Ex-Parte
Divorce Decree on the basis of refusal of Court Notice/Summon , sent by the
court to wife by various mode and several times.
Supreme Court of India
Parimal vs Veena @ Bharti on 8 February, 2011
Bench: P. Sathasivam, B.S. Chauhan
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:
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,