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Table of Contents
Table of Cases2Synopsis3Chapter 1 - Issue of Summons4Summons to
Defendant4Exemption from Appearance6Essential Contents of
Summons7Chapter 2 - Service of Summons9Service by Courts9Service by
Plaintiff11Personal or Direct Service12Substituted Service15Chapter
3 - Summons in Special Cases20Service of Summons in Another
State20Service of Summons in Prison21Service of Foreign
Summons22Service of Summons on Public Officers24Service of summons
on Soldiers, Sailors or Airmen25Procedure after serving of
Summons25Service of Summons to Persons of High Ranking25Service of
summons on Corporation or Partnership
Firm26Conclusion27Bibliography28Books &
Statutes28Weblinks28
Table of Cases
Ami Chand v. Partapa8Babu Ram Bhatnagar v. Satish Kumar
Rawal6Bheru Lal v. Shanti Lal9Charanjit Singh Mann v. Neelam
Mann14Karnail Singh v. Dina Nath5Kuldip Rai v. Sharan
Singh19Laxmibai v. Keshrimal Jain17M. G. Dua v. Balli Mal Nawal
Kishore11M/s Punjab Rural Industrial Works v. Punjab Financial
Corporation13Madina Dangi Multi-purpose Co-op Society, Madina v.
Ral Mal8Mst. Bhabia Devi v. Permanand Pd. Yadav11, 17Puwada
Venkateswara v. Chindamana Venkata11Rabindra Singh v. Financial
Commissioner, Cooperation, Punjab19Ram August Tewari v. Bindeshwari
Tiwari19Renu Sharma v. Titan Industries Ltd14Salem Advocate Bar
Association (II) v. Union of India9, 12Salem Advocate Bar
Association, Tamil Nadu v. Union of India4Sardar Singh v. Krishan
Lal Bharti15Satish Construction Co. v. Allahabad Bank19Smt.
Rooprani v. Prem Singh17Sneh Gupta v. Devi Sarup6State of J&K
v. Haji Wali Mohammed18Subodh S. Salaskar v. Jayprakash M.
Shah9Sumitra Bai v. Shyam Lal Sen14Sunil Poddar v. Union Bank of
India19
SynopsisIntroductionThe concept of Summons is an important
subject matter of the CPC. When the plaintiff files a suit, the
defendant has to be informed that the suit, the defendant has to be
informed that the suit has been filed against him, and that he is
required to appear in the court to defend it. The intimation which
is sent to the defendant by the court is technically known as
Summons. Summons is a document issued from the office of a court of
justice, calling upon the person to whom it is directed to attend
before a judge or office of the court for a certain
purpose.[footnoteRef:2] [2: Earl Jowitt, The Dictionary of English
Law (1972), p. 1700.]
Research Questions1. According to which provisions of the Code
of Civil Procedure, 1908, summons is issued to defendants?2. How
summons are served to the parties directly and in special
circumstances?
Research MethodologyA descriptive and doctrinal research
methodology was used for this project. Concerned statute and books
of renowned authors were looked into for the compilation of the
present study. Several websites were looked into for understanding
the concept of present study. Moreover various articles and case
laws were referred inorder to clear the law point at the present
time. Referring to all the primary and secondary material mentioned
above, the present study has been compiled and presented to the
concerned.
Chapterisation SchemeChapter 1 Issue of SummonsChapter 2 Service
of SummonsChapter 3 Summons in Special Cases
Chapter 1 - Issue of SummonsA summons is a court order that
notifies a defendant that a lawsuit has been filed against him or
her and that the defendant must file an answer within a specified
number of days. The summons is the document that officially starts
a lawsuit. The importance of service of summons, in whatever way it
may be effected, is that the defendant may be informed of the
institution of the suit in due time before the date fixed for the
hearing and to extend him an opportunity to resist the suit where
the defendant is not served with summons, the mere fact that he had
no knowledge of the suit is immaterial. Issue of Summons is a
fundamental rule of procedure. A party must have a fair and
reasonable notice of the legal proceedings initiated against him,
so that he can defend himself.[footnoteRef:3] [3:
http://www.assignmentpoint.com/arts/law/the-code-of-civil-procedure-1908-lecture-05.html
as assessed on 19.10.2014 at 3:45 P.M.]
Summons to DefendantS. 27 of the Code of Civil Procedure, 1908,
reads as follows:- 27. Summons to defendants.- Where a suit has
been duly instituted, a summons may be issued to the defendant to
appear and answer the claim and may be served in manner
prescribed[on such day not beyond thirty days from date of the
institution of the suit].[footnoteRef:4] [4: Added by Act No. 46 of
1999, section 3 (w.e.f. 1-7-2002).]
The words on such date not beyond thirty days from the date of
the institution of the suit do not mean that the summons must be
served within thirty days of the date of the institution of the
suit. The words added by amendment, fix outer time frame, by
providing, that steps must be taken within thirty days from the
dare of the institution of the suit, to issue summons. In other
words, if the suit is instituted, for example, on 1st Jan, 2002
then the correct addresses of the defendants and the process fee
must be filed in the court within thirty days so that summons be
issued by the court not beyond thirty days from the date of the
institution of the suit.[footnoteRef:5] The object is to avoid long
delay in issue of summons for want of steps by the plaintiff. It is
quite evident that if all that is required to be done by a party,
has been performed within the period of thirty days, then no fault
can be attributed to the party.[footnoteRef:6] [5: Mulla, The Code
of Civil Procedure, 17th ed., LexisNexis Butterworths Publications,
Delhi, 2007 at p. 555.] [6: Salem Advocate Bar Association, Tamil
Nadu v. Union of India, AIR 2003 SC 189.]
Order 5 of the Code deals with summons to defendant. When a suit
has been duly filed by presentation of a plaint, the courts must
issue summons to the defendants calling upon him to appear and
answer the claim of the plaintiff by filing a written statement
within thirty days from the date of service of summons and such
summons issued by the court must be accompanied by the copy of the
plaint.[footnoteRef:7] Such procedure has been duly provided for in
rule 1 and 2 of order 5. They read as follows:- [7:
http://en.wikipedia.org/wiki/Summons#Judicial_summons as assessed
on 19.10.2014 at 2:00 P.M.]
Rule 1. Summons-(1) When a suit has been duly instituted,
summons may be issued to the defendant to appear and answer the
claim and to file the written statement of his defence, if any,
within thirty day from the date of service of summons on that
defendant:Provided that no such summons shall be issued when a
defendant has appeared at the presentation of plaint and admitted
the plaintiffs claim;Provided further that where the defendant
fails to file the written statement within the said period of
thirty day, he shall be allowed to file the same on such other days
as may be specified by the Court, for reasons to be recorded in
writing, but which shall not be later than ninety days from the
date of service of summons.(2) A defendant to whom a summons has
been issued under sub-rule (1) may appear (a) in person, or (b) by
a pleader duly instructed and able to answer all material questions
relating to the suit, or (c) by pleader accompanied by some person
able to answer all such questions.(3) Every such summons shall be
signed by the Judge or such officer as he appoints, and shall be
sealed with the seal of the court.Rule 2. Copy of plaint annexed to
summons -Every summons shall be accompanied by a copy of the
plaint.In Karnail Singh v. Dina Nath,[footnoteRef:8] it was said
that it is the requirement of law that summons must be accompanied
by the copy of the plaint and unless it is done, mere presentation
of summon without copy is no service. Hence, if the plaint was not
presented along with the summons, it cannot be said that there was
due service. Due Service means service of summons along with the
plaint. Word due has not been superfluously used by the legislature
but attachment of copy of complaint or concise statement thereof
along with summons is mandatory.[footnoteRef:9] [8: 1985(2) 88 PLR
477.] [9: Babu Ram Bhatnagar v. Satish Kumar Rawal, 1992(1) RRR 35
(P&H).]
In another case of Sneh Gupta v. Devi Sarup,[footnoteRef:10]
summons were served on the party after the date fixed in the suit
had expired. The Honble Supreme Court held that the court, in this
situation, had a legal obligation to serve another summons fixing
another date of hearing in terms of order 5 rule 2 of the CPC. [10:
2009(2) RCR(Civil) 129 SC]
Exemption from AppearanceA defendant to whom summons have been
issued may appear in various ways as provided in R. 1(2) of Or. 5.
Further R. 3 of the same states that the court may order the
defendant or plaintiff to appear in person. It reads as
follows:-Rule 3. Court may order defendant or plaintiff to appear
in person -(1) Where the court sees reason to require the personal
appearance of the defendant, the summons shall order him to appear
in person in court on the day therein specified.(2) Where the court
sees reason to require the personal appearance of the plaintiff on
the same day, it shall make an order for such appearance.But R. 4
provides for various limitations to the above said rules exempting
the defendants to appear in person. It reads as:- Rule 4. No party
to be ordered to appear in person unless resident within certain
limits -No party shall be ordered to appear in person unless he
resides,(a) within the local limits of the Courts ordinary original
jurisdiction, or(b) without such limits but at place less than
fifty or (where there is railway or steamer communication or other
established public conveyance for five-sixths of the distance
between the place where he resides and the place where the court is
situate) less than two hundred miles distance from the court
house.R. 4 states that no party shall be ordered to appear in
person, unless he resides:-a) within the local limits of the Courts
ordinary original jurisdiction, or b) outside such limits but at a
place less than 50 or (where there is railway or steamer
communication or other established public conveyance for
five-sixths of the distance between the place where he resides and
the place where the court is situate), less than 200 miles distance
from the court house.[footnoteRef:11] [11: Tandon M. P., The Code
of Civil Procedure, 1908, 26th ed., Allahabad Law Agency,
Faridabad, 2008 at p. 151.]
Further, S. 132 of the code exempts a woman, to appear in
person, if she is not appearing in public according to the customs
and manners of the country.[footnoteRef:12] [12: S. 132, The Code
of Civil Procedure, 1908.]
Furthermore, S. 133 states that no one shall be ordered to
appear in person if he falls in the category of persons exempted
from personal appearance in Court viz., (i) the President of India,
(ii) the Vice-President of India, (iii) the Speaker of the House of
the People, (iv) the Ministers of the Union, (v) the Judges of the
Supreme Court, (vi) the Governors of States and the Administrators
of Union territories, (vii) the Speakers of the State Legislative
Assemblies, (viii) the Chairman of the State Legislative Councils,
(ix) the Ministers of States, (x) the Judges of the High Courts,
and (xi) rulers of any former Indian States to whom section 87-B,
viz., in relation to a suit based upon a cause of action which
arose before commencement of the Constitution, i.e., 26th January,
1950.[footnoteRef:13] [13: S. 133, The Code of Civil Procedure,
1908.]
Essential Contents of SummonsEvery summons shall:-1. Intimate to
the defendant of the date of hearing and whether he is to appear in
person or by a pleader.2. Contain a direction whether the date is
fixed for settlement of issues only or final disposal of the
suit.3. Order the defendant to produce all documents in his
possession or power upon which he intends to rely in support of his
case.[footnoteRef:14] [14: Supra 10.]
R. 5-8 of Or. 5 deals with various essentials of the summons.
They read as follows:-Rule 5. Summons to be either to settle issues
or for final disposal -The court shall determine, at the time of
issuing the summons, whether it shall be for the settlement of
issues only, or for the final disposal of the suit; and the summons
shall contain a direction accordingly:Provided that, in every Suit
heard by a court of small causes, the summons shall be for the
final disposal of the suit.Rule 6. Fixing day for appearance of
defendant -The day under sub-rule (1) of rule 1 shall be fixed with
reference to the current business of the court; the place of
residence of the defendant and the time necessary for the service
of the summons; and the day shall be so fixed as to allow the
defendant sufficient time to enable him to appear and answer on
such day.Expression Sufficient Time had been defined in the case of
Madina Dangi Multi-purpose Co-op Society, Madina v. Ral
Mal,[footnoteRef:15] it was said that the term Sufficient Time
contemplates a reasonable time to enable the party to appear and
answer before the court on date so fixed in summons. But in Ami
Chand v. Partapa,[footnoteRef:16] it was held that mere short
notice does not mean the defendant need not appear. If he feels the
time is short to file written reply, he can only request the court
after appearance. [15: 2001(4) RCR(Civil) 322(P&H)] [16:
2003(1) RCR(Civil) 616(P&H)]
Rule 7. Summons to order defendant to produce documents relied
on by him -The summons to appear and answer shall order the
defendant to produce all documents or copies thereof specified in
rule 1A of Order VIII in his possession or power upon which he
intends to rely in support of his case.Rule 8. On issue of summons
for final disposal, defendant to be directed to produce his
witnesses -Where the summons is for the final disposal of the suit,
it shall also direct the defendant to produce, on the day fixed for
his appearance, all witnesses upon whose evidence he intends to
rely in support of his case.Accordingly, a summon in a small cause
court suit shall be for final disposal and shall direct the
defendant to produce his witnesses on the date fixed upon whose
evidence he intends to rely in support of his case.
Chapter 2 - Service of SummonsThe service of summons is of
primary importance as it is a fundamental rule of law of procedure
that a party must have a fair and reasonable notice of the legal
proceedings initiated against him so that he can defend
himself.[footnoteRef:17] [17: Takwani C. K., Civil Procedure, 7th
ed., Eastern Book Company, Lucknow, 2014 at p. 251.]
In Bheru Lal v. Shanti Lal,[footnoteRef:18] it was held that an
objection as to service of summons should be raised at the earliest
possible opportunity. If it is not taken at that stage, it is
deemed to have been waived. [18: AIR 1985 Raj. 53]
The problem of service of summons is one of the major causes of
delay in the progress of the suit. It is common knowledge that
defendants try to avoid service of summons. The Law commission
considered the problem and it was felt that certain amendments were
necessary in that direction and a defendant can be served by a
plaintiff or through modern means of communication. Accordingly,
amendments were made in the court.[footnoteRef:19] [19: Salem
Advocate Bar Association (II) v. Union of India, (2005)6 SCC
344.]
The Code prescribes few principal modes of serving a summons to
a defendant, as discussed below:-Service by CourtsA bare perusal of
Order V, Rule 9, CPC clearly shows that service through process of
court is mandatory. Summons to defendant residing within or outside
the jurisdiction of the court shall be served through court officer
or approved courier service or various other means such as
registered post, speed post, fax, acknowledgment due,
etc.[footnoteRef:20] Further, summons is presumed to be served if
it does not back within thirty days from the date of
issue.[footnoteRef:21] In this regard, R. 9 reads as follows:- [20:
Pandit U. M., Commentary on Civil Procedure Code, Unique Law
Publications, Ahmadabad, 2009 at p. 781.] [21: Subodh S. Salaskar
v. Jayprakash M. Shah, 2008(3) RCR(Civil) 905 SC.]
Rule 9. Delivery of summons by Court -(1) Where the defendant
resides within the jurisdiction of the Court in which the suit is
instituted, or has an agent resident within that jurisdiction who
is empowered to accept the service of the summons, the summons
shall, unless the Court otherwise directs, be delivered or sent
either to the proper officer to be served by him or one of his
subordinates or to such courier services as are approved by the
Court.(2) The proper officer may be an officer of a Court other
than that in which the suit is instituted, and where he is such an
officer, the summons may be sent to him in such manner as the Court
may direct.(3) The services of summons may be made by delivering or
transmitting a copy thereof by registered post acknowledgment due,
addressed to the defendant or his agent empowered to accept the
service or by speed post or by such courier services as are
approved by the High Court or by the Court referred to in sub-rule
(1) or by any other means of transmission of documents (including
fax message or electronic mail service) provided by the rules made
by the High Court:Provided that the service of summons under this
sub-rule shall be made at the expenses of the plaintiff.(4)
Notwithstanding anything contained in sub-rule (1), where a
defendant resides outside the jurisdiction of the court in which
the suit is instituted, and the Court directs that the service of
summons on that defendant may be made by such mode of service of
summons as is referred to in sub-rule (3) (except by registered
post acknowledgment due), the provisions of Rule 21 shall not
apply.(5) When an acknowledgment or any other receipt purporting to
be signed by the defendant or his agent is received by the Court or
postal article containing the summons is received back by the Court
with an endorsement purporting to have been made by a postal
employee or by any person authorised by the courier service to the
effect that the defendant or his agent had refused to take delivery
of the postal article containing the summons or had refused to
accept the summons by any other means specified in sub-rule (3)
when tendered or transmitted to him, the Court issuing the summons
shall declare that the summons had been duly served on the
defendant:Provided that where the summons was properly addressed,
pre-paid and duly sent by registered post acknowledgment due, the
declaration referred to in this sub-rule shall be made
notwithstanding the fact the acknowledgment having been lost or
mislaid, or for any other reason, has not been received by the
Court within thirty days from the date of issue of summons.(6) The
High Court or the District Judge, as the case may be, shall prepare
a panel of courier agencies for the purposes of sub-rule (1).R.
9(3) gives power to courts to serve the summons via registered post
but such power is limited to an extent only. In M. G. Dua v. Balli
Mal Nawal Kishore,[footnoteRef:22] it was held that summons can be
sent by registered post only in the first instance. If any other
mode of service is tried in the first instance and if it fails to
yield any fruitful result, it is not open to courts to endeavor to
effect service on the defendants by registered post. [22: AIR 1959
Punjab 467.]
R. 9 also states that where the defendant refuses to accept the
summons, he is deemed to have been served.[footnoteRef:23]
Similarly, where an acknowledgement or receipt purported to have
been signed by the defendant is received by the court that the
defendant has refused to take the delivery of the summons, the
court will proceed treating the defendant as
served.[footnoteRef:24] [23: Takwani C. K., Civil Procedure, 7th
ed., Eastern Book Company, Lucknow, 2014 at p. 255.] [24: Puwada
Venkateswara v. Chindamana Venkata, (1976)2 SCC 409.]
In the matter of Mst. Bhabia Devi v. Permanand Pd.
Yadav,[footnoteRef:25] the ex parte decree was held to be rightly
passed where the defendant refused to put her sign or thumb
impression on summons when they were handed to her and she also
refused to acknowledge the registered service. [25: AIR 1997 SC
1919.]
Service by PlaintiffThe court may also permit services of
summons by the plaintiff in addition to service of summons by the
court. R. 9A talks about the summons given to plaintiff for
service. It reads as follows:-Rule 9A. Summons given to the
plaintiff for service -(1) The Court may, in addition to the
service of summons under Rule 9, on the application of the
plaintiff for the issue of a summons for the appearance of the
defendant, permit such plaintiff to effect service of such summons
on such defendant and shall, in such a case, deliver the summons to
such plaintiff for service.(2) The service of such summons shall be
effected to or on behalf of such plaintiff by delivering or
tendering to the defendant personally a copy thereof signed by the
Judge or such officer of the Court as he may appoint in this behalf
and sealed with the seal of the Court or by such mode of service as
is referred to in sub-rule (3) of rule 9.(3) The provisions of
Rules 16 and 18 shall apply to a summons personally served under
this rule as if the person effecting service were a serving
officer.(4) If such summons, when tendered, is refused or if the
person served refuses to sign an acknowledgment of service or for
any reason such summons is not be served personally, the Court
shall, on the application of the party, re-issue such summons to be
served by the Court in the same manner as a summons to a
defendant.In Salem Advocate Bar Association (II) v. Union of
India,[footnoteRef:26] the court was of opinion that though there
can be no objection in giving an opportunity to the plaintiff to
serve summons on the defendant, there should be sufficient
safeguards to avoid false report of service of summons. High Court
should make appropriate rules or issue practice directions to
ensure that the provisions are properly implemented and there is no
abuse of process of law. [26: (2005)6 SCC 344.]
Personal or Direct ServiceThe actual delivery of the legal
documents is done by a non-interested process server, who is not a
party to the litigation. The process server must be an adult, and
they usually serve legal documents as a profession.[footnoteRef:27]
Rules 10-16 and 18 of Order V of the Code deals with personal or
direct service of summon upon the defendant. This is an ordinary
mode of service of summons. R. 10 and 11 are the basic rules which
need to be followed as a compulsory requirement in almost all types
of services mentioned in order V. They read as follows:- [27:
http://research.lawyers.com/process-serving.html as assessed on
19.10.2014 at 4:00 P.M.]
Rule 10. Mode of service -Service of the summons shall be made
by delivering or tendering a copy thereof signed by the Judge or
such officer as he appoints in this behalf, and sealed with the
seal of the court.Rule 11. Service on several defendants -Save as
otherwise prescribed, where there are more defendants than one,
service of the summons shall be made on each defendant.Further,
Rule 12 of Order V enjoins that wherever it was practicable,
service should be made on the person concerned unless the person
has an agent empowered to accept service. Thus the requirement
under law was that attempt should be made to serve notice
personally on the party unless there was an agent empowered to
accept service.[footnoteRef:28] [28: Pandit U. M., Commentary on
Civil Procedure Code, Unique Law Publications, Ahmadabad, 2009 at
p. 785.]
Rule 12. Service to be on defendant in person when practicable,
or on his agent -Wherever 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.In the matter of M/s Punjab Rural Industrial Works v.
Punjab Financial Corporation,[footnoteRef:29] it was said that
Rules 10 and 12 of order 5 lay down the mode and method of service.
As per these rules, the service has to be effected on the person
concerned when practicable and that too by tendering the copy of
summons to him. [29: 1985(2) 88 PLR 640]
Rules 13 and 14 relate to service of summons on an agent in
certain circumstances. They are as follows:-Rule 13. Service on
agent by whom defendant carries on business -(1) In a Suit relating
to any business or work against a person who does not reside within
the local limits of the jurisdiction of the court from which the
summons is issued, service on any manager or agent, who, at the
time of service, personally carries on such business or work for
such person within such limits, shall be deemed good service.(2)
For the purpose of this rule the master of a ship shall be deemed
to be the agent of the owner or charterer.It states that in a suit
relating to any business or work, against a person not residing
within the jurisdiction of the court issuing the summons, service
on any manager or agent carrying on such business or work is
sufficient. Sub-rule (2) further clarifies that the master of a
ship is the agent of the owner.Rule 14. Service on agent in charge
in suits for immovable property -Where in a suit to obtain relief
respecting, or compensation for wrong to, immovable property,
service cannot be made on the defendant in person, and the
defendant has no agent empowered to accept the service, it may be
made on any agent of the defendant in charge of the property.It
states that in a suit for immovable property service may be made on
an agent in charge of the property if the service cannot be made on
the defendant personally and the defendant has no agent empowered
to accept the service.Order V, Rule 15 of the Code empowers the
process server to serve summons on any adult male member of the
family, if the party was found to be absent when service of summons
is sought to be effected on him at his residence and there is no
likelihood of the party being found at the residence within
reasonable time and he has no agent empowered to accept service. It
reads as:-Rule 15. Where service may be on an adult member of
defendants family -Where in any suit the defendant is absent from
his residence at the time when the service of summons is sought to
be effected on him at his residence and there is no likelihood of
his being found at the residence within a reasonable time and he
has no agent empowered to accept service of the summons on his
behalf, service may be made on any adult member of the family,
whether male or female, who is residing with him.Explanation: A
Servant is not a member of his family within the meaning of this
rule.However, while effecting service under the above stated rule,
process server has to record a specific finding that the party was
absent from his residence and there was no likelihood of the party
being found at the residence within reasonable time. The service
can be effected only on an adult member of the family of the party.
Process server has therefore, to take care and caution on noting
down the name and details of the adult member of the
family.[footnoteRef:30] [30: Renu Sharma v. Titan Industries Ltd.,
AIR 2007 Del 151 at 153.]
In the matter of Charanjit Singh Mann v. Neelam
Mann,[footnoteRef:31] the appellant was not found at his residence
and his father informed the process-server that the appellant had
gone abroad. The appellant's father did not disclose as to how soon
the appellant would come back from abroad. In these peculiar facts
and circumstances, the Honble Court said that it can be safely
inferred that the summons could not have been served upon the
appellant personally within a reasonable time, therefore, service
of notice upon the appellant's father, who admittedly received the
summons, squarely falls within the safeguards of Rule 15 of Order
V, CPC and has to be treated as a valid service upon the appellant.
[31: AIR 2006 P&H 201 at 208.]
Further, in Sumitra Bai v. Shyam Lal Sen,[footnoteRef:32]
summons were to be served on adult son of the party. Son was
residing elsewhere and not with the father. It was held that it is
no service as Order 5, Rule 15 provides that the summons may be
served on any adult member of the family who is residing with the
addressee. [32: (2010)5 RCR(Civil) 129(MP) (Jabalpur Bench)]
All types of personal services mentioned above are also called
direct service because service is made by delivering a copy thereof
to the defendant personally, or to an agent or other person on his
behalf and the signature of the person to whom the copy is so
delivered is obtained to an acknowledgement of service endorsed on
the original summons.[footnoteRef:33] Such statement is supported
by R. 16 of order V which reads as follows:- [33: Pandit U. M.,
Commentary on Civil Procedure Code, Unique Law Publications,
Ahmadabad, 2009.]
Rule 16. Person served to sign acknowledgement -Where the
serving officer delivers or tenders a copy of the summons to the
defendant personally, or to an agent or other person on his behalf,
he shall require the signature of the person to whom the copy is so
delivered or tendered to an acknowledgement of service endorsed on
the original summons.When the acknowledgement signed by the
defendant or his agent is received by the court, the court issuing
the summons has to declare that due service has been effected on
the defendant.[footnoteRef:34] [34: Sardar Singh v. Krishan Lal
Bharti, 2004(4) RCR(Civil) 716.]
Thereafter, the serving officer must make an endorsement on the
original summons stating the time and manner of service thereof and
the name and address of the person, if any, identifying the person
served and witnessing the delivery or tender of summons as required
by R. 18.Rule 18. Endorsement of time and manner of service -The
serving officer shall, in all cases in which the summons has been
served under rule 16, endorse or annex, or cause to be endorsed or
annexed, on or to the original summons, a return stating the time
when and the manner in which the summons was served, and the name
and address of the person (if any) identifying the person served
and witnessing the delivery or tender of the summons.Substituted
ServiceSubstituted Service means the service of summons by a mode
which is substituted for the ordinary mode of service of summons.
In many jurisdictions, service of process may also be accomplished
through substituted service if the party to be served is
unavailable. There two modes of substituted service such as:1.
Where the defendant refuses to accept the summons or cannot be
found, and2. Where the court is satisfied that the party is
avoiding the summons or the summons cannot be served in the
ordinary manner.[footnoteRef:35] [35: Takwani C. K., Civil
Procedure, 7th ed., Eastern Book Company, Lucknow, 2014 at p.
253.]
Order V, Rule 17 of the Code deals with the first case while
Rule 20 with the second. Both the cases are discussed below:-Rule
17. Procedure when defendant refuses to accept service, or cannot
be found -Where the defendant or his agent or such other person as
aforesaid refuses to sign the acknowledgment, or where the serving
officer, after using all due and reasonable diligence, cannot find
the defendant, who is absent from his residence at the time when
service is sought to be effected on him at his residence and there
is no likelihood of his being found at the residence within a
reasonable time and there is no agent empowered to accept service
of the summons on his behalf, nor any other person on whom service
can be made, the serving officer shall affix a copy of the summons
on the outer door or some other conspicuous part of the house in
which the defendant ordinarily resides or carries on business or
personally works for gain, and shall then return the original to
the court from which it was issued, with a report endorsed thereon
or annexed thereto stating that he has so affixed the copy, the
circumstances under which he did so, and the name and address of
the person (if any) by whom the house was identified and whose
presence the copy was affixed.It states that where the defendant or
his agent or in their absence an adult member of the family refuses
to sign the acknowledgement or where the serving officer cannot
find the defendant who is absent from his residence at the time
when service is sought to be effected on him at his residence and
there is no likelihood of his being found at the residence within a
reasonable time and there is no such other person on whom service
can be effected, the serving officer shall affix a copy of the
summons on the outer door or some other conspicuous part of the
house in which the defendant ordinarily resides or carries on
business, and shall then return the original to the court from
which it was issued, with a report endorsed thereon, stating that
he has so affixed the copy, the circumstances under which he did
so, and the name and address of the person (if any) by whom the
house was identified and in whose presence the copy was affixed. If
the Court is satisfied, it declares the service to have been duly
effected.A simple delivery of the copy of the summons personally to
the defendant is not complete, the process-server, must, in order
to make the service complete, also obtain the signature of the
defendant to its acknowledgement and where he refuses to sign, it
is incumbent to effect service under rule 17.In Smt. Rooprani v.
Prem Singh,[footnoteRef:36] it was held that in a civil suit where
summons were issued to defendants to appear which had been refused
by the party will not amount to be a valid service unless and until
a copy of the summons is affixed on the outer door or some other
conspicuous part of the house in which the defendant resides or
carries on business. [36: 2008(4) RCR(Civil) 8(MP)(Jabalpur
Bench)]
In the matter of Mst. Bhabia Devi v. Permanand Pd.
Yadav,[footnoteRef:37] it was held that where the defendant refused
to put her sign of thumb impression on summon when they were handed
to her and also refused to acknowledge the registered service, it
is indicative of refusal to accept notice and in such circumstances
passing of ex parte decree is justified. [37: AIR 1997 SC
1919.]
Further, Rule 19 is in addition to the mode of service
incorporated in Rule 17. This rule keeps the check on the
genuineness of the serving of summons as per rule 17. It reads
as:-Rule 19. Examination of serving officer -Where a summons is
returned under rule 17, the court shall, if the return under that
rule has not been verified by the affidavit of the serving officer,
and may, if it has been so verified, examine the serving officer on
oath, or cause him to be so examined by another Court, touching his
proceedings, and may make such further enquiry in the matter as it
thinks fit, and shall either declare that the summons has been duly
served or order such service as it thinks fit.It states that if the
court is satisfied, either on the affidavit of serving officer or
on his examination on oath, that the summons has been duly served,
it may either declare that the summons has been duly served or may
further enquire in the matter as it thinks fit. Thus, in the mode
of service of summons as provided by rule 17, the service is
effected without the orders of the court by affixing the copy of
the summons on the house of the defendant and therefore the
declaration by the court about the due service of summons is
essential.[footnoteRef:38] [38: Laxmibai v. Keshrimal Jain, AIR
1995 MP 178.]
In the matter of State of J&K v. Haji Wali
Mohammed,[footnoteRef:39] it was held that if the provisions of
Rule 19 have not been complied with, the service of summons cannot
be said to be in accordance with law. [39: AIR 1972 SC 2538 at
2543]
Further, Rule 20 deals with the second case i.e. where the court
is satisfied that the party is avoiding the summons or the summons
cannot be served in the ordinary manner. In this situation, Code
prescribes various other alternatives as provided for in rule 20.
It reads as:-Rule 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 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 business or personally worked for gain.(2) Effect of
substituted serviceService substituted by order of the court shall
be as effectual as if it had been made on the defendant
personally.(3) Where service substituted, time for appearance to be
fixedWhere 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.Rule 20(1), provides that where the Court is satisfied
that there was 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 could not 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 on the
house where the defendant was known to have last resided. Sub-rule
1(A) provides that where the Court acting under sub-rule (1) orders
service by an advertisement in a newspaper, it has to be a daily
newspaper circulated in the locality in which the defendant is last
known to have actually and voluntarily resided.[footnoteRef:40]
Such service is an effective service , even if the defendant is not
the subscriber of the newspaper or is not reading
it.[footnoteRef:41] [40: Pandit U. M., Commentary on Civil
Procedure Code, Unique Law Publications, Ahmadabad, 2009 at p.
794.] [41: Sunil Poddar v. Union Bank of India, (2008)2 SCC
326.]
Under Rule 20, the service of summons is effected by the order
of the court only after the court is satisfied that the defendants
avoids the service of summons or it cannot be served in the
ordinary way.[footnoteRef:42] Such satisfaction must be recorded by
court in writing.[footnoteRef:43] Substituted service is as
effective as personal service. The court must fix a time for the
appearance of the defendant and give him a reasonable time to
appear before the court. [42: Ram August Tewari v. Bindeshwari
Tiwari, AIR 1972 Pat 142.] [43: Kuldip Rai v. Sharan Singh, AIR
1989 P&H 319.]
In Rabindra Singh v. Financial Commissioner, Cooperation,
Punjab,[footnoteRef:44] it was held that substituted mode of
service cannot be used where defendant is residing in America.
Substituted mode of service is permissible in law but such
substituted mode of service in the change, be sufficient. A
purported service by beat of drums of publication of notice in a
local newspaper which has no circulation in USA cannot be said to
be an effective service. [44: 2008(3) RCR(Civil) 929 SC.]
In the matter of Satish Construction Co. v. Allahabad
Bank,[footnoteRef:45] the Honble Court held that the trial Court
committed breach of the mandatory provisions of Order V, Rule 20 in
directing publication of the notice. Firstly, because it did not
record its satisfaction and secondly because it did not order
affixture of the copy of summons in conspicuous place in the
Court-house. It was trite law that service would be deemed to be
valid if the order preceding the service was in accordance with
law. It was not only the service which is required to be proved but
the party relying upon the substituted service has to prove that
the Order directing substituted service was also in accordance with
law. The trial Court, in the opinion of the Court, was not
justified in rejecting the application for setting aside ex parte
decree. [45: AIR 1999 MP 21.]
Chapter 3 - Summons in Special CasesThere are many type cases
where summons cannot be served ordinarily or via any other
procedure as described above. For such type of cases S. 28-29 and
Order V, Rules 21-30 of the Code can be dealt with. To study them
clearly, they have been categorized into various categories as
discussed below.Service of Summons in Another StateS. 28 and Rules
21-23, Order V of the code particularly deals with the service
summons to the defendants residing in another state. S. 28 reads
as:-28. Service of summons where defendant resides in another State
- (1) A summons may be sent for service in another State to such
Court and in such manner as may be prescribed by rules in force in
that State.(2) The Court to which such summons is sent shall, upon
receipt thereof, proceed as if it had been issued by such Court and
shall then return the summons to the Court of issue together with
the record (if any) of its proceedings with regard thereto.[(3)
Where the language of the summons sent for service in another State
is different from the language of the record referred to in
sub-section (2), a translation of the record, (a) in Hindi, where
the language of the Court issuing the summons is Hindi, or (b) in
Hindi or English where the language of such record is other than
Hindi or English, shall also be sent together with the record sent
under that sub-section].[footnoteRef:46] [46: Ins. by Act No. 104
of 1976, sec. 12 (w.e.f. 1-5-1977).]
It states that where the defendant resides within the
jurisdiction of another court or in another state, the summons may
be sent to the court where he resides. Such court will serve
summons on the defendant.[footnoteRef:47] Further, Rule 21 of Order
V describes various modes of serving the summons. It reads as:-
[47: Mulla, The Code of Civil Procedure, 17th ed., LexisNexis
Butterworths Publications, Delhi, 2007 at p. 556.]
Rule 21. Service of summons where defendant resides within
jurisdiction of another court -A summons may be sent by the court
by which it is issued, whether within or without the State, either
by one of its officers or by post or by such courier service as may
be approved by the High Court, by fax message or by electronic mail
service or by any other means as may be provided by the rules made
by the High Court to any court (not being the High Court) having
jurisdiction in the place where the defendant resides.It is a
mandatory rule that service outside jurisdiction can only be done
by an officer of the court with an order from a court having
jurisdiction over the place where he resides. Rule 21 lays down
that a summons may be sent by the court by which it is issued,
whether within or without the State, either by one of its officers
or by post to any court (not being the High Court) having
jurisdiction in the place where the defendant resides.Moving to
another case, Rule 22 deals with service within the Presidency
Towns. It states that where the summons is to be served within the
Presidency Towns of Bombay, Madras and Calcutta, it may be sent to
the court of Small Causes within whose jurisdiction it is to be
served. It reads as:-Rule 22. Service, within presidency towns, of
summons issued by courts outside -Where a summons issued by any
court established beyond the limits of the towns of Calcutta,
Madras and Bombay is to be served within any such limits, it shall
be sent to the court of small causes within whose jurisdiction it
is to be served.Further, Rule 23 casts a duty upon the court
receiving the summons to be served to proceed as if the summons had
been originally issued by the said court and then will return the
summons with the record of proceedings (if any) to the court who
issued them. It reads as:-Rule 23. Duty of court to which summons
is sent -The court to which a summons is sent under rule 21 or rule
22 shall, upon receipt thereof, proceed as if it had been issued by
such court and shall then return the summons to the court of issue,
together with the record (if any) of its proceedings with regard
thereto.Service of Summons in PrisonRule 24 of Order V of the Code
states that where the defendant is confined in prison, the summons
shall be delivered or sent by post or otherwise to the officer in
charge of the prison for service on the defendant.[footnoteRef:48]
The court shall take judicial notice of the signature of the jailor
on its return. It reads as:- [48:
http://www.indianlawcases.com/The.Code.of.Civil.Procedure.1908-742
as assessed on 20.10.2014 at 11:00 A.M.]
Rule 24. Service on defendant in prison -Where the defendant is
confined in a prison, the summons shall be delivered or sent or by
post or by such courier service as may be approved by the High
Court, by fax message or by electronic mail service or by any other
means as may be provided by the rules made by the High Court) to
the officer in charge of the prison for service on the
defendant.Service of Foreign SummonsServices of foreign summons may
be effected by sending them to the courts in the territories in
which the provisions of this code apply and served as if they were
summonses issued by such courts.[footnoteRef:49] S. 29 of the code
enlightens this principle and reads as follows:- [49: Mulla, The
Code of Civil Procedure, 17th ed., LexisNexis Butterworths
Publications, Delhi, 2007 at p. 556.]
29. Service of foreign summonses.- [Summons and other processes
issued by-(a) any Civil or Revenue Court established in any part of
India to which the provisions of this Code do not extent, or(b) any
Civil or Revenue Court established or continued by the authority of
the Central Government outside India, or(c) any other Civil or
Revenue Court outside India to which the Central Government has, by
notification in the Official Gazette, declared the provisions of
this section to apply,may be sent to the Courts in the territories
to which this Code extends, and served as if they were summonses
issued by such Courts.][footnoteRef:50] [50: Subs. by Act 2 of
1951, sec. 6, for section 29 (w.e.f. 1-4-1951).]
Further, Rule 25 of Order V of the code states that where the
defendant resides out of India and has no agent in India empowered
to accept service, the summons shall be addressed to the defendant
at the place where he is residing and sent to him by post, if there
is postal communication between such place and the place where the
court is situate. Provision to rule 25 also provides for procedure
relating to serving of summons on defendant residing in Bangladesh
or Pakistan. It reads as:-Rule 25. Service on defendant resides out
of India and has no agent -Where the defendant reside out of India
and has not agent in India empowered to accept service, the summons
shall be addressed to the defendant at the place where he is
residing and sent to him or by post or by such courier service as
may be approved by the High Court, by fax message or by electronic
mail service or by any other means as may be provided by the rules
made by the High Court, if there is postal communication between
such place and the place where the court is situate:Provided that
where any such defendant resides in Bangladesh or Pakistan, the
summons, together with a copy thereof, may be sent for service on
the defendant, to any court in that country (not being the High
Court) having jurisdiction in the place where the defendant
resides:Provided further that where any such defendant is a public
officer in Bangladesh or Pakistan (not belonging to the Bangladesh
or, as the case may be, Pakistan military, naval or air forces) or
is a servant of a railway company or local authority in that
country, the summons, together with a copy thereof, may be sent for
service on the defendant to such officer or authority in that
country as the Central Government may, by notification in the
Official Gazette, specify in this behalf.The rule relating to
service on defendants residing in Pakistan was added by the
Amending Act XIX of 1951. This amendment aims at implementing the
agreement entered into with the Pakistan Government on reciprocal
basis. Bangladesh has been included in the rule by the Amendment
Act, 1976.Rule 26 and 26A of Order V provides that where the
defendant resides in foreign country, the service of summons may
also be effected through the political agent there or a court
established there or to an officer of the government with authority
to serve summons in addition to the provisions mentioned
above.[footnoteRef:51] They read as follows:- [51: Pandit U. M.,
Commentary on Civil Procedure Code, Unique Law Publications,
Ahmadabad, 2009 at p. 801.]
Rule 26. Service in foreign territory through political agent or
court Where (a) in the exercise of any foreign jurisdiction vested
in the Central Government, a political agent has been appointed, or
a court has been established or continued, with power to serve a
summons, issued by a court under this Code, in any foreign
territory in which the defendant actually and voluntarily resides,
carries on business or personally works for gain, or(b) the Central
Government has, by notification in the Official Gazette, declared,
in respect of any court situate in any such territory and not
established or continued in the exercise of any such jurisdiction
as aforesaid, that service by such court of any summons issued by a
court under this Code shall be deemed to be valid service, the
summons may be sent to such political agent or court, by post, or
otherwise, or if so directed by the Central Government, through the
Ministry of that Government dealing with foreign affairs, or in
such other manner as may be specified by the Central Government for
the purpose of being served upon the defendant; and, if the
political agent or court returns the summons with an endorsement
purporting to have been made by such political agent or by the
Judge or other officer of the court to the effect that the summons
has been served on the defendant in the manner hereinbefore
directed, such endorsement shall be deemed to be evidence of
service.Rule 26A. Summonses to be sent to officers of foreign
countries -Where the Central Government has, by notification in the
Official Gazette, declared in respect of any foreign territory that
summonses to be served on defendants actually and voluntarily
residing or carrying on business or personally working for gain in
that foreign territory may be sent to an officer of the government
of the foreign territory specified by the Central Government, the
summonses may be sent to such officer, through the Ministry of the
Government of India dealing with foreign affairs or in such other
manner as may be specified by the Central Government; and if such
officer returns any such summons with an endorsement purporting to
have been made by him that the summons has been served on the
defendant, such endorsement shall be deemed to be evidence of
service.Service of Summons on Public OfficersRule 27 states that
where the defendant is a public officer (not belonging to the
Indian military, naval or air forces) or is a servant of a railway
company or local authority, the court may send the summons for
service on the defendant to the head of the office in which he is
employed, together with a copy to be retained by the defendant.
Rule 27 reads as:-Rule 27. Service on civil public officer or on
servant of railway company or local authority -Where the defendant
is a public officer (not belonging to the Indian military naval or
air forces, or is the servant of a railway company or local
authority, the court may, if it appears to it that the summons may
be most conveniently so served, send it for service on the
defendant to the head of the office in which he is employed
together with a copy to be retained by the defendant.Service of
summons on Soldiers, Sailors or AirmenRule 28 states that where the
defendant is a soldier, sailor or airman, the court shall send the
summons to his commanding officer for service together with a copy
to be retained by the defendant. It reads as:-Rule 28. Service on
soldiers, sailors or airmen -Where the defendant is a soldier,
sailor or airman, the court shall send the summons for service to
his commanding officer together with a copy to be retained by the
defendant.Procedure after serving of SummonsWhere a summons is
delivered or sent to any person for service under Rule 24, 27 or
28, such person is bound to serve it, if possible, and return it
under his signature, with the written acknowledgement of the
defendant, and such signature is deemed to be evidence of service.
If for any cause service is impossible, the summons has to be
returned to the court with a full statement of such cause and of
the steps taken to procure service, and such statement is deemed to
be evidence of non-service. Rule 29 in this regard reads as:-Rule
29. Duty of person to whom summons is delivered or sent for service
-(1) Where a summons is delivered or sent to any person for service
under rule 24, rule 27 or rule 28, such person shall be bound to
serve it if possible, and to return it under his signature, with
the written acknowledgement of the defendant, and such signature
shall be deemed to be evidence of service.(2) Where from any cause
service is impossible, the summons shall be returned to the court
with a full statement of such cause and of the steps taken to
procure service, and such statement shall be deemed to be evidence
of non-service.Service of Summons to Persons of High RankingWhere
the defendant is, in the opinion of the court, of a rank entitling
him to such mark of consideration, the court may substitute for a
summons a letter signed by the judge or such officer appointed by
him, containing all the particulars of a summons. Such a letter may
be sent to the defendant by post, by a special messenger or in any
other manner and where the defendant has an agent empowered to
accept service, the letter may be delivered or sent to such agent.
Such procedure has been incorporated in Rule 30 of Order V of the
Code which reads as:-Rule 30. Substitution of letter for summons
-(1) The court may, notwithstanding anything hereinbefore
contained, substitute for a summons a letter signed by the Judge or
such officer as he may appoint in this behalf, where the defendant
is, in the opinion of the court, of a rank entitling him to such
mark of consideration.(2) A letter substituted under sub-rule (1)
shall contain all the particulars required to be stated in a
summons, and subject to the provisions of sub-rule (3), shall be
treated in all respects as a summons.(3) A letter so substituted
may be sent to the defendant by post or by a special messenger
selected by the court, or in any other manner which the court
thinks fit; and, where the defendant has an agent empowered to
accept service, the letter may be delivered or sent to such
agent.Service of summons on Corporation or Partnership FirmRule 2
of Order 29 of the Code states that where the defendant is a
corporation, the summons may be served on the secretary or on any
director or other principal officer of the corporation. Summons may
also be served by leaving it or sending it by post addressed to the
corporation at the registered office or if there is no registered
office, then at place where corporation carries on
business.[footnoteRef:52] Rule 2, Order 29 reads as:- [52: Takwani
C. K., Civil Procedure, 7th ed., Eastern Book Company, Lucknow,
2014 at p. 256.]
Rule 2. Service on corporation -Subject to any statutory
provision regulating service of process, where the suit is against
a corporation, the summons may be served (a) on the secretary, or
on any director, or other principal officer of the corporation, or
(b) by leaving it or sending it by post addressed to the
corporation at the registered office, or if there is no registered
office then at the place where the corporation carries on
business.Further, Rule 3, Order 30 of the code states that where
the defendants are partners in any firm, the summons should be
served upon any one or more of the partners or upon any person
having the control or management of the partnership business at its
principle place of business in India. But if plaintiff knows that
the partnership business has been dissolved before the institution
of the suit, the summons shall be served upon every person sought
to be held liable in India.[footnoteRef:53] Rule 3, Order 30 reads
as:- [53: Supra 51.]
Rule 3. Service -Where persons are sued as partners in the name
of their firm, the summons shall be served either (a) upon any one
or more of the partners, or (b) at the principal place at which the
partnership business is carried on within India upon any person
having, at the time service, the control or management of the
partnership business there, as the court may direct; and such
service shall be deemed good service upon the firm so sued, whether
all or any of the partners are within or without India:Provided
that in the case of partnership which has been dissolved to the
knowledge of the plaintiff before the institution of the suit, the
summons shall be served upon every person within India whom it is
sought to make liable.ConclusionIn order to conclude, it can be
said that a summons is a paper issued by a court informing a person
that a complaint has been filed against her. It may be served by an
authorized person for service of process, called a process server.
The summons states the name of both plaintiff and defendant, the
court and its address, the name and address of the plaintiff's
attorney, and instructions on how to file a required response to
the complaint within a certain time (such as 30 days after
service), usually with a form on the back on which information of
service of summons and complaint is to be filled out and signed by
the process server. A copy of the summons must be served on each
defendant at the same time as the complaint to start the time
running for the defendant to answer. After service to the
defendants, the original summons, along with the "return of
service" proving the summons and complaint were served, is filed
with the court to show that each defendant was served. Further
correct issue and service of summons is very is of prime
importance. The importance of service of summons, is that the
defendant may be informed of the institution of the suit in due
time before the date fixed for the hearing and to extend him an
opportunity to resist the suit. It is a fundamental rule of
procedure. A party must have a fair and reasonable notice of the
legal proceedings initiated against him, so that he can defend
himself.
BibliographyBooks & Statutes Tandon M. P., The Code of Civil
Procedure, 1908, 26th ed., Allahabad Law Agency, Faridabad,
2008.
Takwani C. K., Civil Procedure, 7th ed., Eastern Book Company,
Lucknow, 2014.
Mulla, The Code of Civil Procedure, 17th ed., LexisNexis
Butterworths Publications, Delhi, 2007.
Pandit U. M., Commentary on Civil Procedure Code, Unique Law
Publications, Ahmadabad, 2009.
Sarkar, Code of Civil Procedure, 11th ed., Wadhawa Publications,
Nagpur, 2006.
The Code of Civil Procedure, 1908.
Weblinks
http://www.assignmentpoint.com/arts/law/the-code-of-civil-procedure-1908-lecture-05.html
http://research.lawyers.com/process-serving.html
http://www.indianlawcases.com/The.Code.of.Civil.Procedure.1908-742
http://en.wikipedia.org/wiki/Summons#Judicial_summons
www.indiankanoon.org www.manupatra.com
