What is Summon? How to issue a Summon? How to Serve the summon?

Issue of Summons is defined under Order V of Code of Civil Procedure. As per Order 5 Rule 1 (1) when a suit has been duly instituted, a 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 30 days from the date of service of summons on that defendant.

 

 

Provided that no such summon shall be issued when a defendant has appeared at the presentation of plaint and admitted the plaintiff's claim:

Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the written statement on such other day, as may be specified by the Court, for reasons to be recorded in writing and on payment of such costs as the Court deems fit, but which shall not be later than one hundred twenty days from the date of service of summons. On expiry of one hundred twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the Court shall not allow the written statement to be taken on record.

Appearance in Court against summon

Order (2) has provision that A defendant to whom a summons has been issued under sub-rule (1) may appear-

in person, or

by a pleader duly instructed and able to answer all material questions relating to the suit, or

by a pleader accompanied by some person able to answer all the questions.

As per Order (3) Every such summons shall be signed by the Judge or such officer as he appoints, and shall be released with the seal of the Court.

 

What are the documents to be annexed with the Summon?

As per Order V Rule 2 of Code of Civil Procedure, copy of plaint needs to be annexed to summons. It provides that "every summon shall be accompanied by a copy of plaint"

 

Court order for appearance

As per Order V Rule 3 of Code of Civil Procedure, the Court may order defendant or plaintiff to appear in person. The provisions are:

  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.

Appearance of persons residing outside of certain limits

As per Order V Rule 4 of Code of Civil Procedure, No Party to be ordered to appear in person unless resident within certain limits. The provision under CPC are:

No party shall be ordered to appear in person unless he resides -

within the local limits of the Court's ordinary original jurisdiction, or

without such limits but at a place less than fifty or (where there is railway or steamer communication or other established public conveyance for five sixth 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.

 

Purpose of summons to Parties

As per Order V Rule 5 of Code of Civil Procedure Summons to be either to settle issues or for final disposal. The Provision under this rule is:

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.

 

Fixing day for appearance of Defendant in the Court

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.

 

Option for defendant to produce document relied on by him

Order V Rule 7 has provision related to Summons to order defendant to produce document relied on by him. As per this section the summons to appear and answer shall order the defendant to produce (all documents or copies thereof specified in rule 1-A of Order VIII) in his possession or power upon which he intends to rely in support of his case.

 

When the Defendant needs to produce his witness

As Per Order V 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.

 

How to do service of Summons?

There are different methods for service of summons to the Defendant. They are:

Delivery of summons by court

As per Order V Rule 9(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 serve by him or one of his subordinates or to such courier services as are approved by the Court.

Rule 9(2) provides that 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.

As per Rule 9(3) the services of summons may be made by delivering or transmitting a copy thereof by registered post acknowledgement, due addressed to 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 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.

Rule 9(4) says that 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 acknowledgement due), the provisions of rule 21 shall not apply.

As per Rule 9(5) when an acknowledgement 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 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 summos was properly addressed, pre-paid and duly sent by registered post acknowledgement due, the declaration referred to in this sub-rule shall be made notwithstanding the fact that the acknowledgement having been lost or mislaid, or for any other reason, has not been received by the court within thirty days form the date of issue of summons.

As per Order V Rule 9(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).

 

Can Plaintiff serve summons to Defendant

Order V Rule 9-A has provision of Summons given to the plaintiff for services. (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.

As per Rule 9-A(2) the service of such summons shall be effected by 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.

As per Rule 9-A(3) the provisions of rule 16 and 18 shall apply to a summons personally served under this rule as if the person effecting service were a serving officer.

As per Rule 9-A(4) If such summons, when tendered, is refused or if the person served refuses to sign an acknowledgement of service or for any reason such summons cannot 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.

 

What is mode of service

As per Order V Rule 10 service of 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.

 

How to serve summon on several defendants

Order V Rule 11 has provision regarding service on several defendants. As per this rule save as otherwise prescribed, where there are more defendants than one, service of the summons shall be made on each defendant.

 

Service to be on defendant in person when practicable, or on his agent

As per Order V Rule 12 of Code of Civil Procedure service to be on defendant in person when practicable, or on his agent. Whenever 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.

Can service be made on agent by whom defendant carries on business?

Order V Rule 13 has provision regarding service on agent by whom defendant carries on business.

  1. In a suit relating to any business or work against a person whom 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, a 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.

Can service be made on agent in charge in suits for immovable property

Order V Rule 14 has provision for 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.

 

Should service be on  an adult member on defendant's family

As per Order V Rule 15 where service may be on an adult member of defendant's 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.

Should person served be sign acknowledgement

Order V Rule 16 has provision that 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.

 

What is the procedure when defendant refuses to accept service, or cannot be found

Order V Rule 17 has provision regarding 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 and reasonable diligence, cannot find the defendant, (who is absent from his residence and there is not 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 in whose presence copy was affixed.

 

How to endorse time and manner of service

Order V Rule 18 explains 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.

 

Cane summons be issued simultaneously by post in addition to personal service.

Order 5 Rule 19A deals with Simultaneous issue of summons for service by post in addition to personal service.

  1. The Court shall, in addition to, and simultaneously with, the issue of summons for service in the manner provided in rules 9 to 19 (both inclusive), also direct the summons to be served by registered post, acknowledgement due, addressed to the defendant, or his agent empowered to accept the service, at the place where the defendant, or his agent, actually and voluntarily resides or carries on business or personally works for gain:

    Provided that nothing in this sub-rule shall require the Court to issue a summons for service by registered post, where, in the circumstances of the case, the Court considers it unnecessary.
  2. When an acknowledgement purporting to be signed by the defendant or his agent is received by the Court or the postal article containing the summons is received back by the Court with an endorsement purporting to have been made by a postal employee to the effect that the defendant or his agent had refused to take delivery of the postal article containing the summons, when tendered 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, prepaid and duly sent by registered post, acknowledgement due, the declaration referred to in this sub-rule shall be made notwithstanding the fact that the acknowledgement having been lost or mislaid, or for other reason, has been received by the Court within thirty days from the date of the issue of the summons.

How to do substituted services

Order V Rule 20 deals with Substituted services. (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.

Order V Rule (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 service-Service 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 he 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.

 

What is the procedure for service of summons where defendant resides within jurisdiction of another court.
Order V Rule 21 has provision of Service of summons where defendant resides within jurisdiction of another Court.

A summons may 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.

How is Service within presidency-towns of summons issued by Courts outside

Order V Rule 22 has provision of Service within presidency-towns of summons issued by Courts outside. Where as 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.

 

What is the duty of court to which summons is sent
Order V Rule 20 of Code of Civil Procedure deals with 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.

How to complete service on defendant in prison
Order V Rule 24 of CPC defines Service on defendant in prison. Where the defendant is confined in a 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.

How to complete service of summon where defendant resides out of India and has no agent

Order V Rule 25 has provision for Service where defendant resides out of India and has no agent. 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 :

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 the Official Gazette, specify in this behalf.

How to serve summon in foreign territory through Political Agent or Court
Order V Rule 26 of CPC deals 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.

 

What is the procedure for summonses to be sent to officer to foreign countries.

Order V Rule 26A deals with Summonses to he sent to officer to 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, 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.

How to complete service on civil public officer or on servant of railway company or local authority

Order V Rule 27 of CPC has provision of 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.

 

How to Complete service on soldiers, sailors or airmen
Order V Rule 28 of CPC has provision for 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.

What is the duty of person to whom summons is delivered or sent for service

Order V Rule 29 defines the 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.

How to substitute letter for summons
Order V Rule 30 has provision regarding Substitution of letter for summons. As per Rule 30 -

(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.

 

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