Paragraph numbers below are the court’s original numbering, recovered from the source text.
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).
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. [2011) 2 S.C.R. 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 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 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. n (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 H allegation before he is entitled to a judgment In his favour. @ BHARTI [DR. B.S. CHAUHAN, J.] 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:
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 fn 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 (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: c "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 givefl 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 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 @ BHARTI [DR. B.S. CHAUHAN, J.] v. Financial Commissioner, Cooperation, Punjab & Ors., (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 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 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 ·' 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 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. 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., [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 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. @ BHARTI [DR. B.S. CHAUHAN, J.] 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 respondenUwife. 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 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 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 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.