Himachal Pradesh High Court
Champa vs Rajender Kumar on 20 March, 2025
Bench: Tarlok Singh Chauhan, Sushil Kukreja
( 2025:HHC:7541 ) IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO (FC) No. 21 of 2024 Decided on: 20.03.2025 Champa .....Appellant Versus Rajender Kumar ....Respondent Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Sushil Kukreja, Judge.
Whether approved for reporting? No For the appellant: Mr. Virender Sharma, Advocate.
For the respondent: None.
____________________________________________________________________ Justice Tarlok Singh Chauhan Judge (oral) The manner in which the learned Presiding Officer, Family Court has conducted the ex parte proceedings in the petition filed before him leaves much to desire. The respondent herein filed a petition under Section 13(1)(ia) & (ib) of Hindu Marriage Act, 1955 for dissolution of marriage by way of decree of divorce.
2 The aforesaid petition after scrutiny and office report came up for consideration before the learned Principle Judge, Family Court, Bilaspur ( for short, "Family Court") on 14.03.2022 on which date, the following orders came to be passed:-
"Office report seen. It be registered. Let, notice be issued to the respondent for 27.05.2022."2
( 2025:HHC:7541 ) 3 Notices issued pursuant to the aforesaid order were received back unserved for want of correct address and accordingly, the Family Court on 27.05.2022 passed the following orders:-
"Process issued for the service of respondent received back unserved for want of correct address. Let PF/CA be filed within 07 days, thereafter a fresh notice be issued to respondent returnable for 19.07.2022."
4 However, notices issued pursuant to the aforesaid orders had not been received back when the case, as directed, came up before the Family Court on 19.07.2022.
5 Shockingly, without there even being an application for substituted service, the Family Court straightway directed the respondent (appellant herein) to be served by way of publication as is evident from the order, which reads as under:-
"At this stage, the learned counsel for the petitioner requested to effect the service of respondent by way of publication. Heard. I am satisfied that respondent could not be served for one or other reason. Hence, request is allowed. Let respondent be served by way of publication be carried out in Newspaper Hindi Daily Amar Ujala. Let publication charges be filed on or before 08-08-2022."
6 Thereafter, on deposit of the publication charges, publication was carried out in 'Amar Ujala' and on account of non- appearance of the appellant, she was proceeded ex parte on 22.10.2022.
3
( 2025:HHC:7541 ) 7 All these facts have been duly taken note of by the Family Court in its order dated 13.06.2024, which read as under:-
"This application is filed under Section 5 of the Limitation Act, 1963 for condonation of delay of 285 days in filing this appeal challenging the judgment dt. 01.12.2022 passed in Petition No. 23/03 of 2022 by the Principal Judge, Family Court, Bilaspur.
2. The applicant herein was respondent in the said petition. The respondent herein had filed the said petition against the applicant for dissolution of marriage under Section 13(1)(ia) & (ib) of the Hindu Marriage Act, 1955.
3. In the impugned judgment, it is stated that the applicant was duly served, but she had not put in appearance and was proceeded against ex parte. But the copies of the zimini orders filed by the applicant indicate that the notice was issued to the applicant on 14.03.2022 by the Family Court for 27.05.2022, but on 27.05.2022, the process issued for service of the applicant was received back unserved for want of correct address and a direction was issued to the respondent by the Family Court to furnish correct address of the applicant within 7 days. When the matter was again listed on 19.07.2022, on the request of the counsel for the respondent, permission to effect the service of summons on the applicant by way of publication was granted merely recording that the applicant could not be served for one or the other reason.
4. It is not in dispute that the applicant was residing with her father in Village Lahana but in the summons taken by the respondent in the petition, the name of father of the applicant was not mentioned, and therefore, summons could not be served on the applicant. This was mentioned on the summons dt. 17.03.2022.
5. The counsel for the respondent does not deny that he had not mentioned the name of father of the applicant in the petition 4 ( 2025:HHC:7541 ) nor had he furnished the same to the Court for the purpose of serving the summons on the applicant in the petition.
6. We are, therefore, satisfied that there was no proper service of summons on the applicant by the trial Court and that the trial Court had erred in setting the applicant exparte without the respondent furnishing the correct address of the applicant and by taking recourse of publication in the newspaper.
7. The applicant had stated that after coming to know of the decree of divorce on 28.07.2023 in the hearing of a case filed by her under Protection of Women from Domestic Violence Act, 2005, bearing Case No. 52 of 2018 before the Judicial Magistrate First Class (V), Shimla, she secured the information about the decree and then filed the appeal.
8. In the facts and circumstances of the case, we are satisfied that sufficient cause has been shown by the applicant for condonation of delay in filing the appeal. Accordingly, the application is allowed and the delay in filing the appeal is condoned.
FAO (FC) No. of 2024.
9. Appeal be registered.
Admit.
List for hearing in the month of March, 2025."
8 It is extremely painful to note that despite the law being very well-settled, the courts below are resorting to substituted service callously and very casually that too at the initial stage of proceedings itself without even recording any satisfaction as mandated by the law and without directing the petitioner to take steps for serving the respondent by ordinary procedure as laid down in order 5 Rules 12, 15 & 17 of the Civil Procedure Code (for short, "CPC"). 5
( 2025:HHC:7541 ) 9 Substituted service has to be resorted to as a last resort when the respondent cannot be served in the ordinary way and the court is satisfied that there is reason to believe that the respondent is keeping out of the way for the purpose of avoiding service, or that for any other reason(s), summons cannot be served in the ordinary way.
10 In the instant case, procedure of substituted service was resorted to automatically and that too mechanically. The course followed by the Family Court for initiating ex parte proceedings is absolutely 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 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. ... ... ... ... ... ...6
( 2025:HHC:7541 )
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. (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; & 7 ( 2025:HHC:7541 )
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 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 8 ( 2025:HHC:7541 ) 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 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 9 ( 2025:HHC:7541 ) 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., 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 10 ( 2025:HHC:7541 ) 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. 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, 11 ( 2025:HHC:7541 ) was recorded by the trial court before ordering substituted service by publication in newspaper."
11 In addition to the aforesaid judgment, the procedure adopted by learned Family Court is in complete defiance of the procedure and the judgment of the Hon'ble Supreme Court in Yallawwa (SMT) versus Shantavva (SMT), 1997 (11) SCC 159, more particularly para-5 thereof, which reads as under:-
"We have carefully considered the aforesaid rival contentions. In order to appreciate the main grievance of the appellant against the impugned order of the High Court, it is necessary to note at the outset that the respondent was seeking to get the order of the Trial Court dismissing her application under Order IX Rule 13 C.PC. quashed by the High Court. It is true that she moved a revision application for that purpose but the order of the Trial Court refusing to set aside the ex parte decree was clearly appealable under Order XLIII Rule 1(d) C.P.C. which provides that an appeal shall lie from the orders listed in the said provision and in clause (d) is mentioned an order under Rule 13 if Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree granting divorce under Section 13(1)(i-
b) whether ex parte or bipartite is a decree which is appealable under Section 28 of the Hindu Marriage Act, 1955. Consequently, the order of the Trial Court refusing to set aside such an ex parte decree and rejecting the application under Order IX Rule 13 C.P.C. could have been validly made the subject-matter of an appeal under order XLIII Rule 1(d). Therefore, the revision application filed by the respondent before the High Court should be treated in substance as one by way of miscellaneous appeal.
Once the High Court has appellate jurisdiction over the impugned 12 ( 2025:HHC:7541 ) order of the Learned Trail Judge, it is obvious that the High Court was fully competent to interfere with the order by re-appreciation the facts of the case. The learned Single Judge had doubt that respondent being an illiterate lady living in a different town could not have known through the newspaper that her husband head filed a divorce petition against her and, therefore, she had no knowledge about the divorce petition. Consequently, the ex parte decree could be treated as one passed against the party which was not served and which had no knowledge about the said proceedings. The learned counsel for the respondent was also justified in submitting that the Trail Court could not have almost automatically granted the application for substituted service without taking steps for serving the respondent by ordinary procedure as laid down by order V Rules 12, 15 and 17 C.P.C. It must be kept in view that substituted service has to be restored as the last resort when the defendant cannot be served in the ordinary was and 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. In the present case, it appears that almost automatically the procedure of substituted service was restored to. It is also clear from the record of the case that respondent being an illiterate lady would not have known about passing of the ex parte decree earlier otherwise she could have moved for setting aside the decree on any day prior to the day on which she filed this application. Sufficient cause was therefore, made out for condoning the delay in filing the application for setting aside the ex parte decree. The High Court, in our opinion, has rightly code to this conclusion which calls for no interference under Article 136 of the Constitution, when substantial justice had been done to the parties and opportunity has been given to the wife to content the 13 ( 2025:HHC:7541 ) divorce petition which had terminated against her without giving any hearing to her."
12 There is yet another gross illegality committed by the learned Family Court, whereby it did not care to see that the proclamation had been published in the daily newspaper "Amar Ujala"
in its Dharamshala edition, whereas the address of the appellant as given in the petition was that of Tehsil Arki, District Solan where this newspaper is not at all circulated as it is the "Amar Ujala" Shimla edition.
13 Even otherwise, there is nothing on record to indicate that learned Family Court has recorded its satisfaction that the newspaper where the publication was circulated in the area, there the appellant was residing or not.
14 The procedure adopted by the Family Court is not in tune with the judgment of Hon'ble Supreme Court in Great Punjab Agro Industries Ltd. versus Khushian and others, 2005 (13) SCC 503, wherein it was held that the publication has to be made in the newspaper circulating in the area where the defendant last resided. It was observed in para-3 as under:-
"3. This appeal, by special leave, is directed against the order dated 16-9- 2002 passed by the High Court of Punjab and Haryana at Chandigarh in Civil Revision No. 4446 of 2001. In view of the order that we propose to pass, it is not necessary to recite the entire facts leading to the filing of the present appeal.14
( 2025:HHC:7541 ) Suffice it to say that the suit was decreed ex parte by an order dated 16-4-1994. The application for setting aside the ex parte order has been rejected by the courts below. Hence, the present petition. The notice to the appellant is by way of substituted service. The substituted service was published in the Tribune and the Punjab Kesari which have circulation only in the State of Punjab. Admittedly, the appellant stays at Bombay. The newspapers in which the notice was published by way of substituted service, namely, the Tribune and the Punjab Kesari have no circulation in Bombay. Order 5 Rule 20(1-A) CPC enjoins that if the service of notice is by advertisement in the newspaper, it shall be in the daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided. In the instant case, the procedure prescribed under Order 5 Rule 20(1-A) with regard to substituted service has been violated. In the premises, it cannot be said that the summons upon the defendant were effectively served. In this view of the matter, the ex parte decree dated 16-4- 1994 is set aside. The trial court shall take up the suit to its file and proceed to dispose of it in accordance with law after proper notice to the defendant . The appeal is allowed. No costs."
15 As evident from the sequence of events, it is manifestly clear that no serious attempt was made by the learned Family court to effect service upon the appellant by ordinary course or by registered or by any other legal mode and what compounded the illegality further was that when the learned Family Court ordered service of the appellant by way of publication that too in absence of there being any application to this effect.
15
( 2025:HHC:7541 ) 16 Even the manner in which the Family Court has recorded its satisfaction for substituted service also leaves much to desire. 17 To sum up, a bare perusal of Order 5 Rule 20 CPC makes it amply clear that the mode of substituted service can only be resorted to when 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(s), notices/summons cannot be served in the ordinary way.
18 To put in other words, the personal service of summons/notice in ordinary way is a rule and the substituted service is an exception. Therefore, before passing any order for substituted service on the basis of material on record, the court must be satisfied that the conditions stipulated in order 5 Rule 20 CPC exist. 19 Accordingly, for the reasons stated hereinabove, the present appeal is allowed and the judgment and decree dated 01.12.2022 passed by learned Family Court is set-aside. 20 Consequently, the learned Family Court is directed to restore the petition to its original number and thereafter, issue notices to the parties for their appearance as none has put in appearance on behalf of the respondent before this court today. The appellant herein shall be afforded an opportunity to file reply and thereafter, the learned Family Court shall proceed with the matter in accordance 16 ( 2025:HHC:7541 ) with law. It needs to be reiterated that the issues and evidence in this case would be framed/recorded de novo.
21 However, before parting, it needs to be noticed that identical issues where ex parte proceedings have been ordered recklessly and in violation of the law have been repeatedly coming up before this court despite the law on the issue being well-settled. One such case came up before this court just about a week back as on 12.03.2025. Therefore, it is high time that the Judicial Officers of the State be sensitized and made aware of the nature of proceedings under Order 5 Rule 20 CPC and its implication. 22 It would be noticed that the proceedings in this case were instituted three years back as on 07.03.2022 and eventually have been set-aside by relegating the parties to the initial stage of trial. It requires no solemn wisdom or rocket science to understand that such reckless act(s) of the Family Court has caused inconvenience & irreparable loss to the exchequer of the parties, and thus has burdened the judiciary and wasted its precious time. Therefore, let a copy of this order be circulated to all the Judicial Officers of the State. 23 The Family Court shall fix a date for appearance of parties. 17
( 2025:HHC:7541 ) 24 The appeal stands disposed of in the aforesaid terms, so also the pending application(s), if any.
(Tarlok Singh Chauhan) Judge (Sushil Kukreja) 20.03.2025 Judge (pankaj/yogesh)