SUMMON AND MODES

Meaning

The word ‘summon’ has not been defined anywhere in the code. The definition of summons as
given by the Oxford dictionary states that, “a document which is issued from the court of justice
and calls upon a person to whom it is directed, to be present before a judge or court for a specific
reason is called a summon.” Issue and service of summons are given under Order 5 of the Code.

Order 5 of Civil Procedure is based on this principle that no one should be condemned unheard
when the suit is instituted against the defendant the court is bound to serve the summons to
defendant for appearing before the court. In fact, CPC provided procedural rules to aminister trial
of civil suit from its institution till its conclusion. After filing of suit, it becomes necessary for
that party, which files suit, to serve summon son opponent party. Order 5 prescribes various
modes of service of summons to defendant.

 Summons may be defined as under “A written notification issued by a civil court

requiring that one must appear before the court in prescribed manner”.

Relevant Provisions

The provision related to the summons is given in Section 27-32 and Order V of CPC.

There are two stages of summoning:

1. Issuance of Summon – Issuance of Summons means the issuance of summons by the

court. (O.V Rule 1 to 8)
2. Service of Summons -Service of Summons means delivery of summon to the defendant.
(O.V Rule 9 to 30)

Objective

1. It is important to inform a person about any legal action that has been taken against them.
2. It gives an opportunity to the defendant to present his case and side of the story.
3. The basis of summons lies in the maxim “Audi Alteram Partem”, which means to hear
both sides.
4. It further helps in following the principles of natural justice and ensures fair proceedings
and trial.
5. It helps in ensuring the presence of either a witness or accused or any other person who is
involved directly or indirectly in a suit before the court.
6. To produce the necessary documents.

Essentials of summons

The essentials of a summon are given under Order 5, Rules 1 and 2 of the code. These are:
 1. Every summon must be signed by the judge or any other officer whom he appoints to do
so on his behalf.
2. It must be sealed properly.
3. The court will not issue any summons to the defendant if he has appeared before the court
at the time of the institution of the plaint.
4. After summons are issued, the defendant is required to file written statements within 30
days. If he fails to do so, he has to provide reasons, and if the court is satisfied, it can
extend the time period to file written statements to not more than 90 days.
5. Another essential element of summons is that every summon must be accompanied by a
copy of the plaint.
6. The format of a summons must be according to the prescribed form given in Appendix B
of the First Schedule under the code.

Contents of summons

Rule 5 to Rule 8 of Order 5 under the code gives the content of summons. A summon must
contain:

1. Information, whether it is issued for settlement of issues or final disposal of the suit.
According to Rule 5, the court of small causes can only issue a summons for the final
disposal of a suit and nothing else.
2. It must contain the date and day fixed for the appearance of the defendant, considering
the factors like the residence of the defendant, time, etc., so that he can get a reasonable
time and opportunity to appear before the court.
3. It also contains the list of necessary documents that a defendant is required to produce in
court.
4. If the summons is issued for final disposal, it must direct the defendant to produce
witnesses on his behalf to support his side.

Summons to defendants

 According to Rule 1 of the Order, whenever a lawsuit is instituted by a plaintiff, the

defendant has to file a written statement within 30 days of the issuance of the summons to
him. If he fails to do so and furnishes an appropriate reason, the court, after
consideration, may extend the time up to 90 days. However, the court will not issue any
summons if the defendant was present at the time of the institution of the plaint and has
admitted the claim of the plaintiff.
 Section 27 of the Code further provides that a summons must be issued to the defendant
when the suit is instituted to appear before the court and answer the plaint in the form of
written statements.
 Section 28 mentions the condition where the summons issued to a defendant has to be
sent to a different state or jurisdiction where he resides. In such a situation, the court will
 send the summons to the court having jurisdiction in that particular area, and then the said
court will perform duties as if the summons had been issued by it. It will further return
the record of its proceedings to the court that originally issued the summons. If there is
any difference in language between the summons issued and the records, the records will
be translated into Hindi or English and then sent along with the summons.

Appearance of defendant

According to Rule 3, if summons has been issued to the defendant, he may appear before the
court in the following ways:

1. He may appear himself in person or,

2. Through his pleader, who will answer all the questions on his behalf or,
3. By a pleader along with another person to answer all the questions.
4. The court, however, has the power to call defendants at any time to appear personally
before the court if there are reasons to do so.

Exemption from appearance

The code provides certain provisions that mention the people who are exempted from appearance
in the court on the issuance of a summons and the necessary conditions. These are:

 Section 132 provides that any woman who cannot be compelled to appear in public due
to the customs and other manners followed, will not be asked to appear before the court.
This does not mean that she will not be arrested if required in civil proceedings. This will
only happen if the code provides for any such exemption provision.
 Section 133 further gives the list of particular people who are exempted from appearing
before the court personally. This includes:
1. The President of India
2. Vice-President
3. Speaker of house
4. Union Ministers
5. Supreme Court judges
6. Governors of states and union territories
7. Speakers of state legislative assemblies
8. Chairman of the state legislative council
9. States’ Ministers
10. High Court judges
11. Any other person on whom Section 87B is applicable.

According to Rule 4 of Order 5, a person will be exempt from appearing before the court if:

1. He does not reside within the local limits of the court’s jurisdiction or
 2. He lives in a place that is more than 50 miles or 200 miles away from the court.

MODES

1. Delivery of summoning by the court [Rule 9].

2. Service by plaintiff [Rule 9A]
3. Personal or Direct Service [Rule 10-16, 18]
4. Substituted Service [Rule 17, 19-20]
5. Service by Post.

1. Personal or direct service

 This mode of service of summons is simple. In this mode, a copy of the summons is
issued to the concerned person or his agent or any other person on his behalf, and the
person receiving the summons must acknowledge the same. It is the duty of the officer
serving summons to ensure and make an endorsement with regard to the summons served
that states the time and manner of service, the name and address of the person receiving
the summons, and witness to the delivery of the summons.
 Rules 10 to 16 and Rule 18 of the order deal with personal or direct service. While
serving summons through this mode, the following principles must be taken into
consideration:

The service officer must try to serve the summons to the defendant or his agent.

i. If the defendant is not present at his place of residence and there is no agent, then it must
be served on any adult male or female member of the family living with him on his
behalf.
ii. If a suit is related to the business or work of a person who does not reside within the
territorial jurisdiction of the court, then it may be served to the manager or agent of that
business or work.
iii. In the case of a suit on immovable property, if the defendant is not found, then the
summons may be served on any person or agent who is in charge of such property.
iv. If a suit involves two or more defendants, then the summons must be issued to each of
them.

2. Service by the court

 Rule 9 of the Order deals with the service of summons by court.
 It provides that if a defendant resides within the jurisdiction of the court, then the
summons must be served to him by the court officer. It can also be served by post, fax,
message, email service, approved courier service, etc.,
  But, if the defendant does not live within the jurisdiction, then it must be served by the
officer of the court within whose jurisdiction he resides.

In the case, summons are served by Registered post acknowledgment due (RPAD), the court will
assume the valid service of summons is complete even if there is no acknowledgement slip. If a
person refuses to accept it, the court may treat it as a valid service.

The Supreme Court, in the case of Salem Advocate Bar Association v. Union of India
(2005), directed the high courts to make appropriate rules or guidelines to ensure that the
provisions of summons are implemented properly without any abuse of power or process of law.

3. Service by plaintiff
 According to Rule 9A of the Order, the court may permit the plaintiff, on his application,
to serve summons to the defendants.
 He has to deliver the copy of the summons which is sealed and signed by the judge or any
other officer appointed by the judge to do so, and also make sure that the defendant
summons acknowledges the service.
 If the defendant refuses to acknowledge the service or if it cannot be served personally,
the court will re-issue the summons and serve it to the defendant.
4. Substituted service

Substituted service can be done in the following circumstances:

i. If the defendant or his agent refuses to sign the acknowledgement, or if the serving
officer is unable to locate the defendant after due diligence and there appears to be no
chance of finding him, the service of summons can be done by fixing a copy of the
summons on the outer door or some conspicuous (noticeable) part of the house in which
the defendant resides or carries on business or personally works for gain.
ii. Where the court is satisfied that the defendant is avoiding service of summons or the
summons cannot be served on the defendant in an ordinary way, the service may be
achieved either by affixing a copy of the summons in the conspicuous place in the
courthouse and also where the defendant last resided, carried on a business, or where he
personally worked for gain or in such manner as the court thinks fit.
In Basant Singh vs Roman Catholic Mission (2002), the court stated that one must
remember that this is not a regular mode of service. Hence it should not normally be
allowed and should only be used as the last resort.

5. Service by post
Under Rule 9, order 5 of the code, the service of summons can be also be made by following
methods:

i. By registered post;
ii. By speed post;
iii. By courier service;
iv. By fax message;
v. By electronic mail service.

When a summon is sent by registered post then the acknowledgement signed by the defendant or
his agent. It is sufficient service of summons. If the defendant refuses to take this, it is also
considered as sufficient service (Sameer Snigdha Chandra Vs Pranya Bhushna Chandra,
A.I.R. 1989, Orissa 185).

EXTRA:

Service of summons in special cases

Rules 21–30 provide the mode of service of summons in special cases.

i. If the defendant resides in another state or outside the jurisdiction of the court issuing the
summons, the court may send the summons to another court in whose jurisdiction the
defendant resides to serve it on him.
ii. According to Section 29 of the code, if any foreign summon has to be served, then it must
be sent to the court in the territories where the code applies, and they will further serve
the summons as if it had been issued by them.
iii. If the summons has to be served in presidency towns like Calcutta, Madras, and Bombay,
then it may be sent to the Small Causes Court of that particular jurisdiction.
iv. If the defendant does not live in India and has no agent then according to Rule 25, the
court can serve the summons by way of post, fax, email or any other appropriate means.
The other way of serving the summons to such sovereign country where the defendant
resides is either by a political agent or through the court of that country, which has
powers and authority to serve the summons as given under Rule 26 of the order.
v. If the defendant is a public officer, a railway officer, or a servant of the local authority,
then the summons can be served through the head of their departments.
vi. If the defendant is a soldier, airman, or sailor, then the summons can be sent through their
commanding officer.
vii. If the defendant is a convicted prisoner, then the summons can be served through the
officer in charge of the prison.
viii. In case, the defendant is a company or a corporation, the summons may be served to the
secretary, director, or principal officer of the company or through post to the address
where such company carries on its business or at its registered office.
ix. If the defendants are partners in a firm, then it must be served to any one of the partners,
but if the partnership has dissolved before the suit has been instituted, then every partner
must be served the summons.
x. The court issuing the summons also has the power to substitute it with a letter of request,
which will contain the same contents and information as the summons. This will be done
for any person depending upon the position or office held by such a person