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An in-depth analysis of order 5 of the code of civil procedure, focusing on summons. It covers the objectives, essentials, and contents of summons, the process of serving summons to defendants, and various rules related to summons. It also discusses substituted service and service in special cases.
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By Sneha Mahawar - October 13, 2022 This article is written by Monesh Mehndiratta, a law student at Graphic Era Hill University, Dehradun. Order 5 of the Code of the Civil Procedure deals with summons that has to be issued within seven days of the institution of a plaint or suit. This article explains the essentials, objects, and mode of service of summons. It further provides various rules of summons. This article has been published by Sneha Mahawar.
Introduction “Hi. Could you please come here?” This is what I do when I have to call somebody. What do you do? Whenever we want to call someone to be present somewhere, we either call them in person or through another person, or we connect with them over a phone call. This is what every person does. But have you ever wondered, what a court does when it has to call a person in the court or make his/her presence. Obviously, it cannot make a phone call directly or go to that person. Then how does a person get to know that he has to be present in court on a so-and-so date? It’s definitely a good question to think about, isn’t it? Wait, you need not think much. The answer lies in the article itself. By the end of this article, you will be able to clear all your doubts. Well, whenever a court has to make sure of the presence of a witness or any other person involved in any case in any manner, it sends an official notice to that particular person. This official notice or document directs a person to be present in the court on a particular day before a judge is called a summon. The court sends this through a court officer or any other person entitled by the court to do so. Now, you may be wondering what is mentioned in that document. What are the requirements for a summons? What will happen if someone rejects or does not appear after a summons is served? Do not worry. All of these questions will be answered one by one in this article. The Code of Civil Procedure, 1908, gives a proper procedure related to summons. This article explains the meaning, objective, essentials, and modes of service of
It is important to inform a person about any legal action that has been taken against them. It gives an opportunity to the defendant to present his case and side of the story. The basis of summons lies in the maxim “ Audi Alteram Partem”, which means to hear both sides. It further helps in following the principles of natural justice and ensures fair proceedings and trial. 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. 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: Every summon must be signed by the judge or any other officer whom he appoints to do so on his behalf. It must be sealed properly. 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. 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. Another essential element of summons is that every summon must be accompanied by a copy of the plaint. 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:
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. 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. It also contains the list of necessary documents that a defendant is required to produce in court. 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.
Mode of service of summons This is one of the most fundamental and important rules of law that states that a party must be given a fair chance to represent himself, and this is only possible if he has been served with fair and reasonable notice of legal proceedings stating the legal action taken against him. This will also give him the opportunity to defend himself and present his case. One of the major causes of delay in justice or pendency in cases is the service of summons. The defendants or people to whom the summons are issued may avoid it or ignore it, which results in a delay in proceedings, leading to a delay in justice. The Law Commission and the makers of the law felt a need to make certain amendments with respect to the service of summons and their modes of service. The code gives several modes of service of summons, which are discussed below in detail. 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. 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. 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. 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. If a suit involves two or more defendants, then the summons must be issued to each of them. 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. 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. Substituted service Substituted service means a mode of service of summons that is adopted in place of ordinary service of summons. There are two modes of substituted service as given under Rules 17, 19 and 20 of the Order. These are:
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. 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. 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. 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. 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. If the defendant is a soldier, airman, or sailor, then the summons can be sent through their commanding officer. If the defendant is a convicted prisoner, then the summons can be served through the officer in charge of the prison. 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. 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. 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.
Refusal and objections to summons There are instances where a defendant refuses to accept the summons or accepts it but refuses to sign the acknowledgment or objects to the summons being issued. This leads to a delay in the proceedings of the suit. To deal with such situations, the code has provided certain safeguards. Refusal of summons According to Rule 9 of the Order, if the defendant refuses to accept the summons, it is deemed that the summons has been served on him. Similarly, when he or his agent refuses to sign the acknowledgement, the court will assume that he has refused to take delivery of the summons and treat such summons as duly served. This was also mentioned in the case of Puwada Venkateswara v. Chidamana Venkata (1976). Objection to service of summons In the case of Bheru lal v. Shanti lal (1984) , 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. Conclusion Order 5 of the Code of Civil Procedure, 1908 specifically deals with the issue and service of summons to the defendant. It provides various rules related to the issuance of summons and their modes of service. All of these have been discussed in detail in the article. It also provides the scenario as to what will happen if a person refuses the summons. The defendant has also been given the opportunity to raise the objections to the summons if any at the earliest or else it will be waived. But there are many instances where the defendants tend to avoid or ignore the summons. This further results in delays in court proceedings and the pendency of suit. The law makers and the courts must look into this issue in order to solve the problem of the pendency of cases in our country. Frequently Asked Questions (FAQs) What is the difference between Order 5 and Order 16 of the code? Order 5 of the Code particularly deals with the issuance of summons to defendants, while Order 16 deals with summons to witnesses.
