2011 Supreme(SC) 158

2011 (1) Supreme 731
SUPREME COURT OF INDIA
P. Sathasivam and Dr. B.S. Chauhan, JJ.
Parimal — Appellant
versus
Veena @ Bharti — Respondent
Civil Appeal No...1467... of 2011
Decided on : 8-2-2011

IMPORTANT POINTS
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.
2. 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.
3. 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.

Headnote:Code of Civil Procedure, 1908- Order IX Rule 13 -Dissolution of marriage between parties on passing of an ex-parte decree of divorce-Application filed by respondent wife for setting aside ex-parte decree of divorce-Dismissed by Trial Court-Appeal-Allowed by High Court-Appeal- So far as the High Court was concerned, it did not deal with 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 findings recorded by trial Court- High Court had not dealt with said issues in correct perspective- High Court held that presumption stood rebutted by a bald statement made by 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- 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 appellant and the postman- Not a single document had been summoned from the post office- No attempt had been made by respondent/wife to examine the postman- It was nobody’s case that “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, impugned order of High Court held liable to be set aside and judgment and order of trial Court restored- Appeal allowed. (Para 17 to 19)

        Code of Civil Procedure, 1908- Order IX Rule 13 -Scope and ambit- 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 (Para 12)

        Civil Procedure Code,1908-Order XLI, Rule 31 -The first appellate Court should not disturb and interfere with the valuable rights of the parties which stood crystallised by 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 order of 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 said statutory requirements, High Court was duty bound to set aside at least material findings on issues, inspite 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-High Court had 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- High Court failed to discharge the obligation placed on the first appellate Court as none of the relevant aspects had been dealt with in proper perspective- It was not permissible for High Court to take into consideration conduct of the appellant subsequent to passing of the ex-parte decree- More so, the High Court did not consider the grounds on which trial Court had dismissed the application under Order IX, Rule 13 CPC filed by the respondent/wife- The appeal had been decided in a casual manner-Impugned judgment and order passed by High Court set aside -Appeal allowed. (Paras 22 to 25)

       Facts of the Case :

        Marriage between parties was dissolved herein in the instant case by an ex-parte decree of divorce. Application was filed by respondent wife for setting aside ex-parte decree of divorce. Said application was Dismissed by Trial Court. Appeal thereagainst was Allowed by High Court.

        2. Present Appeal has been filed against said order of High Court.

       Findings of the Court :

        So far as the High Court was concerned, it did not deal with 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 findings recorded by trial Court. High Court had not dealt with said issues in correct perspective. High Court held that presumption stood rebutted by a bald statement made by 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. 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 appellant and the postman.. Not a single document had been summoned from the post office. No attempt had been made by respondent/wife to examine the postman. It was nobody’s case that “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, impugned order of High Court was held liable to be set aside and judgment and order of trial Court was restored. Appeal was allowed.