2011 (2) TMI 1562 - SC - Indian Laws

SC Overturns HC Judgment, Reinstates Trial Court's Order Dismissing Application Under Order IX Rule 13 CPC

Parimal Versus Veena @ Bharti

The SC allowed the appeal, overturning the HC's judgment and reinstating the trial court's order dismissing the respondent's application under Order IX ... Validity of ex-parte decree of divorce - service of notice or not - sufficient cause - Presumption of service by registered post and burden of proof - ex-parte decree of divorce challenged (after 4 years of its passing) 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. HELD THAT:- 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 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 and burden of proof - HELD THAT:- This Court after considering large number of its earlier judgments in GREATER MOHALI AREA DEVELOPMENT AUTHORITY & ANR VERSUS MANJU JAIN [2010 (8) TMI 932 - SUPREME COURT], 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. In the present case, 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 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. 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. 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 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. The judgment and order passed by the High Court of Delhi is set aside and the judgment and order of the trial Court is restored - Appeal allowed. Issues Involved:1. Service of summons and substituted service.2. Allegations of fraud and collusion.3. Application under Order IX Rule 13 CPC.4. Burden of proof and presumption of service.5. High Court's consideration of subsequent conduct.6. Adequacy of High Court's judgment.Detailed Analysis:1. Service of Summons and Substituted Service:The appellant/husband filed for divorce, and the respondent/wife refused to accept the notice of the petition on multiple occasions. The court resorted to substituted service by publication in the newspaper 'National Herald'. The trial court found that the respondent was duly served, noting that the UPC receipt for the newspaper sent to her address was on record and unchallenged. The High Court, however, questioned the service process, noting discrepancies in the process server's identification of the respondent and the lack of detailed endorsements on the returned registered envelopes.2. Allegations of Fraud and Collusion:The respondent/wife alleged that the ex-parte decree was obtained by fraud and collusion with the postman to procure false reports of refusal. The trial court dismissed these allegations, finding no evidence to support them. The High Court did not directly address these allegations but implied that the presumption of service was rebutted by the respondent's statement and her brother's testimony that she was living elsewhere.3. Application under Order IX Rule 13 CPC:Order IX Rule 13 CPC allows setting aside an ex-parte decree if the summons were not duly served or if there was sufficient cause for non-appearance. The trial court found no sufficient cause for the respondent's non-appearance and dismissed her application. The High Court, however, allowed the application, focusing on the alleged irregularities in the service process and the appellant's conduct post-decree.4. Burden of Proof and Presumption of Service:The Supreme Court reiterated that there is a presumption of service for registered posts returned with a refusal endorsement, as per Section 114 of the Evidence Act and Section 27 of the General Clauses Act. This presumption is rebuttable, but the burden lies on the party challenging the service. The trial court found the respondent failed to rebut this presumption. The High Court, however, accepted the respondent's and her brother's statements as sufficient to rebut the presumption.5. High Court's Consideration of Subsequent Conduct:The High Court considered the appellant's failure to disclose the divorce decree during maintenance proceedings under Section 125 Cr.P.C. as relevant to the case. The Supreme Court found this consideration irrelevant for deciding the application under Order IX Rule 13 CPC, emphasizing that the focus should be on whether the summons were duly served and if there was sufficient cause for non-appearance.6. Adequacy of High Court's Judgment:The Supreme Court criticized the High Court for not addressing the trial court's findings on service of summons and substituted service. The High Court did not set aside these findings or provide a detailed analysis of the issues. The Supreme Court emphasized that the first appellate court must independently weigh the evidence and record reasons for its decisions. The High Court's judgment was found to be inadequate and casual.Conclusion:The Supreme Court allowed the appeal, setting aside the High Court's judgment and restoring the trial court's order dismissing the respondent's application under Order IX Rule 13 CPC. The Supreme Court also addressed the issue of maintenance, awarding a lump sum of Rs. 10 lakhs to the respondent, to be paid in two equal installments within six months.