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Code of Civil Procedure, 1908: Order IX Rule 13, second proviso – Ex parte decree, when can be set aside – Held: An ex-parte decree can be set aside if the defendant satisfies the court that summons were not duly served or he was prevented by sufficient cause from appearing when the suit was called 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 defendant had notice of the date and sufficient time to appear in the court – In order to determine the application under Order IX, Rule 13, the test that has to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called for hearing and did his best to do so – Sufficient cause is to be judged by reasonable standard of cautious man – In the instant case, trial court passed ex parte decree for divorce in favour of the husband – High Court set aside the ex parte decree without dealing with the issue of service of summons – 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 – Order of the High Court not sustainable – However, in order to meet the ends of justice, a sum of Rs.10 lakhs awarded to wife as a lump sum amount for maintenance – Compromise/Settlement. Order XLIII, Rule 2 – Appeal from orders – Power of appellate court to interfere with an ex-parte order – Held: The first appeal is a valuable right and the parties have a right to be heard both on question of law and on facts – 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 and such judgment and order would be liable to be set aside – The manner in which the language of the second proviso to Order IX, Rule 13 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. Evidence Act, 1872: s.114, Illustration (f) – Presumption of service – Registered letter – Held: There is a presumption of service of registered letter – However, the presumption is rebuttable on a consideration of evidence of impeccable character – General Clauses Act, 1897 – s.27. ss.101, 103 – Burden of proof of facts – Held: Rests on the party who substantially asserts it and not on the party who denies it – 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. Practice and procedure: 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 – Code of Civil Procedure, 1908. Words and phrases: “Sufficient”, “Sufficient Cause” – Meaning of. The appellant-husband filed a divorce petition against the respondent-wife. A notice of petition was sent to her by court which she allegedly refused to accept. The notice was sent again on 7.8.1989, which the respondent again refused to accept. The notice sent by registered AD was also returned to the court with report of refusal. Under the court’s order, summons were affixed at the house of the respondent, but she did not appear. She was also served through public notice published in a newspaper, which was also sent to her. Thereafter, on 08.11.1989, the respondent was proceeded ex parte and ex parte judgment was passed in favour of the appellant and the marriage between the parties was dissolved. Two years after the passing of the decree of divorce, the appellant got married and became father of two sons from the said marriage. The respondent, after the expiry of 4 years of the passing of the ex-parte decree of divorce filed an application under Order IX Rule 13, CPC for setting aside the same 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 that she had not been served notice even by substituted service and also 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 Cr.P.C. The said application was accompanied by an application under Section 5 of the Limitation Act, 1963, for condonation of delay. The trial court dismissed the applications. The High Court set aside the order of the trial court. The instant appeal was filed challenging the order of the High Court. =Allowing the appeal, the Court Held: 1.1. An ex-parte decree against a 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. It is not permissible for the court to allow the application in utter disregard of the terms and conditions incorporated in the second proviso to Order IX Rule 13, CPC. “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 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. [Paras 8 and 9] [662-A-G] 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; Oriental Aroma Chemical Industries Limited v. Gujarat Industrial Development Corporation & Another (2010) 5 SCC 459);Arjun Singh v. Mohindra Kumar & Ors. AIR 1964 SC 993; Brij Indar Singh v. Lala Kanshi Ram & Ors. AIR 1917 P.C. 156; Manindra Land and Building Corporation Ltd. v. Bhutnath Banerjee & Ors. AIR 1964 SC 1336; Mata Din v. A. Narayanan AIR 1970 SC 1953 – relied on. 1.2. 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 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. [Para 11] [663-C-E] 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; Reena Sadh v. Anjana Enterprises AIR 2008 SC 2054) – relied on. 1.3. In order to determine the application under Order IX, Rule 13 CPC, the test that 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 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. [Para 12] [663-F-H] 2.1. 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. 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. The High court did not deal with the 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 said findings recorded by the trial court. 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 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. More so, it was 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 was summoned from the post office. No attempt was 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 was liable to be set aside. [Paras 13,15, 17, 18 and 19] [664-B-C; G- H; 665-A-B; 666-G-H; 667-A-C] Greater Mohali Area Development Authority & Ors. v. Manju Jain & Ors. AIR 2010 SC 3817; Dr. Sunil Kumar Sambhudayal Gupta & Ors. v. State of Maharashtra, JT 2010 (12) SC 287; Gujarat Electricity Board & Anr. v. Atmaram Sungomal Poshani AIR 1989 SC 1433 and Rabindra Singh v. Financial Commissioner, Cooperation, Punjab & Ors. (2008) 7 SCC 663 – relied on. 2.2. 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 from orders. 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. [Para 20 and 21] [667-D- G] 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; Gannmani Anasuya & Ors. v. Parvatini Amarendra Chowdhary & Ors. AIR 2007 SC 2380 – relied on. 2.3. 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. In view of the said 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 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. 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. [Paras 22, 23 and 24] [668-G-H; 669-A] B.V. Nagesh & Anr. v. H.V. Sreenivassa Murthy, JT (2010) 10 SC 551 – relied on. 3. 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 the 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. An award 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. [Para 25] [669-B-E] Case Law Reference: AIR 1962 SC 361 Relied on Para 9 AIR 1968 SC 222 Relied on Para 9 AIR 1992 SC 1540 Relied on Para 9 (2010) 5 SCC 459) Relied on Para 9 AIR 1964 SC 993 Relied on Para 10 AIR 1917 P.C. 156 Relied on Para 10 AIR 1964 SC 1336 Relied on Para 10 AIR 1970 SC 1953 Relied on Para 10 AIR 2000 SC 2306 Relied on Para 11 AIR 2002 SC 100 Relied on Para 11 AIR 2002 SC 451 Relied on Para 11 AIR 2002 SC 1201 Relied on Para 11 (2005) 10 SCC 127 Relied on Para 11 (2005) 13 SCC 95 Relied on Para 11 AIR 2008 SC 2054) Relied on Para 11 AIR 2010 SC 3817 Relied on Para 13 JT 2010 (12) SC 287 Relied on Para 13 AIR 1989 SC 1433 Relied on Para 14 (2008) 7 SCC 663) Relied on Para 18 AIR 1954 SC 526 Relied on Para 21 AIR 1963 SC 146 Relied on Para 21 AIR 2001 SC 965 Relied on Para 21 AIR 2001 SC 2171 Relied on Para 21 (2006) 3 SCC 224 Relied on Para 21 (2007) 8 SCC 600 Relied on Para 21 AIR 2007 SC 2380) Relied on Para 21 JT (2010) 10 SC 551) Relied on Para 22 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1467 of 2011. From the Judgment & Order dated 17.7.2007 of the High Court of Delhi at New Delhi in FAO No. 63 of 2002. Vikrant Yadav, Vishal Malik, Piyush Kant Roy, Gaurav Dhingra, M.C. Dhingra for the Appellant. Geeta Dhingra, Chander Shekhar Ashri for the Respondent.

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 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 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 

 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:

 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 

 1

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 

 1

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. 

 1

 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. 

 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

 11

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