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Dr. Ram Manohar Lohiya National Law University, Lucknow

Summons : An Initiate Stage of Civil Suits

SUBMITTED TO: SUBMITTED BY:

Dr. Vipul Vinod Niharika

Assistant professor (law) 210101091

Dr. Ram Manohar Lohiya National Law University 2nd Year, 4th semester

Lucknow Section A

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ACKNOWLEDGEMENT

I would like to express my deepest gratitude and respect to my civil procedure code (law)
professor Dr. Vipul Vinod , who gave me the opportunity to do this interesting project on the
topic “Summons: An ” which helped me in exploring and researching on the topic in great
depth and enriched my knowledge on the same. I hope to be able to provide a project which is
well researched and enriching for the readers and justifies the opportunity given to me. I also
thank my friends who provided their continuous insights for improving my project and
encouraged me to complete the project within the given time frame.

Thanking you,

Regards

Niharika

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INDEX

• INTRODUCTION……………………………………………………………………4
• MEANING OF SUMMONS…………………………………………………………5
• OBJECTIVE OF ISSUING SUMMONS…………………………………………….5
• ESSENTIALS OF ISSUING SUMMONS…………………………………………...6
• SUMMONS TO DEFENDANT………………………………………………………7
• CONTENTS OF SUMMONS…………………………………………………………9
• MODE OF SERVICE OF SUMMONS………………………………………………..9
• REFUSAL OF SUMMONS………………………………………………………….12
• OBJECTION TO SERVICE OF SUMMONS………………………………………..12
• SERVICE OF SUMMONS IN SPECIAL CASES……………………………………13
• CONCLUSION………………………………………………………………………14
• BIBLOGRAPHY…………………………………………………………………….14

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INTRODUCTION

A civil suit is one that alleges violations of civil law by one or more persons. Civil litigation
comes up when one person wrongs another person. Both the persons here are referred to as the
parties or litigants. Civil litigation pertains to settling disputes that are not criminal in nature.
Civil litigation is governed by the Code of Civil Procedure, 1908.

Additionally, legislations like the Indian Contract Act, 1872, The Trademarks Act, 1999, The
Transfer of Property Act, 1882, etc. also regulate civil law in India. In short, civil litigation is
a culmination of various acts and rules that aims to render remedies for issues that are of civil
or commercial nature. Civil litigation focuses on the settling of damages or compensating the
party that was affected and not on inflicting punishment or levying penalties as in the case of
criminal litigation. However, there are offences that have both civil and criminal remedies
guaranteed by the respective legislations.

Once a suit of civil nature has been instituted, the next step and a significant one is the issuing
of a summons. It is only after issuing of summons that the witnesses appear and the statements
are recorded and the case goes on. It constitutes an important element for the successful
delivery of a fair and just judgment. Summons are important to be issued accurately. If the
summons is issued and not served properly then there lies no action against the defendant.
However, if the defendant receives the summons and they have been served to him/her and still
they don’t appear in the court, then the court can ex parte them.

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MEANING OF SUMMONS
When the plaintiff files a suit, the defendant has to be informed that the 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".

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."

Section 27 mentions that once the case is instituted, within 30 days of the same, the summons
is given out to the defendant asking them to appear. This summons can be issued in a manner
that is prescribed. The summons might be sent for administration to another State too and in a
way recommended or mentioned in the guidelines in power in the specific State.

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. The following are the objectives of summons:

• 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.

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ESSENTIALS OF ISSUING SUMMONS: Rule 1-2

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. It is the duty of the
court to send a copy of the plaint and other documents appended thereto so that the defendant
may be able to file a written statement. 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.

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SUMMONS TO DEFENDANT: Section 27, Order 5 Rule 1

According to Rule 1 of the Order 5 , 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.

a) APPERANCE IN PERSON
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.

b) EXEMPTION FROM APPERANCE IN PERSON: Section132-133, Rule 4

The code provides certain provisions that mention the people who are exempted from
appearance in the court on the issuance of a summons and the necessary conditions. These
are:

• Section 132 provides that any woman who cannot be compelled to appear in public
due to the customs and other manners followed, will not be asked to appear before

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the court. This does not mean that she will not be arrested if required in civil
proceedings. This will only happen if the code provides for any such exemption
provision.

• Section 133 further gives the list of particular people who are exempted from
appearing before the court personally. This includes:

o The President of India

o Vice-President

o Speaker of house

o Union Ministers

o Supreme Court judges

o Governors of states and union territories

o Speakers of state legislative assemblies

o Chairman of the state legislative council

o States’ Ministers

o High Court judges

o Any other person on whom Section 87B is applicable.

• According to Rule 4 of Order 5, a person will be exempt from appearing before the
court if:

o He does not reside within the local limits of the court’s jurisdiction or

o He lives in a place that is more than 50 miles or 200 miles away from the
court.

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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 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.

MODE OF SERVICE OF SUMMONS: Rule 9-30

The service of summons is of primary importance as it is a fundamental rule of the 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 principle modes of serving a summon to a defendant:

(1) Personal or direct service: Rules 10-16, 18

(i) Wherever it is practicable, the summons must be served to the defendant in person
or to his authorised 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 authorised 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.)
(iii) In a suit for immovable property, if the service of summon cannot be made on the
defendant personally and the defendant has no authorised agent, the service may be
made on any agent of the defendant in charge of the property.
(iv) Where there are two or more defendants, service of summons should be made on
each defendant.

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(v) 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 of work.

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 of summons to the defendant
personally or to his agent or other person on his behalf, the person to whom the copy is
delivered or tendered must make an acknowledgment 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.

(2) 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, acknowledgment due (RPAD), courier service, fax, message, e-mail service or by any
other permissible means of 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 (RPAD) 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. 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.

(3) Service by plaintiff: Rule 9-A

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

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acknowledge the service or if it cannot be served personally, the court will re-issue the
summons and serve it to the defendant.

(4) Substituted service: Rules 17, 19-20

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 or his agent refuses to acknowledge or sign the receipt of the summons,
or if the officer serving the summons reasonably believes that the defendant is not
present at his residence and will not be found within a reasonable time, and moreover
if there is no agent to receive summons on his behalf, he may affix the copy of the
summons on the door or any conspicuous part of his house.

o In this case, the serving officer has to make a report stating the reasons for
affixing the summons, the circumstances, the name and address of the person
who helped him and the witnesses to affixing the summons.

o The court can declare that the summons has been issued if it is satisfied with
the report of the officer.

• If the defendant is deliberately avoiding service and the court has a reason to believe
so, it may affix the summons in some conspicuous place in the court and house of the
defendant where he used to reside, carry on business or work for somebody.

In the case of Yalllawwa v. Shantavva (1997)1, the Supreme Court held that this mode of service
of summons is not an ordinary mode and must not be used normally. It must only be used in
exceptional cases and treated as the last option.

According to Rule 20, if a court orders to advertise the summons in the newspaper, then it must
be done in a local newspaper where the defendant lived, had a business, or worked. This service
is an effective option to serve summons even if the defendant is not reading the newspaper
(Sunil Poddar v. Union Bank of India, 2008)2.

Before issuing the summons through this mode of service, the court must give the defendant a
reasonable time to appear before the court. In another case, State of Jammu and Kashmir v.

1
Yalllawwa v. Shantavva (1997) AIR 1997 SC 35
2
Sunil Poddar & Ors. v. Union Bank of India [(2008) 2 SCC 326]

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Haji Wali Mohammad (1972)3, the Supreme Court held that if a summon does not fulfil the
requirements of Rule 19 of Order 5 under the Code, then such service of summons is not in
accordance with the law.

(5) 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 agent 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, acknowledgment due; and the acknowledgment 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.

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)4.

OBJECTIONS 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.

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

3
1972 AIR 2538 1973 SCR (1) 801
4
1976 AIR 869 1976 SCR (3) 551 1976 SCC (2) 409

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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 court where he resides, Such court will serve summons on the
defendant.

(2) Service of foreign summons may be effected by sending them to the courts in the territories
in which the provisions of the 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 and
Calcutta , it may be sent to the court of small causes within whose jurisdiction it is to be served.

(4) Where the defendant resides in a foreign country , the service of summons may be affected
through the political agent there or a court established there with the authority to serve
summons.

(5)Where the defendant resides out of India and has no authorized agent in India to accept the
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 appropriate means, if there is postal communication between such place and the place
where the court is situated.

(6)Where the defendant is public officer( not belonging to the Indian Military, Naval, or Air
Force) or is a servant of the railway company or local authority, , summons may be served
through the head of the department in which the defendant is employed.

(7)Where the defendant is a soldier , sailor or airman , the court shall send the summons for
service to his commanding officer.

(8)When the defendant is in prison, the service of summons is to be made on the officer in
charge of the prison.

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CONCLUSION

Order 5 of the Code of Civil Procedure, 1908 specifically deals with the issue and service of
summons to the defendant. The summons creates a legal implication on the witnesses to attend
the proceedings and be a witness. In case of default on the part of witnesses with respect to the
summons, they become liable for being penalized. It provides various rules related to the
issuance of summons and their modes of service. 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.

BIBLOGRAPHY

• Prathmesh Shinde, SUMMONS : A INITIATE STAGE OF CIVIL SUIT LEGAL SERVICE INDIA
- LAW, LAWYERS AND LEGAL RESOURCES,
https://www.legalserviceindia.com/legal/article-4577-summons-a-initiate-stage-of-
civil-suit.html (last visited Mar 12, 2023).
• - et al., WHAT YOU SHOULD KNOW ABOUT PROCEDURAL ASPECT OF SUMMONING AND
ATTENDANCE OF WITNESSES IN CIVIL PROCEEDINGS IPLEADERS (2021),
https://blog.ipleaders.in/what-you-should-know-about-procedural-aspect-of-
summoning-and-attendance-of-witnesses-in-civil-proceedings/#Extent_and_scope
(last visited Mar 12, 2023).
• Civil litigation stages - vakil search, (2019), https://vakilsearch.com/blog/civil-
litigation-stages/ (last visited Mar 20, 2023).
• - et al., ORDER 5 CPC IPLEADERS (2022), https://blog.ipleaders.in/order-5-
cpc/#Summons_to_defendants (last visited Mar 17, 2023).
• Civil Procedure (CPC) with Limitation Act, 1963 by Justice C.K. Takwani.
• Code Of Civil Procedure by Sudpito Sarkar & V R Manohar.
• Code of Civil Procedure, Mulla.
• Manual Of The Civil Procedure Code, B.M. Prasad & Manish Mohan

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