TMI Blog2011 (2) TMI 1562X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 07, 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de 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 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 whenev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 showin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recorded by 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: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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