ISSUE AND SERVICE OF SUMMONS

INTRODUCTION

After the plaint is filed, the summon is issued by the court to appear in the court to defend it. The
intimation which is sent to the other party (defendant) is called summons. The provision related to
summons are given in Section 27-32 and Order V of the Code of Civil Procedure (“CPC”).

SUMMONS

Summons is an authoritative call from the court to attend the court at a specified place and at a
specified time. The summons as contemplated in Rule 1 is for the attendance of the defendant. It says
that once a plaint is admitted the court is required to send the notice of such admission to the
defendant and then for the purpose of his appearance and to answer (reply) the allegations made
against him in the plaint.

A summons must contain:

SECTIONS 27-32 of CPC – SUMMONS AND DISCOVERY

Section 27: Summons to Defendants

Section 27 of CPC stipulates that where a suit has been duly instituted by filing a plaint, the first duty
of the court is to issue summons calling on the defendant to appear and answer the claim and such
summons may be served in a manner prescribed in the rules mentioned in Order V of the First
Schedule of CPC and on such day not beyond 30 days from the date of the institution of the suit.

Section 28: Service of summons where defendant resides in another state

Section 28 of CPC provides for a situation when the summons is to be sent to a defendant who is
residing in a different state and also provides for the requirement to such process thereon. It simply
says that the summons to be served in another state must be sent for service through the court of that
state and it will so be served according to the rules in force in the state in which it is sent to. The court
to which it is sent must serve it as it is issued by that court and return it to the court issuing it along
with the proceedings therein.

Section 29: Service of foreign summonses

Section 29 provides for the situation when any of the following courts:

1. Civil or Revenue court to which Civil Procedure Code does not apply.
 2. Civil or Revenue court established by the authority of Central Government outside India.
3. Civil or Revenue court outside India to which this section would apply.

has issued certain summons and is intended to be served in the territory to which Civil Procedure
Code applies. It provides that it may be sent to the courts to which Civil Procedure Code applies and
may be severed by them as if it was issued by such courts.

Section 30: Power to order discovery and the like

Under Section 30 of the Code of Civil Procedure, the Court may at any time either of its own motion
or on the application of any party, issue summons to persons, whose attendance is required, either to
give evidence or to produce documents subject to such conditions and limitations as may be
prescribed. Order 16 makes provisions for summoning and attendance of witnesses [Satnam Transport
Company v. Prakash Mal Surana (AIR 1981 RAJ 75)].

Section 31: Summons to witness

Section 31 provides that if a summon is to be sent to any person for the purpose of giving evidence or
to produce documents or other material objects, then such summons must be sent as according to
Sections 27, 28, 29.

Section 31 of Code of Civil Procedure and Orders 13 and 16 are the available procedure for issuance
of summons to a witness to give evidence or to produce documents and/or for other relevant material
{Rasiklal Ratilal v. Fancy Corporation Ltd [2007(4) ArbLR173 (Bom)]}.

Section 32: Penalty for default

For the purposes of Section 30, the Court may compel the attendance of any person to: -

1. Issue warrant for his arrest

ISSUE AND SERVICE OF SUMMONS (Order V)

Order V has been divided into two parts, viz. ‘Issue of Summons’ and ‘Service of Summons’.

ISSUE OF SUMMONS

Summons may be issued by a court, and may order the recipient of the notice to appear in person,
with the particulars mentioned in the summons (Rule 3) along with a copy of plaint annexed to it
(Rule 2).
No party to be ordered to appear in person unless resident within local limits. Rule 4 states that no
party will be ordered to appear personally unless: -
 1. He resides within local limits of courts’ jurisdiction.
2. Where he resides within 50 miles from the court-house, or
3. Beyond such jurisdiction but within 200 miles from the court and where 5/6th distance can be
covered by Railways or steamers or other public conveyance.
The summons issued shall be either to settle the issues or for the final disposal (Rule 5) and the date
of appearance of the defendant shall be fixed after considering the following factors mentioned as
follows (Rule 6): -
1. The current business of the court
2. The place of residence of the defendant
3. Time necessary for service of summons
4. Sufficient time to enable defendant to prepare his defence
On issue of summons to the defendant, it may order to produce the documents or copies thereof which
the defendant may rely upon to prove his contentions (Rule 7) and in case of issue of summons for
final disposal, the defendant may be directed to produce his witnesses as well (Rule 8).
SERVICE OF SUMMONS
Summons must be served to the defendant or his agent, being a resident within the jurisdiction of the
court and such summons shall be served either by officer of the court or bailiff or by such courier
services as are approved by the court (Rule 9). The person to whom the summon has been serviced
shall sign the acknowledgement for the same on the original summons (Rule 16) and the serving
officer of the court shall state the time, manner, name and address of the person identified for the
summons (Rule 18).
The service of summons may be made by delivering or transmitting a copy to the defendant or his
duly authorised agent by [Rule 9(3)]: -
1. Registered Post acknowledgement due, or
2. Speed Post or courier service approved by the High Court or the District Court, or
3. Any other means of transmission like fax message or electronic mail service, etc.
The service of summons shall be made on the expenses of the plaintiff. In the following cases the
court may declare deemed service of summons: -
1. The refusal or non-acceptance by the defendant,
2. Where the summons was properly addressed, prepared and duly sent by registered post or
acknowledgement due and not received by the court within 30 days from the date of issue of
summons.
Important rules to note regarding the service of summons: -
1. Summons may be given through the plaintiff for service to the defendant and such summons
are known as Dasti summons (Rule 9A).
2. Summons in case of several defendants, summons shall be made on each one of them (Rule
11).
3. Summons may be served on the defendant himself or on his agent (Rule 12).
4. Summons may be served on the agent by whom, the defendant carries on its business (Rule
13)
5. Summons in case of suits involving immovable may be serviced upon the agent who is in in
charge of the property (Rule 14).
6. Summons may be served on an adult member of the family in cases where summons cannot
be served to the defendant or the agent for a reasonable time (Rule 15).
Substituted Service
Substituted service means the service of summons by a mode which is substituted for the ordinary
mode of service of summons.
There are two modes of substituted service of summons:
1. Service without the order of the court
2. Service with the order of the court
Service without the order of the court- Order V Rule 17 lays down following circumstance when
substituted service can be made on the defendant without the order of the court:
1. Refusal of acknowledgement
2. Absence of defendant
Order V Rule 20 provides the mode of service of summons with the order of the court. If the court is
satisfied that there is reason to believe that defendant avoids service or for any other reasons, the
summons cannot be served in the ordinary way, in such case, the service may be affected in the
following manner:
1. By affixing a copy of summons in a conspicuous place in the court house, and in the house in
which the defendant is known to have last resided, carried on business or personally worked
for gain, or
2. In such other manner as it thinks fit
The court may order service of summon by advertisement in a daily newspaper circulating in the
locality in which the defendant is last known to have resided or carried on business or personally
worked for gain (Rule 20A).

CASES
Bheru Lal v. Shanti Lal (A.I.R. 1985 Raj 53, 1984 WLN 9)
The court held that if there are any objections to the summons served, they must be raised as soon as
possible and at the earliest. If it is not done at that stage, then the court assumes that the defendant has
waived off this opportunity.
Salem Advocate Bar Association v. Union of India [Writ Petition (civil) 496 of 2002]
The Court decided that the laws stated under Rule 9 of Order V may be misused and hence, the courts
are required 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.
Shanmukhi v. Venkatarami Reddy (A.I.R. 1957 A.P. 1)
Substituted service would be proper service only if all the conditions mentioned under Order V Rule
20 are complied with. Thus, it would be open to the defendant to prove that he, in fact, never avoided
service and the notice of the claim was not brought to his knowledge.
Satish Corporation Company v. Allahabad Bank (A.I.R. 1999 MP 21)
It was observed that while passing order under Order V Rule 20 the court is required to record its
satisfaction that there were reasons to believe that the defendant was keeping out of the way for the
purpose of avoiding service or in the alternative it is required to record its satisfaction that for any
other reasons the summons could not be served in the ordinary way.
Sunil Poddar v. Union Bank of India [Appeal (civil) 86 of 2008]
The Court held that where summons was served by newspaper publication, then the plea that the
person sought to be served does not read such newspaper is not sustainable. It is immaterial whether
the defendants were subscribers of the said newspaper and whether they were reading it.
Basant Singh and another v. Roman Catholic Mission [Appeal (civil) 6489 of 2002]
It was held that its publication made by plaintiff in a newspaper other than the one ordered by Court.
However, both the said papers are local dailies having wide circulation in the area. Such a publication
in the circumstances of the case is a mere irregularity in service of summons. It would not invalidate
the effect of substituted service.