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Essentials, Forms and Mode of Service of Summons in CPC

Updated: May 5


Essentials, Forms and  Mode of Service of Summons in CPC

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When a plaintiff initiates a suit, it's imperative to inform the defendant that legal action has been taken against them and that their presence is required in court to defend the case.


This notification sent to the defendant by the court is technically referred to as "summons."


While the term "summons" is not explicitly defined in the Code, its definition according to the dictionary meaning is significant.


As per this definition, "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."


When a plaintiff files a suit against a defendant and seeks relief, it's essential to afford the defendant the chance to respond to the claims presented in the plaint. This aligns with the principle of natural justice, encapsulated in the Latin maxim "audi alteram partem," which translates to "hear the other side."


No one should be condemned without having the opportunity to present their side of the story. If the defendant is not properly served with the summons, any decree passed against them will not hold binding authority.


A defendant to whom a summons has been issued has the option to appear in one of three ways: 


1. In person,


2. Through a pleader who is duly instructed and capable of addressing all significant queries pertaining to the suit,


3. Through a pleader accompanied by someone capable of addressing all such queries.


Similarly, the plaintiff may also choose to appear in person. However, the court reserves the authority to direct the defendant to appear in a specific manner if deemed necessary.

 
 

Essentials of Summons


Each summons must bear the signature of the judge or an appointed officer and must be stamped with the court's seal. Additionally, it must be accompanied by a copy of the plaint.


The summons is required to include a directive specifying whether the date set is for the settlement of issues only or for the final disposal of the suit. In the latter scenario, the defendant should be instructed to bring forth their witnesses.


The court must allow ample time for the defendant to appear and respond to the plaintiff's claim on the designated day.


Additionally, the summons should include an order for the defendant to produce all relevant documents or copies thereof in their possession or under their control, which they intend to rely on in support of their case.


Mode of Service of Summons

Personal Service

Order V Rules 10 to 16 and 18 govern the process of personal or direct service of summons upon the defendant, which is considered the standard mode of service. In this regard, the following principles should be kept in mind:


(i) Whenever feasible, the summons must be delivered to the defendant in person or to their authorised agent.


(ii) If the defendant is not present at their residence during the service of summons, and there is no expectation of their return within a reasonable timeframe, and if they lack an authorised agent, the summons may be served on any adult male or female member of the defendant's household residing with them. It's important to note that a servant cannot be considered a family member.


(iii) In cases involving business or work against a person residing outside the court's territorial jurisdiction, the summons may be served to the manager or agent responsible for conducting such business or work.


(iv) In suits concerning immovable property where personal service of summons on the defendant is not feasible and if the defendant lacks an authorised agent, the summons may be served on any agent of the defendant who is in charge of the property.


(v) In cases with multiple defendants, summons must be served on each individual defendant.

 
 

Service By Court

Summons to a defendant residing within the court's jurisdiction must be served either through a court officer or an approved courier service.


Additionally, summons can be delivered via registered post, speed post with acknowledgment due (RPAD), courier service, fax, message, email service, or any other permissible means of transmission.


If the defendant resides outside the court's jurisdiction, the summons must be served through a court officer within the defendant's jurisdiction. In case of refusal to accept the summons, the court will consider it as valid service.


If the summons is properly addressed, prepaid, and sent by registered post acknowledgment due (RPAD), there will be a presumption of valid service even without an acknowledgment slip.


While it's reasonable to provide the plaintiff with an opportunity to serve the summons, precautions should be taken to prevent false reports of service.


High Courts should establish appropriate rules or issue practice directions to ensure the proper implementation of these provisions and to prevent the abuse of legal processes.


Service by Plaintiff

Under Order V Rule 9A, the court may also authorise the plaintiff to serve the summons, in addition to the service of summons carried out by the court.


Substituted Service

"Substituted service" refers to serving a summons through an alternative method. There are two modes of substituted service:


(a) (i) When the defendant or their agent refuses to sign the acknowledgment; or


(ii) If, despite diligent efforts, the serving officer cannot locate the defendant at their residence during the time of summons service, and there is no expectation of finding them there within a reasonable timeframe, and there is neither an authorised agent nor any other person available for service, the summons can be served by affixing a copy on the outer door or another conspicuous part of the defendant's residence, place of business, or workplace where they usually work for gain.


The serving officer must then return the original summons to the issuing court with an endorsed report detailing the circumstances of affixing the copy, including the name and address of any person who identified the premises and witnessed the affixation.


If the court is satisfied, based on the affidavit of the serving officer or their examination on oath, that the summons has been properly served, it may declare that the summons has been duly served or conduct further inquiry as deemed necessary.


Compliance with Rule 19 is crucial for ensuring the validity of the summons service.


(b) When the court believes that the defendant is evading service or for any other reason the summons cannot be served in the usual manner, service may be carried out by:


(i) Affixing a copy of the summons in a conspicuous location within the courthouse, as well as on a conspicuous part of the defendant's last known residence, place of business, or workplace where they previously worked for gain; or


(ii) In any manner the court deems appropriate.



Refusal of Summons


If the defendant refuses to accept the summons, they are considered to have been served. Likewise, if an acknowledgment or receipt, purportedly signed by the defendant or their agent, is received by the court indicating refusal to accept the delivery of the summons, the court will proceed treating the defendant as served.


Objection to Summons


An objection regarding the service of summons should be raised as soon as possible. Failure to raise it at that stage is considered as waived.


It has been established that there is a distinction between the non-service of notice and procedural irregularity in the service of notice.


In cases of the former category, all subsequent actions would be deemed legally defective, whereas in cases of the latter category, subsequent actions would be upheld unless the defendant can demonstrate significant prejudice resulting from the procedural lapse in serving the notice.


Whether the procedural lapse complained of has caused prejudice to the defendant depends on the specific circumstances of each case.

 
 


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