = " x 2" in the scalp tissue
   over right frontal region.
   2) Heamatoma 3 = " x 2" in the scalp tissue
   over left frontal region.
   3) Haematoma 3 = " x = " in the scalp tissue
   over left partial region.
   4) Fissured fracture 3" long more or loss
   longitudinal over left parietal temporal
   bone.
   5) Haematoma 2" x 1" in the scalp tissue over
   right parietal region.
   6) Subdural hemorrhage present involving the
   right parietal and temporal lobe.
   7) Lacerated wound = " (half) x < " x substance
   over right parietal lobe of brain substance.
   The abrasions were non-scabbed and red in
   colour. The bruises were dark red in
   colour. The margins of the lacerated wounds
   were irregular and red in colour. All the
   injuries showed signs of vital reactions. No
other injury except those described could be
   detected even on careful dissection and
   examination.

   PW10 Dr. Amitava Das, Medical Officer of Mauza

Burdwan Medical College, opined that the death was due to

the effect of the injuries as noted anti-mortem in nature;

that all the injuries as noted in the post mortem

examination report might be caused if a person pushed

against the wall and it may be homicidal in nature."

   The injuries above-mentioned show the brutality of

   -5-

the crime. The head of the deceased was battered again and

again in a hideous and barbaric manner.

   The trial Court has rightly convicted the appellant

under Section 302 IPC and sentenced him to life imprisonment

and the High Court has not committed any error in upholding

the conviction and sentence imposed by the trial Court.

   We find no reason to disbelieve the testimony of the

eye witnesses in this case, namely, PW2, PW7 and PW8 which

corroborates the medical evidence. The appellant-accused has

committed murder in a brutal manner of a helpless women and

deserves no sympathy from this Court.

   For the reasons given above, this appeal is

dismissed.

   Although we have dismissed this Appeal, we strongly

feel that the Central and the State Governments through

Social Welfare Boards should prepare schemes for
rehabilitation all over the country for physically and

sexually abused women commonly known as prostitutes as we

are of the view that the prostitutes also have a right to

live with dignity under Article 21 of the Constitution of

India since they are also human beings and their problems

also need to be addressed.

   As already observed by us, a woman is compelled to

indulge in prostitution not for pleasure but because of

abject poverty. If such a woman is granted opportunity to

avail some technical or vocational training, she would be

able to earn her livelihood by such vocational training and

   -6-

skill instead of by selling her body.

   Hence, we direct the Central and the State

Governments to prepare schemes for giving

technical/vocational training to sex workers and sexually

abused women in all cities in India. The schemes should

mention in detail who will give the technical/vocational

training and in what manner they can be rehabilitated and

settled by offering them employment. For instance, if a

technical training is for some craft like sewing garments,

etc. then some arrangements should also be made for

providing a market for such garments, otherwise they will

remain unsold and unused, and consequently the women will
not be able to feed herself.

   We propose to have the response of the Centre and

the States in this regard and hence the case shall be

listed before us again on 04.05.2011 to be taken up as

first case on which date the first compliance report

indicating therein the first steps taken by the Central and

the State Governments in this regard shall be submitted.

   Issue notice to the Central Government and all the

State Governments which will also file responses by the

date fixed for hearing.

   ...........................J.
   [MARKANDEY KATJU]

NEW DELHI; ...........................J.
FEBRUARY 14, 2011 [GYAN SUDHA MISRA]

Saturday, February 12, 2011

no grounds to set aside exparte divorce decree

   REPORTABLE

   IN THE SUPREME COURT OF INDIA

   CIVIL APPELLATE JURISDICTION

   CIVIL APPEAL NO...1467... OF 2011

   (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

   1

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,

   2

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

   3

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

   4

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

   5

   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

   6

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

   7

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

   8

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

11. While deciding whether there is a sufficient case 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

   9

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

   1

   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:

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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.

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   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.

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   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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