PARIMAL versus VEENA @ BHARTI

Citation: [2011] 2 S.C.R. 648 · Decided: 08-02-2011 · Supreme Court of India · Bench: P. SATHASIVAM · Disposal: Appeal(s) allowed

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Judgment (excerpt)

A 
B 
[2011) 2 S.C.R. 648 
PAR I MAL 
v. 
VEENA @ BHARTI 
(Civil Appeal No. 1467 of 2011) 
FEBRUARY 8, 2011 
[P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.] 
Code of Civil Procedure, 1908: Order IX Rule 13, second 
proviso - Ex parte decree, when can be set aside - Held: 'An 
C ex-parte decree can be set aside if the defendant satisfies the 
court that summons were not duly seNed 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 seNice of summons or in 
D 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 
E 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 seNice. of summons 
.t .. 
F - 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 
G amount for maintenance - Compromise/Settlement. 
H 
Order XL/I/, 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 
648 
PARIMAL v. VEENA @ BHARTI 
649 
be heard both on question of law and on facts - The first 
A 
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 
B 
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 judgment 
and order would be liable to be set aside - The manner in c 
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 presumptiop of service 
. of registered letter - However, the presumption is rebuttable 
D 
on a consideration of evidence of impeccable character -
E 
General Clavses 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, 
F 
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 
G 
away the illegality perpetuated on the basis of the judgment 
impugned before it - Code of Civil Procedure, 1908. 
Words and phrases: "Sufficient", "Sufficient Cause" -
Meaning of. 
H 
650 
SUPREME COURT REPORTS 
[2011] 2 S.C.R. 
A 
The appellant-husband filed a divorce petition 
against the respondent-wife. A notice of petition was sent 
to her by court which she allegedly refused to accept. The 
notice was sent again on 7.8.1989, which the respondent 
again refused to accept. The notice sent by registered AD 
e was also returned to the court with report of ·refusal. 
Under the court's order, summons were affixed at the 
house of the respondent, but she did not appear. She 
was also served through public notice published in a 
newspap'lr, which was also sent to her. Thereafter, on 
c 08.11.1989, the respondent was proceeded ex parte and 
ex parte judgment was passed in favour of the appellant 
and the marriage between the parties was dissolved. 
Two years after the passing of the decree of divorce, 
the appellan

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