Order V

Issue and service of summons

Section 27 and Order V of the Code of Civil Procedure.

The summons will be issued to Defendants and witnesses.
 Is it always compulsory to issue summons to the defendants?
 Section 27 May be issued.
 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 manner
prescribed.

 Contents of a summons:
 Within five working days of institution of suit it will be issued by the officer
of court.
 Every such summons shall be signed by the Judge and shall be sealed with
the seal of the Court. (Rule 1)
 Shall be accompanied by a copy of the plaint (true copy) or, if so permitted,
by a concise statement.
 The summons shall state whether it shall be for the settlement of issues
only, or for the final disposal of the suit. (Rule 5);
 It shall order the defendant to produce all documents in his possession or
power and witnesses in support of his case. (Rule 7)
 Directions as to appearance of parties: [Rule 1(2)]
The party may appear
a) in person, or
b) by a pleader duly instructed and able to answer all material questions
relating to the suit, or
c) by a pleader accompanied by some person able to answer all such
questions.
d) Where the Court sees reason to require the personal appearance of the
defendant, the summons shall order him to appear in person in Court.

 Fixing day for appearance for defendant (Rule 6)

The day for the appearance of the defendant shall be fixed with
reference to the current business of the Court, the place of residence of the
defendant and the time necessary for the service of the summons; and for
sufficient time to enable him to appear and answer on such day.
 Penalty for noncompliance
No penalty for defendant because the suit will be proceeded ex parte but for
witnesses there are penalties like the court may
(a) issue a warrant for his arrest;
(b) attach and sell his property;
(c) impose a fine upon him not exceeding five hundred Taka;
(d) order him to furnish security for his appearance and in default commit
him to the civil prison.
 Modes of services
1. Personal:
Rules 10 to 16 and 18 deal with personal or direct service of summons upon
the defendant. This is an ordinary made of service of summons. Here the
following principle; must be remembered:
 Where it is practicable, the summons must be served to the defendant in
person or to his authorized agent (rule 12).
 Where there are more defendants that one, service of the summons shall
be made on each defendant (rule 11).
 Where the defendant is absent from his residence at the time of service of
summons may be served on any adult male member of the defendant’s
family residing with him (rule 15).
 Where the serving officer delivers or tenders a copy of the summons to the
defendant personally, he shall require the signature of the person to whom
the copy is so delivered or tendered to an acknowledgement of service
endorsed on the original summons.
2. Affixation:
Rule 17 specifies this method. When the defendant or his agent refuses
to accept personal service of summons, this method is to be used when the
defendant or his agent refuses to accept personal service, the serving officer
shall affix a copy of the summons to on the outer door or some other
conspicuous part of the house in which the defendant ordinarily resides or
carries on business or personally works for gain.
The serving officer must file a report to the Court stating that he affixed
the copy, the circumstances under which he did so, and the name and address
of the person (if any) who identified the residence and in whose presence the
copy was affixed. They're known as proforma/mokabela witnesses.
In case of affixation the serving officers shall be examined in the court
touching the proceedings of affixation.
Case: Shamsunnahar Vs. Salahudding
3. Post:
Rule 19B specifies that the court must also direct the summons to be served
via registered mail with acknowledgement due, in addition to and
simultaneously with the issue of summons through personal method and
affixation.
 But if the court considers that summons by post is not necessary, postal
summons will be ignored. But what will be the consequences of the
registered envelope?
When the issuing court receives a signed acknowledgement from the
defendant or the postal article containing the summons stating that the
defendant refused to accept the summons, the issuing court declares that the
summons was properly served on the defendant.
The declaration may be made despite the fact that the acknowledgement has
not been received by the court within thirty days of the summons being issued,
whether because it was lost or misplaced or for any other reason.
4. Substitute:
The Provision for substituted service is provided in Rule 20 specifies that;
Where the Court is satisfied that,
 When there is reason to believe that the defendant is keeping out of the
way for the purpose of avoiding service, or
 When for any other reason summons cannot be served in an ordinary way.
5. Any other mode
If summons is issued by an advertisement in a newspaper,
 The newspaper shall be a daily newspaper which has circulation in the
locality in which the defendant is last known to have actually and
voluntarily resided.
Apart from Newspaper other modes:
Interesting is that substitute summons will be considered as if it had been
made on the defendant personally.
 By other courts:
Summons may be sent to court for service to defendant if he resides
within the jurisdiction of that court excluding Supreme Court.
 Jail
By post or courier service or to jailor.
 Foreign country:
By post or courier service and in addition to by means of transmission of
documents through fax massage or electronic mail service by the plaintiff at his
own cost.
 Railway company or Local authority:
If it appears to it that the summons may be most conveniently so served,
send it for service on the defendant to the head of the office.
 Army, navy, air force:
the Court shall send the summons for service to his commanding officer.
 Liability of the receiver:
Shall be bound to serve it, if possible, and to return it under his
signature, with the written acknowledgement of the defendant, and such
signature shall be deemed to be evidence of service.
If not possible it shall be returned to the Court with a full statement of
such cause and of the steps taken to serve the service, and such statement
shall be deemed to be evidence of non-service.
 Letter:
The Court may substitute for a summons a letter signed by the Judge
where the defendant is, in the opinion of the Court, of a rank entitling him to
such mark of consideration. It shall be sent by special messenger or by post. If
any agent it shall be given to him.