Issue and Service of Summons – Order 5 CPC

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Issue and Service of Summons – Order 5 CPC

Introduction

When a suit is filed against the defendant for certain relief, the defendant has the right to assert his side of the story. This is done following the doctrine of “AUDI ALTERAM PARTEM” which means hearing both sides equally. The defendant must be notified when a lawsuit has been filed against him and he has the right to defend himself. In law, summons refers to the notification sent by the competent court to the defendant.

In this code, the said expression (summons) is not defined. But, Black’s law dictionary defines a summons as an action initiated against a defendant. After the plaint is filed, the summon is issued against the defendant to appear in court to defend it. The intimation which is sent to the other party (defendant) is called a summons. The provision related to the summons is given in Section 27-32 and Order V of CPC.

There are two stages of summoning:

  1. Issuance of Summon – Issuance of Summons means the issuance of summons by the court. (O.V Rule 1 to 8)
  2. Service of Summons -Service of Summons means delivery of summon to the defendant. (O.V Rule 9 to 30)

Order V must be read with Section 27-32 of CPC, 1908

Section 27 Order V Rule 1

Section 27 stipulates that after the institution of the suit, the first duty of the court is to the issuance of summons calling on the defendant to appear and answer the claim but not beyond 30 days from the date of the institution of the suit and as per the manner prescribed in the rules mentioned in Order V of the first schedule.

If a defendant appears at the presentation of the plaint and admits the plaintiff’s claim, no summons shall be issued. Further, if the defendant does not file the written statement within thirty days, it may be permitted for him to file the same on such other day as the Court specifies, with reasons to be recorded in writing, but not later than ninety days after the date of service of the summons.

Essentials of Summons:

  1. Every summon shall be signed by the judge or
  2. Any other officer appointed by him
  3. Summon must be sealed with the seal of the court
  4. A copy of the plaint is required to be enclosed with every summons.

The appearance of the Parties

The court may order the plaintiff or Defendant to appear –

  1. In person or,
  2. By a Pleader having been properly instructed and being able to answer all material questions regarding the case, or
  3. By a Pleader along with someone who can answer all such questions
  4. When the court requires the personal appearance of the defendant and the plaintiff, the court shall make an order for such an appearance.

But, According to Rule 4, No party shall be ordered to appear in person as per Rule 3 unless-

  1. A) He resides within the local limits of the competent court’s jurisdiction.
  2. b) Or outside such local limits but within (i) 50 miles and (ii) 200 miles, distance from the courthouse.

Contents of Summon

The summons should contain the course whether the summon is given for the settlement of issues or Final disposal of the suit (Rule 5). In case of Final disposal of the suit, the defendant shall be directed to produce his witnesses on the day of appearance.(Rule8) The summons also orders the defendant to produce all the documents in his possession which he plans to use as evidence to bolster his argument. (Rule 7). The court while fixing the date of appearance must look into these factors:

  1. The current business of the court,
  2. The place of residence of the defendant,
  3. Time necessary for service of summons,
  4. Sufficient time to enable the defendant to prepare his defense.

Modes of Service of summons

  1. Delivery of summoning by the court [Rule 9].
  2. Service by plaintiff [Rule 9A]
  3. Personal or Direct Service [Rule 10-16, 18]
  4. Substituted Service [Rule 17, 19-20]
  5. Service by Post.

Rule 9 – Service of summoning by the Court

Defendants or their agents residing within the jurisdiction of the court shall be served with the summons either by a proper officer of the court or by a courier service as approved by the court. Sub-rule 3 explains how the summons may be served by delivery or by permissible means of transmission:

The acknowledgment must be sent by Registered Post;

The High Court or District Court may approve Speed Post or courier services or,

Some other methods for transmission like fax, message or electronic mail administration, and so on.

Where the defendant resides outside the jurisdiction of the court then such summon shall serve to be by the officer of the court within whose jurisdiction the defendant resides except by registered post acknowledgment due and provisions of rule 21 do not apply.

In the accompanying cases, the court might announce valid service of summons-

(a) The refusal or disapproval by the respondent,

(b) Where the summons was appropriately addressed, ready, and properly sent by enlisted post or affirmation due and having been lost or misplaced and wasn’t gotten by the court in 30 days from the date of issue of summons.

NOTE: The service of summons under this sub-rule 3 will be made on the costs of the plaintiff.

Rule 9A – Service by plaintiff

In addition to the service of summons by the court as per rule 9, the court may also permit the service of summoning by the plaintiff on the application made. The summon must be sealed and signed by the court. If such summon is refused by the defendant hen the summon will be re-issued by the court in the normal manner.

Rule 10 to 16, 18 – Personal or Direct service of summon

This is an ordinary mode of service of summon:

Service of the summons will be made by conveying or offering a duplicate thereof endorsed by the appointed authority or such official appointed along with the seal of the court. (Rule 10)

When there is more than one defendant then service of summon should be made on each of them separately. (Rule 11)

The summon should be served to the defendant in person or to the agent authorized by him. (Rule12)

When the suit is against a person non-resident in the jurisdiction and relates to his business or work then the summons may be served upon any manager or agent who personally carries on such business or work and resides within the local limits of the court. (Rule13)

Ina suit of movable property summons can be served to the agent who is in charge of such property. (Rule 14)

When the defendant is not available or missing during the service of summon then summon may be served to any adult member of his family, whether male or female. (Rule 15)

Rules 17, 19 and 20- Substituted mode of serving the summons

Substituted mode of summons came into the picture when the court is satisfied that the defendant is avoiding the summons and the ordinary mode of summon is unable to serve the purpose.

There are two modes of Substituted Service:

  1. Where the defendant /agent refuses to sign the acknowledgment or

2 .where the serving officer is unable to serve the summon or does not find the defendant at his residence or neither his authorized agent available in that case the service of summon can be made by affixing the copy of summon on the conspicuous place of the house, Following the affixation of such a copy as stated above, the serving officer will return the original to the court issuing the summons with a report that is endorsed thereon.

(a) The fact that the copy has been affixed;

(b) The circumstances under which he did so;

(c) The name and address of the person identified by the house and in whose presence the copy was affixed.

Where a summons is returned under Rule 17, because the summon has not been verified on affidavit by the serving officer or it has been verified as per rule 19 it is at the discretion of the court to examine the serving officer or either declare

As per order 5 of rule 20, if the court is satisfied that there is reason to believe that the defendant avoids service or that the summons cannot be served in the usual manner, the summons may be served in the following ways:

a)By affixing a copy of the summons in some conspicuous place in the courthouse, and in the house in which the defendant is known to have last resided, carried on a business, or personally worked for gain, or

  1. b) In such other manner as it thinks fit.

The court may direct that summons be served through an advertisement in a daily newspaper circulating in the area where the defendant is known to have resided or carried on a business, or personally appeared.

Service of summon by post

When a summons is properly addressed, prepaid, and sent by registered post, and the acknowledgment is lost or not received by the court within 30 days of the date of issue, the court declares that the summons has been duly served. As a result, the court may use any of these methods to serve the summons on the defendant to ensure a fair trial and a timely resolution of the case.

Conclusion

Order 5 of the civil procedure code deals with Summons. Order 5 and its rules provide the procedure to be followed while serving the summons. Summons provides an opportunity for the defendant to defend himself. The mode of serving the summon, procedure after refusal to summon, contents of summon all this has been provided under Order V.

References:

 

Author: Jitendra Yadav,
Graphic Era Hill University, Dehradun

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