___________________________________________________________________________

BEFORE THE HONBLE SUPREME COURT

DELHI
___________________________________________________________________________
UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA

___________________________________________________________________________
CIVIL APPEAL NO.- ___/2016

___________________________________________________________________________

IN THE MATTER OF

RAVI SHANKAR KONDPAL...............................APPELLANT

V.

DEEPALIKA NANDEL.................................................................................RESPONDENT

Submitted By:-
Aishwarya Shubhangi
Semester- IV Section-A
Roll-359

1|Page
 TABLE OF CONTENTS

INDEX OF ABBREVIATIONS ----------------------------------------------------------------------- 3

INDEX OF AUTHORITIES ---------------------------------------------------------------------------- 4

List of Statutes------------------------------------------------------------------------------------------ 4

List of Cases-------------------------------------------------------------------------------------------- 4

Books Referred----------------------------------------------------------------------------------------- 5

STATEMENT OF JURISDICTION ------------------------------------------------------------------- 6

STATEMENT OF FACTS ------------------------------------------------------------------------------ 7

STATEMENT OF ISSUES------------------------------------------------------------------------------ 8

SUMMARY OF ARGUMENTS ----------------------------------------------------------------------- 9

ARGUMENTS ADVANCED---------------------------------------------------------------------10-14

PRAYER -------------------------------------------------------------------------------------------------15

2|Page
 INDEX OF ABBREVIATIONS
Honble ................................................................................................................... Honorable

& ....................................................................................................................................... And

Anr. ............................................................................................................................. Another

Vs. ................................................................................................................................. Versus

AIR..............................................................................................................All India Reporter

SCC ....................................................................................................... Supreme Court Cases

SC..................................................................................................................... Supreme Court

GOI ........................................................................................................Government Of India

Corp ...................................................................................................................... Corporation

Art ................................................................................................................................. Article

Ld ................................................................................................................................ Learned

ADJ ..................................................................................................Additional District Judge

CPC .......................................................................................... Code of Civil Procedure,1908

3|Page
 INDEX OF AUTHORITIES
STATUTE:-

Code of Civil Procedure, 1908

Limitation Act, 1963

TABLE OF CASES:-

1. Renuka Das v. Maya Ganguly [(2009) INSC 1381] ...................................................... 8

2. B.V. Nagesh and Anr. v. H.V. Sreenivassa Murthy [JT (2010) 10 SC 551] .................. 8
3. Oriental Aroma Chemical Industries Limited v. Gujarat Industria Development
Corporation and Anr. [(2010) 5 SCC 459].................................................................... 9
4. Arjun Singh v. Mohinder Kumar and others [AIR 1964 SC 993] ................................. 9
5. State of Bihar and Ors. v. Kameshwar Prasad Singh and Anr. [AIR 2000 SC 2306] .. 9
6. Madanlal v. Shyamlal [AIR 2002 SC 100] ................................................................... 9
7. Davinder Pal Sehgal and Anr. v. Partap Steel Rolling Mills (P) Ltd. and Ors. [AIR
2002 SC 451] ................................................................................................................. 9
8. Ram Nath Sao alias Ram Nath Sao and Ors.v. Gobardhan Sao and Ors. [AIR 2002
SC 1201] ...................................................................................................................... 9
9. Kaushalya Devi v. Prem Chand and Anr. [(2005) 10 SCC 127] ................................. 9
10. Srei International Finance Ltd., v. Fair growth Financial Services Ltd. and
Anr. [(2005) 13 SCC 95] ................................................................................................ 9
11. Reena Sadh v. Anjana Enterprises [AIR 2008 SC 2054)] ............................................ .9
12. Begum Para v Luiza Matilda Fernandes [(1984) 2 SCC 595] .................................... 10
13. P. Bhskaran v Ayyakannu Chettiar [AIR 2009 Mad 114: 2009 (1) Mad LW 968] ..... 10
14. Sunil Poddar v Union of India [AIR 2008 SC 1006]................................................... 10
15. Balkishan v Tarachand [2005 (3) Civil Court Cases 278 (P&H)] ............................. 10
16. Parimal v Veena [AIR 2011 SC 1150 : (2011) 3 SCC 545] ....................................... 11
17. Sk. Mohammad Ismail v. Sk. Anwar Ali [AIR 1991 Cal 391] .................................... 11
18. Sanghmitra v. Director of Higher Education [(2003) 1 RCR 175 (Ori)] .................... 11
19. Rikhabdas v. Chandrao [AIR 1971 All. 234] ............................................................ 11
20. State of Jammu & Kashmir v Ghoolam Rasool Rather [AIR 1989 SC 2125] ............. 11

4|Page
 BOOKS REFERRED:-

1. TAKWANI, C.K , CIVIL PROCEDURE CODE, 1908

2. THAKAR, C. K, CIVIL PROCEDURE CODE, 1908
3. SAHA, A.N, THE CODE OF CIVIL PROCEDURE, 1908, VOL. 1, SEVENTH EDN.

5|Page
 STATEMENT OF JURISDICTION

The Appellants have approached the Honble Supreme Court under Article 1361of the
Constitution of India, 1950.

1
Special leave to appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to
appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by
any court or tribunal in the territory of India

(2) Nothing in clause (1) shall apply to any judgment, determination, and sentence or order passed or made by
any court or tribunal constituted by or under any law relating to the Armed Forces

6|Page
 STATEMENT OF FACTS

Ravi Shankar Kondpal got married to Deepika Nandel on 09.12.1989 in Ranchi.

Their relationship did not remain cordial and the Husband filed for divorce on
27.04.1991.
Summons were sent to the wife on several occasions but she repeatedly refused to
accept them.
Thereafter summons were affixed at the house of the wife, but she chose not to appear.
She was also served through public notice on 06.11.1991 published in newspaper
Prabhat Khabar but again she chose not to appear.
Thereafter an ex-parte decree was passed in the favour of the Husband and the marriage
between the parties was dissolved.
Three years after the passing of the decree of divorce, on 16.10.1994, the appellant got
married and has two sons aged 17 and 18 years respectively from the said marriage.
The Respondent thereafter, after the expiry of 4 years of the passing of the ex-parte
decree of divorce dated 28.11.1991, moved an application dated 17.12.1996 for setting
aside the same basically on the grounds that ex-parte decree had been obtained by fraud.
The trial court dismissed her application vide order dated 11.12.2004. Being aggrieved,
wife preferred appeal before the Jharkhand High Court which has been allowed vide
judgement and order impugned herein.
Hence, the petitioner has filed an appeal in the Supreme Court.

7|Page
 STATEMENT OF ISSUES

WHETHER THE HIGH COURT WAS CORECT IN REVERSING THE JUDGMENT

GIVEN BY THE LOWER COURT?

WHETHER THERE WAS A SUFFICIENT CAUSE IN SETTING ASIDE THE

DECREE PASSED BY THE LOWER COURT?
WHETHER THE SUMMONS WERE DULY ISSUED?
WHETHER THE APPLICATION FILED BY THE RESPONDENT WAS
SUPPOSED TO BE REJECTED?

8|Page
 SUMMARY OF ARGUMENTS

WHETHER THE HIGH COURT WAS CORRECT IN SETTING ASIDE THE EX

PARTE DECREE GIVEN BY THE TRIAL COURT?

It is most humbly submitted before this Honble court that the order IX R 13 CPC the provisions
are read as under setting aside decree ex-parte against the defendant. The summons had been
rightfully served on the part of the appellant and all the measures for properly serving of notice
have been taken into account. The respondent fails to prove that there is a sufficient cause in
setting aside the decree against her. Also the application filed by the respondent for the
condonation of delay under order 9 rule 13 and Section 5 of the Limitation Act were not backed
up with requisite sufficient cause.

9|Page
 ARGUMENTS ADVANCED

1. THE HIGH COURT WAS INCORRECT IN SETTING ASIDE THE EX-PARTE

DECREE PASSED AGAINST THE RESPONDENT.

1.1 It is most humbly and respectfully submitted before this Honble court that the High Court
was not correct in reversing the decision given by the Trial Court. The service of summons
totally complied with the statutory provisions of the Civil Procedure Code, since the respondent
refused to accept the summons. Subsequently a registered post was also sent which was
refused.
1.2 The summons were served by publication in the daily newspaper 'Prabhat Khabar'
published from Ranchi which has a very wide circulation. The High Court committed a grave
error by 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 three years of the ex-parte decree the Appellant
got married and now has two major sons from the second wife. Therefore, the appeal deserves
to be allowed and the judgment impugned is liable to be set aside.
1.3 The Supreme Court in a recent case held that it is not open for the High Court to interfere
with the decision of the appellate court when no arbitrariness or perversity was found in the
findings of the same.2
In a case3 it was observed that 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 Code
of Civil Procedure and such judgment and order would be liable to be set.
More so, the High Court did not consider the grounds on which the trial Court had dismissed
the application under Order IX, Rule 13 Code of Civil Procedure filed by the Respondent/wife.
The High Court should have taken into consideration that the Appellant now is married again
and has two major children. The marriage of the appellant took place after the first marriage
was dissolved on the basis of that ex parte decree which was passed by the Ld. ADJ.

2
Renuka Das v. Maya Ganguly [(2009) INSC 1381]
3
B.V. Nagesh and Anr. v. H.V. Sreenivassa Murthy [JT (2010) 10 SC 551]

10 | P a g e
1.1 THERE WAS NO SUFFICIENT CAUSE IN SETTING ASIDE THE EX-PARTE
DECREE OF THE TRIAL COURT

1.1.1 It is most humbly and respectfully submitted before the Honble Court that the defendant
fails to establish a sufficient cause in order to set aside the judgement given by the lower court.
A bare reading of Order IX, R.13 CPC envisages that:-
In any case in which a decree is passed ex-parte against a defendant, he may apply to the Court
by which the decree was passed for an order to set it aside; and if he satisfies the Court that
the summons was not duly served, or that he was prevented by any sufficient cause from
appearing when the suit was called on for hearing, the Court shall make an order setting aside
the decree as against him upon such terms as to costs, payment into Court or otherwise as it
thinks fit, and shall appoint a day for proceeding with the suit;
Provided further that no Court shall set aside a decree passed ex-parte merely on the ground
that there has been an irregularity in the service of summons, if it is satisfied that the defendant
had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's
claim.
It is evident from the above that 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.
1.1.2 The legislative intent behind this proviso makes it mandatory in nature. The court cannot
allow or entertain the application in disregard with the terms and conditions that have been
incorporated in the same.
1.1.3"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
11 | P a g e
sufficient ground to enable the Court concerned to exercise discretion for the reason that
whenever the court exercises discretion, it has to be exercised judiciously.4
In a case5, the Supreme 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 "sufficient cause".
1.1.4 In a landmark case, the 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 "sufficient cause".5
1.1.5 While deciding whether there is a sufficient cause 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 it6.

1.2 THE SUMMONS WERE DULY ISSUED

1.2.1 Order V of the Civil Procedure Code deals with the Issuance of Summons. In the present
case the court of the Ld. ADJ during the course of the trial fulfilled all the criteria for delivery
of summons to the respondents. When the respondents were not to be found than the course of
substituted service was also done on behalf of the court officers.
It is a fundamental rule of the law of procedure that a party must have a fair and reasonable
opportunity to represent his case. And for that purpose he must have a notice of the legal
proceedings initiated against him. The service of summons on the defendant is therefore a
necessary condition precedent to a fair trial. If the summons is not served to the defendant or it
does not give him sufficient time to represent his case effectively no decree can be passed
against him.7

4
Oriental Aroma Chemical Industries Limited v. Gujarat Industria Development Corporation and Anr. [(2010)
5 SCC 459]
5
Arjun Singh v. Mohinder Kumar and others [AIR 1964 SC 993]
6
State of Bihar and Ors. v. Kameshwar Prasad Singh and Anr. [AIR 2000 SC 2306]
Madanlal v. Shyamlal [AIR 2002 SC 100] Davinder Pal Sehgal and Anr. v. Partap Steel Rolling Mills (P) Ltd.
and Ors. [AIR 2002 SC 451] Ram Nath Sao alias Ram Nath Sao and Ors.v. Gobardhan Sao and Ors. [AIR
2002 SC 1201] Kaushalya Devi v. Prem Chand and Anr. [(2005) 10 SCC 127] Srei International Finance
Ltd., v. Fair growth Financial Services Ltd. and Anr. [(2005) 13 SCC 95] Reena Sadh v. Anjana
Enterprises [AIR 2008 SC 2054)].
7
Begym Para v Luiza Matilda Fernandes [(1984) 2 SCC 595]

12 | P a g e
1.2.3 In the instant case the husband had applied for divorce on 27.04.1991. Summons were
issued to the Respondent on the following dates:
04.05.1991 : through registered AD
28.06.1991 : through process server (The Respondent refused to accept)
07.08.1991 : through process server (The Respondent refused to accept)
The court then ordered issuance of fresh notices. One was issued vide ordinary process and the
other vide Registered AD cover for 08.09.1991. Registered AD was returned to the court with
report of refusal.
Under courts orders, summons were affixed at the house of the wife, but she chose not to
appear. As per Order V Rule 20 an advertisement was published in the Prabhat Khabar, a
reputed daily newspaper on 06.11.1991 through a public notice. The court had served the
summons duly as the respondent was constantly evading the summons sent. From the facts it
is evident that the court was satisfied that the summons could not have been effected in the
ordinary manner.8 It was also discussed by the Supreme Court that it is not open to a person
sought to be served summons take the plea that he does not read that newspaper.9 In a case the
Supreme Court held that the summons are deemed to be served if they are served through any
substituted service mechanism either Munadi or publication in Newspaper.10

1.3 THAT THE APPLICATION UNDER ORDER IX RULE 13 AND SECTION 5 OF

THE LIMITATION ACT, 1963 IS BOUND TO BE REJECTED.

1.3.1 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.11
1.3.2 Section 5 of the Limitation Act, 1963 states that Any appeal or any application, other than
an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908

8
P. Bhskaran v Ayyakannu Chettiar [AIR 2009 Mad 114: 2009 (1) Mad LW 968]
9
Sunil Poddar v Union of India [AIR 2008 SC 1006]
10
Balkishan v Tarachand [2005 (3) Civil Court Cases 278 (P&H)]
11
Parimal v Veena [AIR 2011 SC 1150 : (2011) 3 SCC 545]

13 | P a g e
(5 of 1908), may be admitted after the prescribed period, if the appellant or the applicant
satisfies the court that he had sufficient cause for not preferring the appeal or making the
application within such period. Explanation. The fact that the appellant or the applicant was
misled by any order, practice or judgment of the High Court in ascertaining or computing the
prescribed period may be sufficient cause within the meaning of this section
1.3.3 It has been observed in plethora of cases12 that as far as the suit is concerned, the rule is
absolute and unqualified. Any suit instituted after the prescribed period of limitation has to be
dismissed. The expression "sufficient cause" in section 5 of the Limitation Act should receive
a liberal construction so as to advance substantial justice. Rules of limitation are not meant to
destroy the rights of the parties. There has to be a reasonable ground.13
1.3.4 One of the most important points substantiated in the judgment by the court give above
is that there should be a sufficient cause while taking the plea of condonation of dely. In the
instant case the petitioner miserably fails to prove her grounds of inordinate delay. Hence the
High Court has erred in reversing the decree by the trial court and hence the appeal shall be
allowed.

12
Sk. Mohammad Ismail v. Sk. Anwar Ali [AIR 1991 Cal 391] Sanghmitra v. Director of Higher Education
[(2003) 1 RCR 175 (Ori)] Rikhabdas v. Chandrao [AIR 1971 All. 234]
13
State of Jammu & Kashmir v Ghoolam Rasool Rather AIR 1989 SC 2125

14 | P a g e
 PRAYER

In light of arguments advanced and authorities cited, the appellant humbly submits that the
Honble Supreme Court may be pleased to adjudge and declare that:

1. Allow the Appeal with costs.

2. Set aside the Order of the High Court and Restore the Order passed by the Ld. ADJ, Ranchi
on 28.11.1991

Any other order as it deems fit in the interest of equity, justice and good conscience

15 | P a g e