PARIMALversusVEENA @ BHARTI

                             [2011) 2 S.C.R. 648

    A                             PAR IMAL
                                      v.
                              VEENA @ BHARTI
                       (Civil Appeal No. 1467 of 2011)

                             FEBRUARY 8, 2011
    B
             [P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.]

              Code of Civil Procedure, 1908: Order IX Rule 13, second
        proviso - Ex parte decree, when can be set aside - Held: 'An
    C    ex-parte decree can be set aside if the defendant satisfies the
         court that summons were not duly seNed 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 seNice of summons or in
    D    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
    E    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
.t ..
         favour of the husband - High Court set aside the ex parte
         decree without dealing with the issue of seNice. of summons
    F   - 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
    G    amount for maintenance - Compromise/Settlement.
              Order XL/I/, 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

    H                                 648
            PARIMAL v. VEENA @ BHARTI                      649

  be heard both on question of law and on facts - The first A
  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 B
  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 XL/, Rule 31 and such judgment
  and order would be liable to be set aside - The manner in c
  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:                                          D

       s. 114, Illustration (f) - Presumption of service -
  Registered letter - Held: There is a presumptiop of service
. of registered letter - However, the presumption is rebuttable
  on a consideration of evidence of impeccable character -         E
  General Clavses 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,     F
 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 G
 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.
                                                                   H
    650      SUPREME COURT REPORTS             [2011] 2 S.C.R.

A        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
e   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
    newspap'lr, which was also sent to her. Thereafter, on
c   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
D 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
E 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
F 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.
G       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
H
           PARIMAL v. VEENA @ BHARTI                  651


     HELD: 1.1. An ex-parte decree against a defendant A
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 B
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. c
"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
                                                              0
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 E
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 F
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]
     Ram/al & Ors. v. Rewa Coalfields Ltd. AIR 1962 SC 361; G
 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);Atjun Singh v. Mahindra Kumar H
    652    SUPREME COURT REPORTS               [2011] 2 S.C.R.

A & Ors. AIR 1964 SC 993; Brij lndar 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.
B
      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
C 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; Madan/a/ v. Shyamla/ AIR 2002 SC 100;
D Davinder Pal Sehgal & Anr. v. Mis. Parlap Steel Rolling Mills
  (P) Ud. & 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
E 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
F 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
G 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]

H
           PARIMAL v. V~ENA@ BHARTI                      653

      2.1. In view of the provisions of Section 114 A1




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. B
The provisions of Section 101 of the Evidence Act
provide that the burden of proof of ttie facts rests on the
party who substantially asserts it and not on the party
who denies it. In fact, burden of ptoof means that a party
has to prove an allegation before he is: entitled. to a c
judgment in his favour. Section 103 provid~s 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 0
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 E
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 F
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 G
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 H
   654      SUPREME COURT REPORTS               [2011] 2 S.C.R.


A 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) (664-8-
B C; G-H; 665-A-B; G-H; 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
C (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 sec 663 - relied on.

        2.2. The appellate court has to decide the appeal
D preferred under Section 104 CPC following the procedure
  prescribed under Order XLlll, 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
E 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
F record reasons for its decision on the said points. Tne
  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 Basse/ios Catholicos & Anr. v. Most Rev.
G 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;
H
             PARIMAL v. VEENA @ BHARTI                   655

  Shiv Kumar Sharma v. Santosh Kumari (2007) 8 SCC 600;        A
  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
                                                                 8
    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 C
    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
   /uch 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 D
    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 peda!ltic. However, in case the matter does
    not fall within the four corners of Order IX, Rule 13 CPC, E
    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 F
    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 G
    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 H
    656      SUPREME COURT REPORTS             [2011] 2 S.C.R.

A 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]

        8. V. Nagesh & Anr. v. H. V. Sreenivassa Murthy, JT
8
    (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
C 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
D 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]
E                        Case Law Reference:
          AIR 1962 SC 361       Relied on           Para 9
          AIR 1968 SC 222 Relied on                 Para 9
F         AIR 1992 SC 1540      Relied on           Para 9
          (201 O) 5 sec 459)    Relied on           Para 9
          AIR 1964 SC 993       Relied on           Para 10
          AIR 1917 P.C. 156     Relied on           Para 10
G
          AIR 1964 SC 1336      Relied on           Para 10
          AIR 1970 SC 1953      Relied on           Para 10
          AIR 2000 SC 2306      Relied on           Para 11
H
          PARIMAL v. VEEN~@ BHARTI                   657


   AIR 2002 SC 100         Relied on            Para 11      A

   AIR 2002 SC 451         Relied on            Para 11
   AIR 2002 SC 1201        Relied on            Para 11
   c2005) 1o sec 121       Relied on          . Para 11      B
   (2005) 13 sec 95        Relied on            Para 11
    AIR 2008 SC 2054)       Relied on           Para 11
    AIR 2010 SC 3817        Relied on           Para 13
                                                             c
    JT 2010 (12) SC 287     Relied on           Para 13
    AIR 1989 SC 1433        Relied on           Para 14
    c2008) 1 sec 663)       Relied on           Para 18
    AIR 1954 SC 526         Relied on           Para 21      D

    AIR 1963 SC 146         Relied on           Para 21
    AIR 2001 SC 965         Relied on           Para 21
    AIR 2001 SC 2171        Relied on           Para 21      E
    c2006) 3 sec 224        Relied on           Para 21          -<...



    c2001) 8 sec 600        Relied on           Para 21
    AIR 2007 SC 2380)       Relied on           Para .21
                                                             F
    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   G
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.
                                                             H
    658       SUPREME COURT REPORTS                [2011] 2 S.C.R..


A       Geeta Dhingra, Chander Shekhar Ashri for the
    Respondent.

          The Judgment of the Court was delivered by

          DR. B.S. CHAUHAN, J. 1. Leave granted.
B
         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 FAQ No.63 of 2002, by which the High Court
    has allowed the application under Order IX Rule 13 of the Code
c   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:

D       (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 bP.tween 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
E 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
F 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.
G      (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
H of refusal, as she declined to receive the AD notice. Under the
            PARIMAL v. VEENA @ BHARTI                       659
               [DR. B.S. CHAUHAN, J.]
 Court's orders, summons were affixed at the house of the           A
 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, First Floor, Geeta Colony, Delhi. This was_ 8
 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           C
 Addi. 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,     D
 on 16.10.1991, the appellant got married and has two sons
 aged 17 and 18 years respectively froni 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      E
   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   F
   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 application under Order IX, Rule 13 CPC
   was also accompanied by an application unde~ Section 5 of        G
   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    H
    660      SUPREME COURT REPORTS                  [2011] 2 S.C.R.


A 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.
8
    Hence, this appeal.

    RIVAL SUBMISSIONS:

        4. Shri M.C. Dhingra, Ld. counsel appearing for the
c 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
0 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 Delhi
  which has a very wide circulation and further service of the said
  newspaper on the respondent/wife by registered post. The
E 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
F no~ 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
G 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
H respondent/wife to establish that the allegations of fraud or
             PARIMAL v. VEENA@ BHARTI                         661
                [DR. B.S. CHAUHAN, J.]
co}lusion were false. The conduct of the appellant even               A
subsequent to the date of decree of divorce, i.e. not disclosing
this fact to the respondenUwife during the proceedings under
Section 125 Cr.P.C., disentitles him from any relief before this
court of ,equity. No interference is required in the matter and the
appeal is liable to be dismissed.                                     B

     6. We have considered the rival submissions made by
learned counsel for the parties and perused the record.
  '
      7. Order IX, R.13 CPC:
                                                                      c
      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 D
      decree was passed for an order to set it aside; and if he
      satisfies 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 E
      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                              F
      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 plaintiffs G
      claim.

                                 xx
      (Emphasis added)
                                                                      H
    662      SUPREME COURT REPORTS                   [2011] 2 S.C.R.


A       8. It is evident from the above that 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
B 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
C 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 "sufficienr
D   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
E   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
F   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: Ram/al & Ors. v. Rewa
    Coalfields Ltd., AIR 1962 SC 361; Sarpanch, Lonand
G   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)
H   5 sec 459)
            PARIMAL v. VEENA @''BHARTI                     663
               [DR. B.S. CHAUHAN, J.]
      10. In Arjun Singh v. Mahindra Kumar & Ors., AIR 1964 A
 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 B
 "sufficient cause". (See also: Brij lndar Singh v. Lala Kanshi
 Ram & Ors., AIR 1917 P.C. 156; Manindra Land and Building
 Corporation Ltd. v. Bhutnath Banerjee & Ot:S., AIR 1964 SC
 1336; and Mata Din v. A. Narayanan, AIR 1970 SC 1953).

         11. While deciding whether there is a sufficient cause or C
   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 ~D
 . of the judgment impugned before it. (Vide: State of Bihar & Ors.
   v. Kameshwar Prasad Singh & Anr., AIR 2000 SC 2306;
' Madan/al v. Sh yam/al, AIR 2002 SC 100; Davinder Pat
    Sehgal & Anr. v. Mis. 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; E
   Kausha/ya Devi v. Prem Chand & Anr. (2005) 10 SCC 127;
    Srei International Finance Ltd., v. Fair growth Financial
    SeNices Ltd. & Anr., (2005) 13 SCC 95; and Reena Sadh v.
   Anjana Enterprises, AIR 2008 SC 2054).
                                                                    F
         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 which the defendant G
    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 H
    application.
    664       SUPREME COURT REPORTS                [2011) 2 S.C.R.

A   PRESUMPTION OF SERVICE BY REGISTERED POST &
    BURDEN OF PROOF:

       13. This Court after considering large number of its earlier
  judgments in Greater Moha/i Area Development Authority &
  Ors. v. Manju Jain & Ors., AIR 2010 SC 3817, held that in view
8
  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
C character. A similar view has beeJl reiterated by this Court in
    Dr. Sunil Kumar Sambhudaya( Gupta & Ors. v. State of
    Maharashtra, JT 2010 (12) SC 287.

      14. In Gujarat Electricity Board & Anr. v. Atmaram
D Sungomal Poshani, AIR 1989 SC 1433, this Court held as
  under:

          "There is presumption of service of a letter sent under
          registered cover, if the same is returned back with a postal
          endorsement that the addressee refused to accept the
E
          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
F         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. n

                                                 (Emphasis added)
G
       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
H allegation before he is entitled to a judgment In his favour.
              PARIMAL v. VEENA @ BHARTI                        665     I


                 [DR. B.S. CHAUHAN, J.]
 Section 103 provides that burden of proof as to any particular        A
 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        B
 of the facts in issue.

  PRESENT CONTROVERSY:

        16. The case at hand is required to be considered in the
  light of the aforesaid settled legal propositions. The trial Court   C
  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 D
       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 E
       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 fn any~
       manner.                                                      F      .
       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."                                              G

        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      H
    666       SUPREME COURT REPORTS                  (2011) 2 S:C.R.


A the trial Court. The trial Court has dealt with only the aforesaid
  two issues and nothing else. The High Court has not dealt with
  these issues in correct perspective. The High Court has
  recorded the following findings:

B         "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
c         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,
D         "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
E         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 givefl by her
F         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
G 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
H where the party had been residing last. (Vide Rabindra Singh
             PARIMAL v. VEENA @ BHARTI                        667
                [DR. B.S. CHAUHAN, J.]
 v. Financial Commissioner, Cooperation, Punjab & Ors.,               A
 (2oos) 7 sec 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
                                                                   8
 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 C
 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 XUll, Rule 2 CPC, which provides that for that D
   purpose, procedure prescribed under Order XU shall apply, so
   far as may be, to appeals 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 XU, Rule 31 CPC had to E
·' be applied in this case ..

       21. Order XU, 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   F
  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 Basse/ios Catholicos & Anr. v.           G
  Most Rev. Mar Poulose Athanasius & Ors., AIR 1954 SC 526;
  Thakur Sukhpal Singh v. Thakur ~alyan 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.,              H,
     668    SUPREME COURT REPORTS                  [2011) 2 S.C.R. .

.A   (2006) 3 SCC 224; Shiv Kumar Sharma v. Santosh Kumari,
     (2007) 8 SCC 600; and Gannmani Anasuya & Ors. v.
     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
8 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
C 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).

o       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
E 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
F 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
G 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 iJ'lto consideration the conduct of the appellant
  subsequent to passing of the ex-parte decree.
H
              PARIMAL v. VEENA@ BHARTI                         669
                 [DR. B.S. CHAUHAN, J.]
      More so, the High Court did not consider the grounds on          A
 which the trial Court had dismissed the application under Order
 IX, Rule 13 CPC filed by the respondenUwife. The appeal has
 been decided in a casual manner.

      25. In view of the above, appeal succeeds and is allowed.
                                                                       8
 The judgment and order dated 17.7.2007 passed by the High
 Court of Delhi in FAQ No. 63 of 2002 is set aside and the
 judgment and order of the trial Court dated 11.12.2001 is
 restored.

       Before parting with the case, it may be pertinent to mention    C
  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,         o
  Ld. counsel for the appellant to settle the issue. However, the
  demand by the respondenUwife 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        E
  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.

 D.G.                                            Appeal allowed.       F