Himachal Pradesh High Court
Meena Kumari vs Narender Kumar on 12 March, 2025
Bench: Tarlok Singh Chauhan, Sushil Kukreja
1
( 2025:HHC:6388 )
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
FAO (FC) No. 42 of 2024
Decided on: 12.03.2025
Meena Kumari ........Appellant
Versus
Narender Kumar .....Respondent.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice Sushil Kukreja, Judge.
Whether approved for reporting?1 No
For the Appellant: Mr. G.R. Palsra, Advocate.
For the Respondent: Mr.Lovneesh Singh Thakur,
Advocate.
Tarlok Singh Chauhan, Judge (Oral)
The main grievance of the appellant is that she was not served in the proceedings that were conducted before the learned Court below.
2. We have gone through the record and find that the respondent herein while filing petition under Section 13 of the Hindu Marriage Act, 1955 (in short the 'Act') had given his own address for the service of the appellant.
3. Obviously, when the summons were issued, the same could not have been served. As a matter of fact, pursuant to the order dated 10.08.2023, notices were issued to the appellant on the address 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes 2 ( 2025:HHC:6388 ) of the respondent himself and the same were received back with the report that the appellant was not found at the given address.
4. It was pursuant to such report that the learned Court below then ordered the respondent herein to file correct address of the appellant herein alongwith RAD. But, the respondent instead of taking fresh steps cleverly chose to file an application for substituted service of the appellant herein and sought permission of the court to have the appellant served through publication in the 'Amar Ujala' newspaper for 21.11.2023, which permission was allowed.
5. The manner in which order has been passed by learned Court below leaves much to desire cannot be countenanced as the same has been passed mechanically, even without realizing that the address furnished by the respondent in the petition under Section 13 of the Act was not the one where the appellant in fact had been residing, but was his own address.
6. Therefore, in such circumstances obviously, learned Court below clearly erred in directing the service of the appellant by way of publication. The course followed by the learned Court below thereafter, by initiating ex parte proceedings are illegal and is clearly against the dictum of this court in FAO (FC) No. 42 of 2021 titled Suman Sharma versus Sanjeev Kumar Sharma, decided on 18.04.2024 wherein it was held as under:-
9. The perusal of the aforesaid order itself shows that the notice issued for 25.03.2020 was served upon the respondent through her elder brother, however, during the lockdown 3 ( 2025:HHC:6388 ) declared by the Government of India, the case could not be taken up on the date fixed and subsequently a report was made by the Process Serving Agency that the respondent was not residing with her parents and her whereabouts were not known.
However, instead of furnishing the correct address of the respondent, the petitioner had filed the application for her substituted service through publication. At this stage, it would be relevant to reproduce Order 5 Rule 20 CPC, which reads as under:
"ORDER V ISSUE AND SERVICE OF SUMMONS
1. ... ... ... ... ... ...
20. Substituted service.-(1) Where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court-house, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit. [(1A) Where the Court acting under subrule (1) orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain.] (2) Effect of substituted service.-Service substituted by order of the Court shall be as effectual as if it has been made on the defendant personally.4
( 2025:HHC:6388 ) (3) Where service substituted, time for appearance to be fixed.-Where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require."
10. The bare perusal of Rule 20 of Order 5 CPC shows that the powers under this Rule are to be exercised and substituted service of the summons is ordered when one of the following conditions arises:
"1. That the defendant is keeping himself away and is avoiding service of summons; &
2. That for any other reasons, the summons cannot be served in the ordinary way."
11. In Swami Pragya Nand vs. Ram Swaroop Kapoor and others 1993 (1) SLC 54, it has been held that the provisions or Order 5 Rule 20 CPC are not be read in isolation but in conjunction with other provisions of Order 5 which shows that the order regarding service of defendant by way of publication in the newspaper is to be pressed as a last resort when there is no possibility of effecting service on him by other modes as provided therein. It has further been held that before passing order of substituted service by publication in the newspaper, the Court must satisfy itself that there are reasons to believe that the defendant was keeping out of the way to evade service. If the order of substituted service is passed mechanically by the Court, there is likelihood of misuse of the process of the Court. It would be relevant to refer para-9 of the judgment which reads as under:-
"9. In the present case, the provisions of Order 5, C.P.C have not been adhered to at all under Rule 12 of Order 5 C.P.C. it is provided that where ever it is practicable, service shall be made on the defendant in person unless he has an agent empowered to accept service in which case service on such agent 5 ( 2025:HHC:6388 ) shall be sufficient. Further, under Rule 15 of Order 5 C.P.C.it is laid down that if the defendant is not found by the Process Server nor has he any authorized agent to accept service of summons, service may be effected on any adult male member of the family of the defendant who may be residing with him. Under Rule 17 of Order 5, C.P.C., if the serving officer, after using all due and reasonable diligence cannot find the defendant and there is no authorized agent or any male member of the house to accept service, the serving officer should affix a copy of the summons on the outer door or some other conspicuous part of the house in which defendant ordinarily resides or carries on business or personally works for gain and shall make a report relating thereto giving all the facts and circumstances. It is only then the modes of service provided under Rules 15 and 17 of Order 5, C.P.C. are complied with and the Court is satisfied and comes to the conclusion that there are reasons to believe that the defendant is keeping out of the way for the purpose of evading service or that for any other reasons, the summons cannot be served in ordinary way, the Court may order summons to be served by substituted service which is by affixing a copy on some conspicuous part of the house last resided by him or where he carried on business or personally worked for gain lastly. But this mode of substituted service is to be adopted as a last resort and the Court has been empowered to order service of the defendant in any other manner which has now been clarified in the amended Rule 20(1-A) that service may be ordered to be effected through publication in the newspaper. The provisions of 6 ( 2025:HHC:6388 ) Order 5 Rule 20, C.P.C. are not to be read in isolation but in conjunction with earlier provisions which shows that order regarding service of defendant by way of publication in the newspaper is to be passed as a last resort when there is no possibility of effecting service on him by other modes as provided therein. Before passing order of substituted service by publication in the newspaper, the Court must satisfy that there are reasons to believe that the defendant was keeping out of the way to evade service. If the order of substituted service is passed mechanically by the Court, there is likelihood of misuse of the process of the Court. So far the order of substituted service by publication in a newspaper is concerned, it should not be passed lightly without ascertaining whether the prerequisites of Order 5 Rule 20, C.P.C. are fulfilled as it is a matter of common knowledge that generally people do not read court notices in the newspapers. The anxiety of the Courts to expedite the proceedings in cases by hurrying up with the service of the defendant by resorting to extraordinary mode of substituted service, such as publication in the newspaper, may defeat the very purpose and result in gross injustice (See: Baljit Singh Bhatia v. Kulwant Singh and others, 1978 PLR 287; Kuldip Singh v. Sharan Singh, 1989 (1) PLR 536: Sant Kaur v. Khazan Singh, 1989 CCC 449, Smt. Ishro v. Sarmukh Singh, 1990 (1) PLR 324, Harbhej Singh v. Diwan Singh and others, 1990 CCC 258, and Bijender Singh v. Ranbir Singh and others, 1990 (1) PLR 375."
12. Further, it is also fruitful to refer to the decision of the Hon'ble Apex Court in the case of Neerja Realtors Pvt. Ltd., 7 ( 2025:HHC:6388 ) versus Janglu (Dead) Through Legal Representative, reported in (2018) 2 SCC 649, wherein it has been held that substituted service is an exception to the normal mode of service, therefore, the Court must apply its mind to the requirements of Order 5 Rule 20 and its order must indicate due consideration of the provisions contained in it. The relevant portion of the aforesaid judgment reads as under:
"14. Evidently as the report of the bailiff indicates, he was unable to find the defendant at the address which was mentioned in the summons. The report of the bailiff does not indicate that the summons were affixed on a conspicuous part of the house, at the address mentioned in the summons. There was a breach of the provisions of Order 5 Rule 17. When the application for substituted service was filed before the trial court under Order 5 Rule 20, a cryptic order was passed on 2-9-2011. Order 5 Rule 20 requires the court to be satisfied either that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service or that for any other reason, the summons cannot be served in the ordinary way. Substituted service is an exception to the normal mode of service. The Court must apply its mind to the requirements of Order 5 Rule 20 and its order must indicate due consideration of the provisions contained in it." ... ...
13. In the instant case, the perusal of the record reveals that no sincere attempt was made to effect service of the respondent by ordinary course or by sending summons by registered post. Mere service by publication in newspaper was not sufficient. The order dated 12.11.2020, passed by trial Court, is a cryptic order which did not record any satisfied reason that respondent was evading service of summons.
8( 2025:HHC:6388 ) Further the publication could be resorted to only after exhausting all the other modes of service, as enumerated under Order 5 CPC. The impugned order dated 28.07.2021, passed by the learned Court below, shows that the same has been passed mechanically. There was neither sufficient ground for ordering substituted service of respondent by publication in newspaper, nor necessary satisfaction for ordering substituted service, as required by Order 5 Rule 20 CPC, was recorded by the trial court before ordering substituted service by publication in newspaper."
7.` Accordingly, for the reasons stated above, the present appeal is allowed and the judgment and decree passed by learned Court below are set-aside. The Principal Judge, Family Court, Mandi, District Mandi, H.P. is directed to restore the petition to its original number. The parties shall appear before the learned Court below on 2 nd April, 2025 on which date, the appellant herein shall file her reply and thereafter, the Court shall proceed with the matter in accordance with law. It needs to be reiterated that issues and evidence in this case would be framed/ recorded de novo. Pending application(s) if any, stands disposed of.
(Tarlok Singh Chauhan) Judge (Sushil Kukreja) Judge 12th March, 2025.
(yogesh/pankaj)