Detailed Study of Summons under CPC, Section 27 to 29, Order V

Introduction

Summons is formal communication by the Court to the defendant (one or more) to appear before it and answer any claim regarding the suit instituted against him by the Plaintiff. Sections 27 to 29 deal with the summons to defendants. In the article, we will discuss in detail the process of summons with Order V in the Civil Procedure Code (CPC).

Summons to defendants: Section 27 to 29 CPC read with Order 5

According to Black’s Law Dictionary, Summons means to command (a person) by service of a summons to appear in court. Section 27 of CPC provides for Summons to defendants. It states that 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 a manner prescribed on such day not beyond thirty days from the date of institution of the suit.

The purpose of issuing a summons is to inform him and give him a fair opportunity to represent his side. This is based on the principle of natural justice which provides maxim ‘audi altrem partem’ which means hear both the parties.

Section 28 of CPC provides for service of Summons in another State, it prescribes delivery according to the rules of that State. The Court to which summons is sent shall act as if it had been issued by such Court. Sub-section 3 of Section 28 provides that the language of the summons. In States where Hindi is used, the summons should be in Hindi. In States other than Hindi or English, the language may be Hindi or English.

Section 29 of CPC provides service of foreign Summons. It may be sent to the Court in the territories to which this Code extends, and served as if they were summonses issued by such Courts.

Order 5 substantiates the process in detail by providing the process of issuing and service of summons. We will first discuss the process of issuing of summons then we will discuss service of summons.

Issue of Summons: Order V Rule 1 to 8

Rule 1 provides summons may be issued to the defendant to appear and answer the claim and to file the written statement of his defence within 30 days of delivery of the summons. When the defendant has appeared at the presentation of plaint and admitted the plaintiff’s claim, no summon needs to be issued.

A defendant may appear on issuance of summons:

1. In person, or
2. By a pleader duly instructed and able to answer all material questions relating to the suit, or
3. By a pleader accompanied by some person able to answer all such questions.

Mandates for issuance of summons

Sub-rule (3) to Rule 1 of Order V mandates that every such summons shall be signed by the judge or such officers as he appoints and shall be sealed with the seal of the Court.

Order V Rule 2 provides that every summon shall be accompanied by a copy of the plaint.

Appearance in person

Order V Rule 3 of CPC provides that court can seek personal appearance of the defendant.

Exempted from Personal Appearance

Order V Rule 4 provides that no person shall be ordered to appear in person unless in resides within the local limits of jurisdiction of the Court’s ordinary original jurisdiction, or without such limits, place less than fifty or two hundred miles (where railway, steamer or other public conveyance is available) distance from the courthouse.

There are other provisions in CPC that provide exemptions from personal appearance such as section 132 and 133 of CPC. Section 132 exempts certain women (such as Pardanashin Women) from personal appearance. Section 133 exempts other persons including the President of India, Vice President of India, Judges of the Supreme Court and High Court, Speaker of the House of People and State Legislative Assemblies, etc.

Contents of Summon: Order V rule 5 to 8

Order V Rule 5 provides that while issuing the summons the court may issue summons either for the settlement of issues only, or for the final disposal of the suit. The proviso states that every suit heard by Court of Small Causes, summons shall be for the final disposal of the suit.

Rule 6 provides that Court shall give sufficient time in the issued summon to enable defendant to appear and answer on such day.

Rule 7 provides that a defendant shall be ordered to present all documents which he intends to rely in support of his case.

Rule 8 provides that when the summons is for final disposal of a suit, the defendant shall be ordered to produce all the witnesses upon whose evidence he intends to rely in support of his case.

Service of Summons: Order 5 Rule 9 to 30

Delivery by Court: Rule 9

Order V Rule 9 CPC provides for delivery of summons by Court. It provides that where defendant resides within the jurisdiction of the Court, the summons can be served to defendant or one of his subordinates or to such courier services as approved by the Court. Sub-rule 3 to Rule 9 provides that summons can be made through registered post approved by High Court or by other means of transmissions as provided by rules of High Court (Including fax and E-Mails).

The acknowledgement of delivery and consideration of the fact that the summons had been duly served is provided in sub-rule 5 of Rule 9. It states that when the summons receipt is signed by the defendant or any other agent on his behalf or refuses to take delivery of summons, the Court shall declare summons as duly served. The proviso to the sub-rule provides that if the summons was properly addressed, pre-paid and duly sent by registered post even if it has been lost or mislaid or for any other reason has not been received by the defendant within 30 days from the date of issue of summons, it will be considered duly served.

Delivery by Plaintiff: Rule 9A

Plaintiff can also serve a copy of summons personally or other method prescribed in sub-rule 3 of rule 9 to the defendant with prior permit of Court. For any reason, if summons cannot be delivered by Plaintiff, Court shall reissue summons as provided in above rule.

Mode of Service: Rule 10

By delivering or tendering a copy thereof signed by the Judge or such an officer as he appoints in his behalf and sealed with the seal of the Court.

Service of summons

1. Multiple defendants: To each of them. (rule 11)
2. Personal or through agent: Personal or if agent is authorized, agent. (Rule 12)
3. Where defendant carries business: To manager of agent. (Rule 13)
4. Suits for immovable property: If service cannot be made to defendant personally, to agent authorized.
5. Adult member of family: To adult member of family where it cannot be delivered to defendant or agent.

Acknowledgement of Summons: Order V, Rule 16 to 19

1. Sign of person who receives copy of summons. (Rule 16)
2. Where defendant refuses or cannot be found, Summons to be affixed at Conspicuous part of the house where defendant originally resides or personally works for gain or carries on business. The report of affixation and signature of person(if any) who identified the house and in whose presence the copy was affixed. (Rule 17)
3. Serving officer in all cases under rule 16 shall endorse or annex a return stating the time and manner in which the summons was served. (Rule 18)
4. Examination of Service Officers can be done. The court can examine serving officer on affidavit the return summons under Rule 17, and shall either declare that the summons has been duly served or order such service as it thinks fit.

Substituted Service of Summons: Rule 20

Where Court has reason to believe that defendant is purposefully avoiding service of Summons. Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Courthouse and also upon some conspicuous part of the house in which the defendant is known to have last resided or carried on business or personally worked for gain.

Court can also while acting under sub-rule 1 of rule 20 can order service by an advertisement in 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.

The effect of substituted service is same as if it had been made on defendant personally.

Defendants reside in different jurisdiction, prison, foreign territory, etc.

1. When defendant resides in jurisdiction of another court: To any Court having jurisdiction where defendant resides through one of its officer or method provided by HC which includes by post, or other courier service approved by HC. (Rule 21).
2. Within presidency town by other Courts: To Court of Small Causes within whose jurisdiction it is to be served. (Rule 22).
3. Duty of Court to which summons is served: Proceed as it was served by such Court and return the summons to the Court of issue together with recording of proceedings. (Rule 23)
4. Defendant in prison: To officer in charge of prison by method approved by HC. (Rule 24)
5. Defendant resides outside India and has no agent: To the place where defendant is residing by such method approved by HC. In case of Pakistan and Bangladesh, Summons can also be sent to the Court having jurisdiction. (Rule 25)
6. Service in foreign territory through Political Agent or Court: To political agent or Court. They will serve it to the defendant and return endorsement that shall be deemed to evidence of service. (Rule 26)
7. Summon to foreign countries: To designated officer by Central Govt. They will serve it to the defendant and return endorsement that shall be deemed to evidence of service. (Rule 26-A)
8. Service on civil public officer: To the head of the office in which he is employed together with a copy to be retained by the defendant.
9. Service on soldiers, sailors or airmen: To commanding officer together with a copy to be retained by the defendant.
10. Duty of person under rule 24, 27 or 28: To obtain written acknowledgement and return it under his sign. When it is not served, reason has to be provided to the Court.

Substitution of letter for Summons: Rule 30

Court can also sent a letter in substitute of a summons, where, in the opinion of the Court, the defendant is of a rank entitling him to such mark of consideration. Such a letter shall contain all the particulars required in a summons. It can be sent to defendant by post or by special messenger selected by Court. Where agent is empowered to receive, he can receive such letter.

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written by Jeet Sinha