ARMY INSTITUTE OF LAW

SUBMITTED IN PARTIAL FULLFILMENT OF THE REQUIREMENT FOR

THE DEGREE OF B.A.L.L.B FIFTH YEAR 2018-19

SUMMONS TO DEFENDANTS
UNDER THE CIVIL
PROCEDURE CODE, 1908

Submitted To: Submitted By:

Dr. Amritpal Kaur Shreya Singh

Assist. Professor of Law 1414

Army Institute of Law Section- B

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 ACKNOWLEDGEMENT

“I was born with darkness of ignorance; my teacher opened my eyes with the light of
knowledge. I offer my respectful obedience to her”.

I sincerely thank Dr. Amritpal , Asst. Professor of Law for her erudite encouragement,
grateful guidance and implicit support. I express my gratitude towards her for her
painstakingly meticulous supervision and support that helped me propel along this project.

SHREYA SINGH

1414

B.A. LLB (FIFTH YEAR)

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 TABLE OF CONTENTS

CONTENTS PAGE NO.

1. INTRODUCTION 4

2. SUMMONS UNDER THE CPC 4

3. ISSUE OF SUMMONS 4

4. PROCEDURE FOR SERVICE OF SUMMONS 5

5. SERVICE OF SUMMONS 8

6. SERVICE OF SUMMONS IN SPECIAL CASES 9

7. CONCLUSION 13

8. BIBLIOGRAPHY 14

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 INTRODUCTION

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’.
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.1

SUMMOMS UNDER THE CIVIL PROCEDURE CODE, 1908

Sections 27-29 and Order V Rules 1-30 (Summons to Defendants) and Order XVI (Summons
to witnesses) to define and deal with the process of issue & service of summons.

ISSUE OF SUMMONS

A 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.2

SUMMONS TO DEFENDANTS

S. 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].3

1
Earl Jowitt, The Dictionary of English Law (1972), p. 1700.
2
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.
3
Added by Act No. 46 of 1999, section 3 (w.e.f. 1-7-2002).

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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.

Illustration

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.

OBJECTIVE: 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.

ORDER V- SUMMONS TO DEFENDANTS

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.4

PROCEDURE FOR SERVICE OF SUMMONS

Rule 1 & 2 Summons- Every Summon shall be signed by a judge or such officer appointed
by him and shall be sealed with seal of the court and must be annexed with a copy of the
Plaint.

In Karnail Singh v. Dina Nath,5 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

4
http://en.wikipedia.org/wiki/Summons#Judicial_summons as assessed on 19.10.2014 at 2:00 P.M.
5
1985(2) 88 PLR 477.

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legislature but attachment of copy of complaint or concise statement thereof along with
summons is mandatory.6

In another case of Sneh Gupta v. Devi Sarup,7 summons were served on the party after the
date fixed in the suit had expired. The Hon’ble 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.

Rule 3: Appearance in Person:

Defendant to appear in person or by a pleader who is able to answer all material questions
relating to the suit or by a pleader accompanied by some personable to answer all such
questions.

Rule 4: Exemption from Appearance in person

The Civil Court may grant exemption from appearance in person in certain circumstances. No
party shall be ordered to appear in person unless he resides:

a) Within the local limits of the court’s jurisdiction

b) Outside such limits but at a place less than 50 miles or where public conveyance is
available 200 miles, from the court house; Or
c) Who is a woman not appearing in Public (Section 132)
d) Who is entitled to exemption under the Code ( Section 133)

ESSENTIAL CONTENTS OF SUMMONS

Every 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.

6
Babu Ram Bhatnagar v. Satish Kumar Rawal, 1992(1) RRR 35 (P&H).
7
2009(2) RCR(Civil) 129 SC

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 3. Order the defendant to produce all documents in his possession or power upon
which he intends to rely in support of his case.8

R. 5-8 of Order 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,9 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,10 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.

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.

8
Supra 10.
9
2001(4) RCR(Civil) 322(P&H)
10
2003(1) RCR(Civil) 616(P&H)

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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.

SERVICE OF SUMMONS

The 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.11

In Bheru Lal v. Shanti Lal,12 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.

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.13

The Code prescribes few principal modes of serving a summons to a defendant, as discussed
below:-

a) Service By Court ( Rule 9)

b) Personal or Direct Service (Rule 11-16, 18)
c) Service by Plaintiff ( Rule 9-A)
d) Substituted Service ( Rule 17. 19-20)
e) Service by Post
A. SERVICE BY COURT
 Where the Defendant is residing within the jurisdiction of the court, summons shall be
served through an officer of the Court or approved Courier Service.
 Can be sent by registered speed post (with acknowledgement due), courier, e-mail,
fax or any other possible means of transaction.

11
Takwani C. K., Civil Procedure, 7th ed., Eastern Book Company, Lucknow, 2014 at p. 251.
12
AIR 1985 Raj. 53
13
Salem Advocate Bar Association (II) v. Union of India, (2005)6 SCC 344.

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  Sermons to be served outside the jurisdiction of the court as the defendant resides
outside, the summon will be served through an officer of court within whose
jurisdiction the defendant resides.
 Refusal to accept is a valid service.
B. PERSONAL OR DIRECT SERVICE

Rule 12: Must be served in Person or to his authorized agent.

Rule 13: Service on Agent: In a suit relating to any business or work, not residing within the
territorial jurisdiction of the Court issuing the summons, it may be served to the manager or
agent carrying on such business or work.

Rule 14: Service on Agent in-charge of an Immovable Property:

In a suit for Immovable property, if the service cannot be made on the Defendant personally
and the Defendant has no Authorised Agent, the service may be made on any agent of
Defendant in-charge of the property.

Rule 15: Service on Family Members: May be served on any adult male or female family
member residing there. Servants do not form a part of Family Member.

C. SERVICE BY PLAINTIFF

It is also known as Dasti Summons. In addition to the Summons by the Court, the plaintiff
may also with the permission of the court serve the summons in addition to service of
summons by the Court. But there should be sufficient safeguard to avoid abuse of law.

D. SUBSTITUTED SERVICE

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

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  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.

E. 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.

In Rabindra Singh v. Financial Commissioner, Cooperation, Punjab,14 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.

In the matter of Satish Construction Co. v. Allahabad Bank,15 the Hon’ble 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.

SERVICE OF SUMMONS IN SPECIAL CASES

There 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.

14
2008(3) RCR(Civil) 929 SC.
15
AIR 1999 MP 21.

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A. SERVICE OF SUMMONS IN ANOTHER STATE

S. 28 and Rules 21-23, Order V of the code particularly deals with the service summons to
the defendants residing in another state.

Section- 28. Service of summons where defendant resides in another State:

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.16 Further, Rule 21 of Order V describes various modes of serving the
summons. It reads as:-

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.

B. SERVICE OF SUMMONS IN PRISONS

Rule 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.17 The court shall take judicial notice of the signature of the jailor
on its return.

C. SERVICE OF FOREIGN SUMMONS

Services 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.18

16
Mulla, The Code of Civil Procedure, 17th ed., LexisNexis Butterworths Publications, Delhi, 2007 at p. 556.
17
http://www.indianlawcases.com/The.Code.of.Civil.Procedure.1908-742 as assessed on 20.10.2014 at 11:00
A.M.
18
Mulla, The Code of Civil Procedure, 17th ed., LexisNexis Butterworths Publications, Delhi, 2007 at p. 556.

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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.

Rule 26. Service in foreign territory through political agent or court –

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.

D. SERVICE OF SUMMONS ON PUBLIC OFFICERS

Rule 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.

E. SERVICE OF SUMMONS ON SOLDIERS, SAILORS OR AIRMEN

Rule 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.

F. PROCEDURE AFTER SERVICE OF SUMMONS

Rule 29: Duty of person to whom summons is delivered or sent for service –

Where 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.

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 CONCLUSION

In 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.

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 BIBLIOGRAPHY

BOOKS & STATUTES

1. Tandon M. P., The Code of Civil Procedure, 1908, 26th ed., Allahabad Law Agency,
Faridabad, 2008.
2. Takwani C. K., Civil Procedure, 7th ed., Eastern Book Company, Lucknow, 2014.
3. Mulla, The Code of Civil Procedure, 17th ed., LexisNexis Butterworths Publications,
Delhi, 2007.
4. Pandit U. M., Commentary on Civil Procedure Code, Unique Law Publications,
Ahmadabad, 2009.
5. Sarkar, Code of Civil Procedure, 11th ed., Wadhawa Publications, Nagpur, 2006.
6. The Code of Civil Procedure, 1908.

WEBSITES REFRRED
1. http://www.assignmentpoint.com/arts/law/the-code-of-civil-procedure-1908-lecture-
05.html
2. http://research.lawyers.com/process-serving.html
3. http://www.indianlawcases.com/The.Code.of.Civil.Procedure.1908-742
4. http://en.wikipedia.org/wiki/Summons#Judicial_summons
5. www.indiankanoon.org
6. www.manupatra.com

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