|.C.F.A.1 UNIVERSITY Dehradun Topic — Service Of Summons Name. — Abhishek Raj Enno. 20FLICDDNO2116 Batch BALLB 4" year Subject — Civil procedure code Faculty name faculty sign Dr. Vivek Kumar sirACKNOWLEDGEMENT Any work requires the effort of many people and this is no different. First of all, | want to express my heartiest thank my teacher DR. VIVEK KUMAR 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. | 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 Needed and made my work as easy as possible. Regardless of anything, | wish to express my gratitude to those who may have contributed to this assignment, even through anonymously. Abhishek rajContents ACKNOWLEDGEMENT Service of summons Summons meaning, Object of issuing summons ... Appearance in Court against summona.n Essentials of summons : Rule 2 ‘Summons to defendant : section 27; order S rule 1 Exemption from appearance in person: Mode of service of summons: Rule 9-30 Personal or Direct service: Rule 10-16, 18. Service by court ; Rule 9 Substituted service: Rule 17, 19-20 Service by post Service of summons in special cases: Rule 21-30. Cancellation of decree: CONCLUSION . bibliography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 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,' “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 Kumar’, 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 remary. Similarly, ex parte decree against defendant has to be set aside, if he satisties 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 * Earl jowitt, the dictionary of English law (1972) at p.1700 2015 (5) ALT 346 (D.B.)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)’. 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) bya pleader duly instructed and able to answer all material questions relating to the suit, or 3) bya 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. 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 be issued by the court if, at the time of presentation of a pliant, the defendant is present and admits the plaintiff's claim, > Lectures on administrative law (2012)(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 () Who is a woman not appearing in public, or (c) Who is entitled to exemption under the code, () 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." *C.k Takwani, civil procedure, 8" edition, pg no, 245MODE OF SERVICE OF SUMMONS: RULE 9-30 The service of summons is of primary importance as itis 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. ° 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 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 nad others® when 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 = Salem advocate bar assn. v. uoi, (2005) ©2013 (5) ALT 417. M.S(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. In a suit for immovable property, if the serviee 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. Where there are two or more defendants, service of summons should be made on si defendant. In alll 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? 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 ? https://articlesonlaw.wordpress.com/2018/07/15/service-of-summons-in-civil-cases/(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 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 effected 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 refussed or if the person served refuses to sign an acknowledgement of service or for any reason stich 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’ 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 8 Supra 7, retrived at 7.40 pmserving officer shall then retum 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 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 effected 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 effected only as a last resort. Before more than a century ago, in Cohen v. Nursing Dass’, It was stated,” 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 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 effected 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. 8 (1872) 19cal 201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. Sueh service is an effective service, even if the defendant is not the subscriber of the newspaper or is nor reading Under rule 20, the service of summons is effected by the order of the court only after the court is satisfied that the defendant avoids serviee 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 effected 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 acaknowledgement is Jost 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 Basant Singh and Anr. Vs. Roman Catholic Mission,. It is settled law that once the letter is sent through registered post at correct address and AD card is reevived back bearing some signatures, the presumption is drawn about its service upon the addressee unless the same rebutted. It is held by Hon'ble High Court of Delhi in Smt, Bhavneshwari Devi Vs. Kalyan Singh," 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 * AIR 2002 SC 3557 #1993 (2) RCR (Rent) 330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 ete., 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, information technology and notices is not being properly used by all the courts in service of summons because the court system does not have the facility to effect 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- The Hon'ble Supreme Court of India, in Central Electricity Regulatory Commission Vs. National Hydroelectric Power Corporation Ltd”permitted the service of Notice by email along with the ordinary mode of serving notice. In Ksl and Industries Ltd., Vs Mannalal Khandelwal" 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 serviees including emails. Summons through e-mail is permitted in In Indian Bank Association & Ors vs Union Of India & Anr'*, Summons though Whatsapp:- In Tata Sons Limited & Ors vs John Does, 'SHis 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 4 (2010) 10 SCC 280] (2009) se 340 (2014) 5 SCC 590 8 CS(COMM) 1601/2016Refusal of summons Where the defendant refuuses 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.!° Objection as to service of summons 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 thas been held that there is distinetion 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.’ 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 Service of foreign summons may be effected 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 stich courts, 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. 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 28 puwada venkateswar v. chidamana venkata, 1976 scc 409 ™ Prabin ram phukan v. state of assam 2015 sce 605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. Where the defendant in the foreign country, the service of summons may be effected through the political agent there or a court established there with authority to serve summons. Where the defendant is a publie 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. Where the defendant is a soldier, sailor or airman, the court shall send the summons for service to his commanding officer. Where the defendant is in prison, the service of summons is to be made on the office in charge of the prison, Where the defendant is a corporation, the summons may be served on the secretary, or on any director or other principle 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 principle 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 ID)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 oceupied by the defendant. CANCELLATION OF DECREE P. Ramalaxmi Vs. Peetala Tatayya and others others — 2006 (1) ALT 79.1n 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 lai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 introdu 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 analoguous 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. | 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 electornie 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.BIBLIOGRAPHY Books:- 1) C.K Takwani, civil procedure, eastern book company, 8 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) wwwaarticlesonlaw.com