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 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:

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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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