Himachal Pradesh High Court
________________________________________________ vs Sanjeev Kumar Sharma on 18 April, 2024
Bench: Tarlok Singh Chauhan, Sushil Kukreja
IN THE HIGH COURT OF HIMACHAL PRADESH AT
SHIMLA
FAO (FC) No. 42 of 2021
.
Date of decision:18.04.2024
________________________________________________
Suman Sharma
.....Appellant.
Versus
Sanjeev Kumar Sharma
......Respondent.
________________________________________________
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice Sushil Kukreja, Judge.
1
Whether approved for reporting? Yes.
________________________________________________
For the appellant: Mr. Suneet Goel, Advocate.
For the respondent: Mr. Vijender Katoch, Advocate.
Sushil Kukreja, Judge. (Oral)
The appellant, who was the respondent before the learned Principal Judge, Family Court, Hamirpur, H.P. (hereinafter referred to as the "learned Court below") has maintained the instant appeal under Section 19 of the Family Court Act, against the order dated 28.07.2021, passed by the learned Court below, in HMA Petition No. 264 of 2017 RBT 320/2019, with a prayer to set-aside the same by allowing the instant petition.
2. The brief facts of the case are that the 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 19/04/2024 20:34:51 :::CIS 2respondent herein, who was the petitioner before the learned Court below (hereinafter referred to as "the petitioner") filed a .
petition under Section 9 of the Hindu Marriage Act, 1955 (for short "the Act") seeking restitution of the conjugal rights. As per the petitioner, he and the respondent (appellant herein) solemnized marriage on 16.07.2009, according to Hindu Rites and customs and out of their wedlock two children, i.e., a boy and a girl, were born. During the pregnancy of the respondent, she shifted to her parental home and the petitioner regularly not only visited her but also provided every possible assistance to her. The respondent, even after the delivery, did not come to her matrimonial house, despite the repeated efforts of the petitioner to bring her back. The petitioner further averred that he moved an application to Pardhan, Gram Panchayat, Jhaniara, but ultimately the respondent refused to accompany him and as the respondent did not permit him to meet his children, he filed a petition seeking restitution of conjugal rights.
3. The respondent, despite her service by way of publication in daily newspaper 'Amar Ujala', did not appear to contest the case and she was proceeded against as ex parte.
::: Downloaded on - 19/04/2024 20:34:51 :::CIS 34. The learned Court below framed the following issues:
.
"1. Whether the petitioner is entitled to the restitution of conjugal rights? OPP
2. Relief."
After deciding issue No. 1 in favour of the petitioner, the petition was allowed ex parte.
5. Feeling aggrieved, the respondent (appellant herein) filed the instant appeal under Section 19 of the Family Court Act, against the impugned judgment with a prayer for setting-aside the same by allowing the instant petition.
6. The learned counsel for the appellant contended that the service effected upon her was not proper and she was never served properly, as such, the impugned order dated 28.07.2021 as well as the subsequent proceedings arising out of the same are void ab initio and the same deserves to be quashed and set-aside. Conversely, the learned counsel for the respondent contended that the learned Court below has rightly passed the orders dated 26.03.2021 and 28.07.2021 after properly appreciating the facts and law.
::: Downloaded on - 19/04/2024 20:34:51 :::CIS 47. We have heard the learned Counsel for the appellant, learned counsel for the respondent and carefully .
examined the entire record.
8. The question which arises for consideration before this Court is as to whether the respondent was served before the learned Trial Court properly in accordance with law or not. The perusal of the record reveals that on 23.01.2020 the case file was received by the Family Court from the Court of learned JMIC, Court No. 2, Hamirpur, H.P., and thereafter notices were ordered to be issued to the parties returnable for 19.02.2020 on which date the counsel for the petitioner appeared, however, the respondent could not be served for want of correct address. Thereafter, the case was listed on 05.06.2020 and due to lockdown declared by the Government of India, the matter was adjourned for 17.07.2020 as per Notification No. HHC/RG/C-19D/2020-10 dated 16.04.2020 and on 17.07.2020 as per Notification No. HHC/RG/C-19/2020-26 dated 10.07.2020, the matter was again adjourned for 24.08.2020. On 24.08.2020 notice was ordered to be issued to the respondent for 25.09.2020, on which date the respondent could not be served for want of correct address and the learned Court below ordered that ::: Downloaded on - 19/04/2024 20:34:51 :::CIS 5 correct address be filed and fresh notice be issued to the respondent returnable for 07.11.2020. However, on .
07.11.2020 the respondent again remained unserved for want of correct address and fresh notice was ordered to be issued to the respondent for 15.12.2020 subject to filing of correct address. However, during the interregnum period, an application Under Order 5, Rule 20 CPC was filed by the petitioner for effecting the service upon the respondent by way of publication on the ground that she was avoiding the service of summons with a view to delay the proceedings.
On 12.11.2020, on the aforesaid application, the learned Court below has ordered the respondent to be served through publication in daily newspaper 'Amar Ujala'. The relevant portion of the above order is reproduced as under:
"Heard. A perusal of the record shows that notices are being issued to the respondent since October 2017 but they are being returned unserved with the report that the respondent is not residing at the address furnished and is studying outside. The notice issued for 25.03.2020 was served upon the respondent through her elder brother who claimed that he is residing with the respondent in the same house. However, the Govt. of India declared a lock down and the case could not be taken up on the date fixed. Subsequently a report has been made that the respondent is not residing with her parents and her whereabouts are not known.::: Downloaded on - 19/04/2024 20:34:51 :::CIS 6
A perusal of the reports clearly shows that the service of the summons cannot be effected on the address given in the petition. Hence the present application is .
allowed and the respondent is ordered to be summoned by way of publication in the daily newspaper "Amar Ujala" on deposit of expenses for the date fixed."
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. ... ... ... ... ... ...
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 ::: Downloaded on - 19/04/2024 20:34:51 :::CIS 7 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 sub-
rule (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 r 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; &
2. That for any other reasons, the summons cannot be served in the ordinary way."::: Downloaded on - 19/04/2024 20:34:51 :::CIS 8
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 ::: Downloaded on - 19/04/2024 20:34:51 :::CIS 9 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 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 ::: Downloaded on - 19/04/2024 20:34:51 :::CIS 10 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 pre- requisites 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 r 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 ::: Downloaded on - 19/04/2024 20:34:51 :::CIS 11 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 r 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 ::: Downloaded on - 19/04/2024 20:34:51 :::CIS 12 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.
14. Judged in the light of the aforesaid discussion, it can safely be concluded that the procedure adopted by the learned Court below with regard to the service of the respondent by way of publication was not in accordance with law. Therefore, on this ground alone, the impugned order dated 28.07.2021, passed by the learned Court below, deserves to be set-aside. Hence the same is quashed and set-aside. Resultantly, the instant appeal is allowed the case is ordered to be remanded back to the learned Court below with the direction to restore the same to its original number and thereafter to decide it in accordance with law, after giving a reasonable opportunity of being heard to both the parties.
The parties, through their learned counsel, are directed to appear before the learned Court below on 8th May, 2024.
::: Downloaded on - 19/04/2024 20:34:51 :::CIS 1315. In view of what has been discussed hereinabove, the appeal is disposed of. Pending application(s), if any, .
shall also stand(s) disposed of.
( Tarlok Singh Chauhan ) Judge ( Sushil Kukreja ) Judge 18th April, 2024 (virender) ::: Downloaded on - 19/04/2024 20:34:51 :::CIS