UNIVERSITY INSTITUTE OF LEGAL STUDIES,

PANJAB UNIVERSITY

SERVICE OF SUMMONS
SUBJECT: CIVIL PROCEDURE CODE- I

SUBMITTED TO: SUBMITTED BY:

Dr. Karan Jawanda Himanshu Singla

B.A.LL.B (Hons)

7th Semester

Roll no: 117/19

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 ACKNOWLEDGEMENT

Any work requires the effort of many people and this is no different. First of all, I want to
express my heartiest thanks to my Prof. Dr. Karan Jawanda for firstly making me understand
the contents of my topic and then giving me a wonderful opportunity to present this topic in form
of an assignment. His support and teaching helped me a lot to complete this assignment.

I would also like to thank my friends who were always available to me for help and also helped
me collect data for my project through various sources. They also provided me with material I
needed and made my work as easy as possible.

Regardless of anything, I wish to express my gratitude to those who may have contributed to this
assignment, even through anonymously.

Himanshu Singla

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 Table of Contents

1. Service of summons .........................................................................................4

2. Summons meaning...........................................................................................4
3. Object of issuing summons..............................................................................5
4. Appearance in Court against summon .............................................................5
5. Essentials of summons : Rule 2 .......................................................................5
6. Summons to defendant : section 27; order 5 rule 1 .........................................5
7. Exemption from appearance in person: ...........................................................6
8. Mode of service of summons: Rule 9-30 ........................................................7
9. Personal or Direct service: Rule 10-16, 18......................................................7
10.Service by court : Rule 9 .................................................................................8
11.Substituted service: Rule 17, 19-20 .................................................................9
12.Service by post ...............................................................................................11
13.Service of summons in special cases: Rule 21-30 .........................................13
14.Cancellation of decree ...................................................................................14
15.Conclusion .....................................................................................................15
16.Bibliography ..................................................................................................16

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 SERVICE OF SUMMONS

Summons meaning
When the plaintiff files a suit, the defendant has to be informed that a 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”. No such summon shall
be issued when a defendant has appeared at the presentation of plaint and admitted the
plaintiff's claim.

Where the defendant fails to file the written statement within the said period of thirty days, he
shall be allowed to file the written statement on such other day, as may be specified by the
Court, for reasons to be recorded in writing and on payment of such costs as the Court deems
fit, but which shall not be later than one hundred twenty days from the date of service of
summons. On expiry of one hundred twenty days from the date of service of summons, the
defendant shall forfeit the right to file the written statement and the Court shall not allow the
written statement to be taken on record.

Though the said expression (summons) has not been defined in the code, according to the
dictionary meaning,1 “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.”

Maganti Krishna Durga v. Magantu Anil Kumar2, it was observed that where the husband
obtains a decree of divorce ex parte by practicing fraud, husband cannot take advantage of
section 15 of Hindu Marriage Act and remarry. Similarly, ex parte decree against defendant has
to be set aside, if he satisfies court that summons had not been duly served or he was prevented
by sufficient cause from appearing before court when suit was called on for hearing however,
court shall not set aside said ex parte decree on mere irregularity in service of summons or in a
case where defendant had notice of date of hearing and sufficient time to appear in court not
possible for court to allow said application in utter disregard of terms and conditions
incorporated in second proviso to rule 13 of order IX CPC

1 Earl jowitt, the dictionary of English law (1972) at p.1700.

2 2015 (5) ALT 346 (D.B.).

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 OBJECT OF ISSUING SUMMONS

When a suit is filed by the plaintiff against the defendant and a relief is claimed, the defendant
must be given an opportunity as to what he has to say against the prayer made by the plaintiff.
This is in consonance with the principle of natural justice as no one can be condemned unheard
(audi alteram partem)3. If the defendant is not served with the summons, a decree passed against
him will not bind him.

Appearance in Court against summon

Order (5) has provision that A defendant to whom a summons has been issued under sub-rule
(1) may appear-

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 the questions.

ESSENTIALS OF SUMMONS: RULE 2

Every summons shall be signed by the judge or such officer appointed by him and shall be sealed
with the seal of the court, and must be accompanied by a plaint.

(a) Form of summons

Every summons should in the forms prescribed in appendix B to the (first) schedule of the code.

Summons to defendant: section 27; order 5 rule 1

Order 5 deals with the summons to a defendant while order 16 deals with summons to witnesses.
When a suit has been duly filed by presentation to the plaint, the court must issue summons to
the defendant 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. No summons, however, will

3 Lectures on administrative law (2012).

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be issued by the court if, at the time of presentation of a pliant, the defendant is present and
admits the plaintiff’s claim.

(b) Appearance in person: Rule 3

A defendant to whom a summons has been issued, may appear (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. The court, however, may order
the defendant or plaintiff to appear in person.

Exemption from appearance in person:

Section 132-133; Rule 4

No party shall be ordered to appear in person:

(a) Unless he resides (a) within the local limits of the court’s ordinary original jurisdiction; or
(b) outside such limits, but at a place less than (i) 50 miles; or (ii) 200 miles (where public
conveyance is available) from the courthouse, or
(b) Who is a woman not appearing in public, or
(c) Who is entitled to exemption under the code.

(c) Contents of summons: Rule 5-8

The summons must contain a direction whether the date fixed is for settlement of issues only or
for final disposal of the suit. In the latter case, the defendant should be directed to produce his
witnesses. The court must give sufficient time to the defendant to enable him to appear and
answer the claim of the plaintiff on the day fixed. The summons should also contain an order to
the defendant to produce all documents or copies thereof in his possession or power upon which
he intends to rely on in support of his case.4

4 C.K Takwani, Civil Procedure, 8th edition, pg no. 245.

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 MODE OF SERVICE OF SUMMONS: RULE 9-30

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. 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 code in 1976, 1999, and
2002. 5

The code prescribes five principal modes of serving a summons to a defendant:

Personal or Direct service: Rule 10-16, 18

Rules 10 to 16 and 18 deal with personal or direct service of summons upon the defendant. This
is an ordinary mode of service of summons. Here the following principles must be remembered:

(i) Wherever it is practicable, the summons must be served to the defendant in person or
to his authorized agent.
(ii) Where the defendant is absent from his residence at the time of service of summons
and there is no likelihood of him being found at his residence within a reasonable
time and he has no authorized agent, the summons may be served on any adult male
or female member of the defendant’s family residing with him.
A servant, however, cannot be said to be a family member.
N. Hanmanth Reddy v. Smt. Razia Begum and others,6when adult female members
of defendants refused to receive suit summons, a conclusion can be drawn that
summons are served on defendants in view of order 5 rule 15, CPC.
(iii) In a suit relating to any business or work against a person, 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.

5 Salem advocate bar assn. v. UOI, (2005).

6 2013 (5) ALT 417. M.S

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 (iv) In a suit for immovable property, if the service of summons cannot be made on the
defendant personally and the defendant has no authorized agent, the service may be
made on any agent of the defendant in charge of the property.
(v) Where there are two or more defendants, service of summons should be made on such
defendant.

In all the above cases, service of summons should be made by delivering or tendering a copy
thereof. Where the serving officer delivers or tenders a copy a summons to the defendants
personally or to his agent or other person on his behalf, the person to whom the copy is delivered
or tendered must make an acknowledgement of service of summons. The serving officer,
thereafter, must make an endorsement on the original summons stating the time and manner of
service thereof and the name and address of the person, if any, identifying the person served and
witnessing the delivery or tender of summons.

Service by court: Rule 9

Summons to defendant residing within the jurisdiction of the court shall be served through court
officer or approved courier service. Summons can also be served by registered post, speed post,
acknowledgement due, courier service, fax, massage, e-mail service or by any other permissible
means transmission. Where the defendant is residing outside the jurisdiction of the court, the
summons shall be served through an officer of the court within whose jurisdiction the defendant
resides. The court shall treat refusal of acceptance as a valid service. Where summons is properly
addressed, prepaid and duly sent by registered post acknowledgment due there will be a
presumption of valid service of summons even in the absence of an acknowledgement slip.7

Though there can be no objection in giving an opportunity to the plaintiff to serve summons on
the defendant, there should be sufficient safeguards to avoid false report of service of summons.
High courts should make appropriate rules or issue practice directions to ensure that the
provisions are properly implemented and there is no abuse of process of law.

(1) Can Plaintiff serve summons to Defendant

Order V Rule 9-A has provision of Summons given to the plaintiff for services. (1) The court
may, in addition to the service of summons under rule 9, on the application of the plaintiff for

7 https://articlesonlaw.wordpress.com/2018/07/15/service-of-summons-in-civil-cases/.

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 the issue of a summons for the appearance of the defendant, permit such plaintiff to effect
service of such summons on such defendant and shall, in such a case, deliver the summons to
such plaintiff for service.

As per Rule 9-A (2) the service of such summons shall be affected by or on behalf of such
plaintiff by delivering or tendering to the defendant personally a copy thereof signed by the
judge or such officer of the Court as he may appoint in this behalf and sealed with the seal of
the Court or by such mode of service as is referred to in sub-rule (3) of rule 9.

As per Rule 9-A (3) the provisions of rule 16 and 18 shall apply to a summons personally
served under this rule as if the person effecting service, were a serving officer.

As per Rule 9-A (4) If such summons, when tendered, is refused or if the person served
refuses to sign an acknowledgement of service or for any reason such summons cannot be
served personally, the Court shall, on the application of the party, re-issue such summons to
be served by the Court in the same manner as a summons to a defendant.8

Substituted service: Rule 17, 19-20

“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. They are:

(a) (i) where the defendant or his agent refuses to sign the acknowledgement; or (ii) where
the serving officer, after due and reasonable diligence, cannot find the defendant who is
absent from his residence at the time of service of summons and there is no likelihood of
him being found at his residence within a reasonable time and there is no authorized
agent nor any other person on whom service can be made, the service of summons can be
made by affixing a copy on the outer door or some other conspicuous part of the house in
which the defendant resides or carries on business or personally works for gain. The
serving officer shall then return the original to the court from which it was issued with a
report endorsed thereon stating the fact about affixing the copy, the circumstances under
which he did so, and the name and address of the person, if any, by whom the house was
identified and in whose presence the copy was affixed. If the court is satisfied, either in
8 Supra 7, retrived at 7.40 pm.

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 the affidavit of the serving officer or on his examination on oath, that the summons has
been duly served, it may either declare that the summons has been duly served or may

Thus, in the second mode of service of summons as provided by rule 17, the service is effected
without an order of the court by affixing a copy of the summons on the house of the defendant
and therefore the declaration by the court about the due service of the summons is essential. If
the provisions of rule 19 have not been complied with, the service of summons cannot be said to
be in accordance with law.

(b) Where the court is satisfied that there is reason to believe that the defendant avoid service
or for any other reason the summons cannot be served in the ordinary way, the service
may be affected in the following manner:

(1) By affixing a copy of the summons in some conspicuous part in the counterhouse; and
resided, carried on business or personally worked for gain: or
(2) In such manner as the court thinks fit.

It, however, must be remembered that this not a regular mode of service and hence, it should not
normally be allowed and can be affected only as a last resort.

Before more than a century ago, in Cohen v. Nursing Dass9, It was stated that “it is true that you
may go to a man’s house and not find him, but that is not attempting to find him. You should go
to his house, make inquiries and, if necessary, follow him. You should do inquiries to find out
when he is likely to be at home, and go to the house at a time when he could be found. Before
service like this can be affected it must be shown that proper efforts have been made to find out
when and where the defendant is likely to be found- not as seens to be done in this country, to go
to his summons on the outer door of his house.”

Where the court orders service by an advertisement in a newspaper, the newspaper should be a
daily newspaper circulating in the locality in which the defendant is last known to have actually
or voluntarily resided, carried on business or personally worked for gain. Such service is an
effective service, even if the defendant is not the subscriber of the newspaper or is nor reading it.

9 (1872) 19 Cal 201.

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Under rule 20, the service of summons is affected by the order of the court only after the court is
satisfied that the defendant avoids service of summons or it cannot be served in the ordinary way.
Such satisfaction must be recorded by the court in writing. Substituted service is as affected as
personal service. The court must fix a time for the appearance of the defendant and give him a
reasonable time to appear before the court.

Service by post
When an acknowledgment purporting to be signed by the defendant or his agent is received by
the court, or the defendant or his agent refused to take delivery of summons when tendered to
him, the court issuing the summons shall declare that the summons had been duly served on the
defendant. The same principle applies in a case where the summons was properly addressed,
prepaid and duly sent by registered post, acknowledgement due, and the acknowledgement is lost
or not received by the court within thirty days from the date of issue of the summons. Where the
summons sent by registered post is returned with an endorsement “refused”, the burden is on the
defendant to prove that the endorsement is false.

In Basant Singh and Anr. v. Roman Catholic Mission,10 it was held that, it is settled law that
once the letter is sent through registered post at correct address and AD card is received back
bearing some signatures, the presumption is drawn about its service upon the addressee unless
the same is rebutted. It is held by Hon’ble High Court of Delhi in Smt. Bhavneshwari Devi v.
Kalyan Singh,11 that presumption of service arises in law if the acknowledgement card of
registered post is received back bearing signatures of someone.

Need of making rules and regulations for service of summons and notices through electronic
means: - In this computer era, usage of mobiles and computers has been increasing day by day.
So many Apps are being introduced day by day and social media is now become more powerful
tool even for common people. Within fraction of seconds, messages are being communicated
among the people because of recent computer technology. Sending messages by E-mail,
WhatsApp, Telegram, Slack etc., became easy task to all age groups. The concept of E-courts has
been praying vital role in judiciary and is making efforts for computerization of all courts in
India. Now, the Hon’ble Supreme Court expanded the scope of electronic media in judiciary. But

10 AIR 2002 SC 3557.

11 1993 (2) RCR (Rent) 330.

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information technology and notices are not being properly used by all the courts in service of
summons because the court system does not have the facility to affect the service through
electronic mode. Provisions under Part X of the Code of Civil Procedure, 1908 (5 of 1908) and
Order V, Rule 9 of the Code of Civil Procedure, 1908 enables the High Court to make rule and
regulations in this regard. The Delhi High Court has also made rules regarding the service of
legal notices through email by the virtue of above legal provisions and other provisions which
enables it in this regard.

Summons/Notices through E-mail: - The Hon’ble Supreme Court of India, in Central

Electricity Regulatory Commission v. National Hydroelectric Power Corporation Ltd,12
permitted the service of Notice by email along with the ordinary mode of serving notice. In Ksl
and Industries Ltd., v. Mannalal Khandelwal,13 and the State of Maharashtra, (Criminal Writ
Petition No. 1228 of 2004), The Hon’ble Mumbai High Court held that to avoid the delay in
legal proceedings because of unserved summons must be interrupted by using all the practical
methods and services including emails. Summons through e-mail is permitted in In Indian Bank
Association & Ors v. Union of India & Anr14.

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Summons though WhatsApp: - In Tata Sons Limited & Ors v. John Does, His Lordship
Justice Rajiv Sahai Endlaw of the Hon’ble Delhi High Court permitted the right to serve
summons to the defendant via WhatsApp texts as well as by emails to a defendant.

Refusal of summons

Where the defendant refuses to accept summons, he is deemed to have been served. Similarly,
where an acknowledgement or receipt purported to have been signed by the defendant (or his
agent) is received by the court that the defendant (or his agent) has refused to take the delivery of
summons, the court will proceed treating the defendant as served.16

Objection as to service of summons

12 (2010) 10 SCC 280.
13 (2009) SCC 340.
14 (2014) 5 SCC 590.
15 CS(COMM) 1601/2016.
16 Puwada venkateswar v. chidamana venkata, 1976 SCC 409.

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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.

It has been held that there is distinction between non-service of notice and procedural irregularity
in service of notice. In the case of former category of cases, all consequential actions would be
rendered bad in law whereas in the case of latter category of cases, consequential actions would
be sustained unless he is able to show substantial prejudice due to procedural lapse in making
service to him. It depends upon the facts of each case whether procedural lapse complained of
has caused prejudice to the applicant.17

SERVICE OF SUMMONS IN SPECIAL CASES: RULE 21-30

1) Where the defendant resides within the jurisdiction of another court or in another state,
the summons may be sent to the courts where he resides, such courts will serve summons
on the defendant.
2) Service of foreign summons may be affected 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.
3) Where the summons is to be served within the presidency towns of Bombay, Madras,
Calcutta, it may be sent to the court of small causes within whose jurisdiction it is to be
served.
4) Where the defendant resides out of India and has no authorized agent in India to accept
service, the summons should be addressed to the defendant at the place where he is
residing and sent to him by post, or courier service, or fax message, or electronic mail
service, or by any other appropriate means, if there is postal communications between
such place and the place where the court is situate.
5) Where the defendant in the foreign country, the service of summons may be affected
through the political agent there or a court established there with authority to serve
summons.
6) Where the defendant is a public officer (not belonging to the Indian military, naval, or air
forces) or is a servant of the railway company or local authority, the summons may be
served through the head of the department in which the defendant is employed.
17 Prabin Ram Phukan v. State of Assam, 2015 SCC 605.

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 7) Where the defendant is a soldier, sailor or airman, the court shall send the summons for
service to his commanding officer.
8) Where the defendant is in prison, the service of summons is to be made on the office in
charge of the prison.
9) Where the defendant is a corporation, the summons may be served on the secretary, or on
any director or other principal officer to the corporation; or by leaving it or sending it by
post addressed to the corporation at the registered office or if there is no registered office,
then at the place where the corporation carries on business.
10) Where the defendants are partners in any firm, the summoned should be served upon any
one or more of the partners; or upon any person having the control or management of the
partnership business at its principal place of business in India. But if the plaintiff knows
that the partnership firm has been dissolved before the institution of the suit, the
summons shall be served upon every person sought to be held liable in India.
11) A court may substitute for a summons, a latter of request which may contain all
particulars required to be stated in the summons. This step may be taken by the court
keeping the view the office held or position occupied by the defendant.

CANCELLATION OF DECREE: -
P. Ramalaxmi v. Peetala Tatayya and others, 18 it was held that in a suit for cancellation of ex
parte decree, plaintiff has to prove not only non-service of suit summons on him but also the
falsity of suit claim.

18 2006 (1) ALT 79.

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 CONCLUSION

Strict compliance of the procedure under Order V of CPC is one remedies for proper service
of summons. Order V, Rule 19-A CPC is introduced in order to avoid delay in actual service,
the service of summons, through registered A.D. post was inserted. Sub-rule (2) of Rule 19-A
is analogous to Section 27 of the General Clauses Act, 1897. The proof that a letter has been
posted is usually evidence of its delivery under section 16 of the Evidence Act. I conclude the
project with a suggestion that inasmuch as information technology is increasing day by day,
it is time to enact the new legislation and to frame detailed rules for service of summons,
notice, documents through electronic mode and that the training classes for the process
servers must be organized to understand the law and that they also must electronically log
their attempts to serve papers using some kind of GPS device, and keep those records in a
database for at least ten years.

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 BIBLIOGRAPHY

Books: -

1) C.K Takwani, civil procedure, eastern book company, 8th edition, 2018
2) MULLA, The code of civil procedure, LexisNexis, 2015

Bare acts: -

1) The code of civil procedure, 1908

2) Indian evidence Act, 1872

Sites: -

1) www.indiankanoon.com
2) www.lexinexis.com
3) www.articlesonlaw.com

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