Substituted service under Order 5 Rule 20 CPC must be justified with sufficient grounds, and should only be ordered as a last resort after exhausting other service methods.

JUDGMENT :

(Tarlok Singh Chauhan, J.)

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 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 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.

(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 b