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
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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 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
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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:
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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
1
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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