Order V Rule 28 CPC: Service of Summons on Soldiers, Sailors and Airmen
Order V Rule 28 of the Code of Civil Procedure, 1908 (CPC) provides a special procedure for serving a civil court summons when the defendant is a soldier, sailor or airman. Instead of relying on ordinary direct service, the court sends the summons to the defendant's commanding officer, together with a copy for the defendant to keep.
Order V Rule 28 CPC: statutory provision
Heading: 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.
This rule forms part of Order V (Issue and Service of Summons) in the First Schedule to the Code of Civil Procedure, 1908. It concerns service of summons in civil proceedings; it does not, by itself, determine the court's jurisdiction or the merits of the dispute.
Meaning and scope of Rule 28
Who is covered?
The provision expressly refers to a defendant who is a soldier, sailor or airman. In context, it addresses service on personnel in military, naval or air service through their command structure. Whether the rule applies to a particular person's service status is determined from the relevant facts and applicable law.
Who is the commanding officer?
For this purpose, the commanding officer is the officer responsible for the defendant within the relevant service chain of command. The court should use sufficient service details to identify the appropriate command or unit. Rule 28 does not require the court to assume that a private or civilian employer is a commanding officer.
What does 'shall' require?
The word 'shall' makes the route through the commanding officer the prescribed procedure where Rule 28 applies. The summons must be accompanied by a copy intended to remain with the defendant, enabling the defendant to know the claim and respond.
How summons are served under Order V Rule 28
- Identify the defendant's service status. The court is informed that the defendant is a soldier, sailor or airman and obtains available particulars of the commanding officer or unit.
- Prepare the summons. The issuing court prepares the summons in accordance with the CPC and applicable court rules, including the relevant case details and required documents.
- Send it to the commanding officer. Under Rule 28, the court forwards the summons for service to the defendant's commanding officer, with a copy to be retained by the defendant.
- Effect and document service. The commanding officer arranges service and the relevant return or proof of service is handled under the applicable procedural rules, including Order V Rule 29.
- Examine the service record. Before proceeding on the basis of service, the court considers whether service is adequately established in accordance with the CPC and any applicable High Court rules.
Practical point: Sending a summons to a commanding officer is the statutory channel for service. It should not automatically be equated with proof that the defendant personally received the summons; the service return and surrounding record remain important.
Related CPC provisions
| Provision | Subject and relevance |
|---|---|
| Order V Rule 27 | Service on certain public officers and employees through the head of office where the court considers it convenient; distinct from the military service procedure. |
| Order V Rule 29 | Addresses the duty of a person to whom a summons is delivered or sent under Rules 24, 27 or 28 to serve it and return it with the prescribed endorsement. |
| Order V Rule 24 | Separate procedure for a defendant confined in prison. |
| Order V Rules 1 and 2 | General requirements concerning issue of summons and accompanying plaint. |
| Order IX CPC | Procedural consequences of appearance or non-appearance, subject to the court's determination of proper service. |
Does Rule 28 prevent a civil case against service personnel?
No. Rule 28 deals with how the summons is served, not whether a suit can be brought. Jurisdiction, maintainability, available defences and any special statutory protections must be considered separately. A defendant's military status alone does not make a civil summons invalid.
Why proper service matters
Service gives the defendant notice of the proceedings and an opportunity to appear and respond. An incomplete or disputed service record may require further examination or a fresh direction by the court. Whether an ex parte proceeding or decree is sustainable depends on the applicable CPC provisions and the facts of the particular case.
Frequently asked questions
Can a civil court serve a summons on a soldier?
Yes. Order V Rule 28 specifically directs the court to send the summons to the soldier's commanding officer for service, with a copy for the defendant.
Does Rule 28 apply to sailors and airmen?
Yes. The express wording covers soldiers, sailors and airmen.
Must the defendant receive a copy?
Yes. Rule 28 requires a copy to be sent for retention by the defendant.
What is the commanding officer's role?
The commanding officer receives the summons for service through the prescribed channel. Order V Rule 29 is relevant to service and the return or endorsement of the summons.
Is dispatch to the commanding officer enough to prove service?
Not necessarily. The court should consider the service return and other relevant evidence before deciding whether service has been duly effected.
Official statutory source and further reading
Read the Code of Civil Procedure, 1908 (Act 5 of 1908) on India Code (official PDF). Consult the current text of Order V and the rules or practice directions of the High Court having jurisdiction, as local procedural requirements may also apply.
This article explains the general CPC provision and is not a substitute for advice on a particular case. Statutory amendments, applicable High Court rules and judicial orders should be checked before taking procedural action.