NDLI: Parimal Vs. Veena @ Bharti

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	Code of Civil Procedure 1908
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Act(s) Referred	Code of Civil Procedure, 1908 (5 of 1908)
Case Type	Appeal
Court	Supreme Court of India
Disposal Nature	Appeal Allowed
Headnote	Code of Civil Procedure, 1908: Order IX Rule 13, second proviso - Ex parte decree, when can be set aside - Held: 'An ex-parte decree can be set aside if the defendant satisfies the court that summons were not duly send 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 service of summons or in 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 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 favour of the husband - High Court set aside the ex parte decree without dealing with the issue of service. of summons. 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 amount for maintenance - Compromise/Settlement. Order XLIII, 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 be heard both on question of law and on facts - The first appellate court should not disturb and interfere with the valuable rights of the parties which stood crystallised by the trial court's judgement 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 XL/, Rule 31 and such judgement and order would be liable to be set aside - The manner in 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:s. 114, Illustration (f) - Presumption of service - Registered letter - Held: There is a presumption of service of registered letter - However, the presumption is rebuttable on a consideration of evidence of impeccable character - General Clauses 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, 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 away the illegality perpetuated on the basis of the judgement impugned before it - Code of Civil Procedure, 1908.Words and phrases: "Sufficient", "Sufficient Cause" - Meaning of.
Judge	Hon'ble Dr. Justice B.S. Chauhan
Neutral Citation	2011 INSC 110
Petitioner	Parimal
Respondent	Veena @ Bharti
SCR	[2011] 2 S.C.R. 648
Judgement Date	2011-02-08
Case Number	1467

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