Service of Summons The Code of Civil Procedure, 1908

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Service of Summons

Assignment By: Prof Subramanian

SUBMITTED FOR THE PURPOSE OF INTERNAL ASSESSMENT

THE CODE OF CIVIL PROCEDURE

SECOND SEMESTER

Prepared By:
SUMIT CHATTERJEE (17IP63032)
Service of Summons The Code of Civil Procedure, 1908

Summons

The 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’.

Although the term ‘ Summons” has not been defined in the code, a 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 officer of the Court for a certain purpose. A summon is a legal document
that is issued by a Court on a person involved in a legal proceeding. When a legal action is taken
against a person or when any person is required to appear in the court as a witness in a
proceeding, to call upon such person and ensure his presence on the given date of the proceeding,
summons are served.

The summons is the descendant of the writ of the common law. With the provision in Rule 1 of
order 5 where it is stated that no summons shall be issued when the defendant has appeared at the
presentation of the plaint and admitted the plaintiff’s claim. In all other cases summons must be
issued and served to defendants. Every summons shall be signed by the Judge or such officer
appointed by him and shall be sealed with the seal of the court, and must be accompanied by a
copy of the plaint according to Rule 2.

Importance of Service of Summons:

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. There are some
important of service of summons. These are following:

 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.
 It may be issued to the defendant to appear and answer the claim and may be served in
manner prescribed.
 A summons may be sent by the court by which it is issued.
 In every suit heard by a Court of small Causes, the summons shall be for final disposal of
the suit.
 It can be effected in section 27, order V and Rule 1 of the C P C.
Service of Summons The Code of Civil Procedure, 1908

Mode of Service of Summons :

The Code prescribes four members of service of summons upon a defendant:

 Personal Service
 Service by affixation
 Service by post, and,
 Substituted Service

1. Personal or Direct Service:

Rules 10 to 16 and 18 deal with personal or direct service of summons upon the defendant. This
is an ordinary made of service of summons. Here the following principle; must be remembered:

 Where it is practicable, the summons must be served to the defendant in person or to his
authorized agent (rule 12).
 Where there are more defendants that one, service of the summons shall be made on each
defendant (rule 11).
 Where the defendant is absent from his residence at the time of service of summons may
be served on any adult male member of the defendant’s family residing with him (rule
15).

In all above cases, service of summons should be made by delivering or tendering a copy
thereof.

2. Service by Affixation:

Rule 17 specifies this method. When the defendant or his agent refuses to accept personal
service of summons, this method is to be used when the defendant or his agent refuses to accept
personal service, the serving officer shall affix a copy of the summons to 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.

Mere temporary absence of a defendant from his residence or place of business does not justify
service by affixation.

Case: – Shamsunnahar Vs. Salahudding, 4 M L R (A D) 405

Service of Summons The Code of Civil Procedure, 1908

3. Service by Post:

Rule 19B specifies that the court shall, in addition to, and simultaneously with, the issue of
summons for personal service, also direct the summons for personal service, also direct the
summons to be serve, by registered post with acknowledgement due addressed to the defendant
or his agent at the place where the defendant or his agent actually and voluntarily resides or
carriers or business.

Case: – Gyanammal Vs. Abdul Hussain

4. Substituted Service:

The Provision for substituted service is provided for in Rule 20 or order 5 of the C P C. Rule 20
specifies that in two situations the method of substituted service may be restore to:

 When there is reason to believe that the defendant is keeping out of the way for the
purpose of avoiding service, or
 When for any other reason summons cannot be served in the ordinary way.

The provisions of substituted service have to be resorted when the summons is not served by
normal process through the court bailiff. Where the court is satisfied that there is reason to
believe that the defendant is keeping out of the way for purpose of avoiding sen/ice or that for
any others reason the summons can not be served in ordinary way the court shall order summons
to be served by affixing copy thereof in conspicuous part of the house. To expedite service of
summons one more provision is relating to substituted service under which the court orders
service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating
in the locality in which the defendant last resided or carried on business or personally worked for
gain. Where the service is substituted, the court shall fix time for appearance of the defendant as
the case may require. Delay in service of summons is identified as one of the major reasons for
delay in judicial proceedings. To avoid the delay, service of summons can be made
simultaneously by registered post and also by normal court process. While allowing additional
service is at the discretion of the court, but court can refuse the permission only if it considers it
unnecessary to allow the same in circumstances of the case. Service of summons by post was one
of the measures recommended by Law Commission of India to reduce delay.

Service in Special Cases:

Apart from the above four types of modes of service of summons rules 21 to 30 to deal with
another mode of service which deal with service outside the Jurisdiction of the courts etc.

Summons is an instrument used by the court to commence a civil action or proceedings and is a
means to acquire jurisdiction over party. It is a process directed to a proper officer requiring him
Service of Summons The Code of Civil Procedure, 1908

to notify the person named, that an action has been commenced against him, in the court from
where process is issued and that he is required to appear, on a day named and answer the claim in
such action. When the suit is duly instituted summons may be issued to defendant to appear and
answer the claim. Defendant to whom a summons has been issued may appear in person or by a
pleader duly instructed or by a pleader accompanied by some person who is able to answer all
questions. To expedite the filing of reply and adjudication of claim, the court may direct filing of
written statement on date of appearance and issue suitable summons for that purpose. Failure to
do so may result in Ex-parte judgment under order 8, rule 10. The provision of service by
registered post is only in addition to the service of summons in ordinary course through court
process. Mere issue by power without ordinary process is not proper. If the defendant refuses to
take service of summons, when tendered to him, or the fact that the acknowledgement has been
lost or mislaid or has not been received back by the court for any other reason within 30 days
from date of issue of summons, court can draw a presumption that summons is duly served A
summon is served when a suit has been initiated by the plaintiff against the defendant, the court
directs to issue summons to the defendant as this ensures a fair trail. If the summons are not duly
served then no action can be taken against the defendant. In conclusion, it can be said that
Summons has played an important role in that code of Civil Procedure, 1908.