VIDHI ERA Legal Consultancy & Law Institute

Summons
OUTLINE
✓ ISSUE OF SUMMONS [Order V, Rules (1 to 8)]

▪ Meaning & Object of ‘Summon’

Summon is an intimation send by the Court to any person directing him to
appear before the Court for specific purpose
The object behind issuing summon is to provide an opportunity to the defendant
to appear & answer the claim made by the plaintiff
▪ Essentials of Summons [Rule 1(3) & 2)]
Must be signed & sealed by the Court; &
Accompanied by a copy of the plaint
▪ Summons to defendant [Section 27 r.w. Order V, Rule 1]
Within 30 days from the date of institution
Form of Summons [Appendix B to the 1st Schedule]
▪ Appearance in person [Rule 1(2) & 3]
Exemption from appearance in person
i) Party not resident within the local jurisdiction of the court [Rule 4]
ii) Women not appearing in public [Section 132]
iii) Person entitled to exemption under the Code [Section 133]
▪ Contents of Summons [Rules (5 to 8)]
Purpose for issuing summon [Rule 5]
Fixing date, time & place of appearance [Rule 6]
Order defendant to produce documents relied upon [Rule 7]
In summons is for final disposal, then to produce witnesses [Rule 8]

✓ MODES OF SERVICE OF SUMMONS [Rules (9 to 30)]

▪ Service by Court [Rule 9]

Service by Post [Rule 9(5)]
Ordinary Modes
▪ Service by Plaintiff (Dasti Summons) [Rule 9A]
▪ Personal or Direct Service [Rules (10 to 16) & 18]
▪ Substituted Service [Rules 17, 19 & 20]
Without the order of Court [Rule 17]
i) When defendant refuses to sign acknowledgment
ii) When defendant is absent or cannot be found
With the order of Court [Rule 20]
Effect of substituted service (personal & direct) [Rule 20(2)]

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▪ Service of summons in Particular cases [Rules (21 to 30)]

Where defendant resides outside the jurisdiction of Court [Rules (21 & 23) r.w.
Section 28]
Service within presidency towns by the Court outside [Rules (22 r.w. 23)]
Where defendant resides out of India [Rules (25 & 26) r.w. Section 29]
Where defendant is in Jail [Rule 24]
Where defendant is a public officer or is a servant of railway [Rule (27 r.w. 29)]
Where defendant is a soldier, sailor or airmen [Rules (28 r.w. 29)]
Letter of request substituted for a Summon [Rule 30]

✓ EFFECT OF IRREGULARITY IN SERVICE 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 called as “summons”. The provisions relating to summons to a defendant
are contained in Sections (27 to 29) r.w. Order V, Rule (1 to 30), while Order XVI deals with
summons to witnesses.

ISSUE OF SUMMONS
MEANING & OBJECT OF ‘SUMMON’

The expression “summon” has not been defined in the Code but according to Oxford dictionary,
summon is a document issued from the office of 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.

OBJECT:

The object behind issuing summon is to provide an opportunity to the defendant as to what he has
to say against the prayer made by the plaintiff. This is in consonance with principle of natural
justice i.e., 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.

ESSENTIALS OF SUMMONS

Every summons shall be

i) signed by the judge or such officer appointed by him and shall be sealed with the seal of
the Court [Rule 1(3)]; and
ii) accompanied by a copy of the plaint [Rule 2].

SUMMONS TO DEFENDANT

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Section 27 provides that 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 on such day
not beyond 30 days from the date of institution of suit.

The Supreme Court in Salem Advocate Bar Association v. Union of India [(2003) 1 SCC 49]
explained that the object of this provision is to prevent plaintiff from delaying the issuance of
summons by not taking the necessary steps. It fixes the outer time frame within which the plaintiff
has to take steps in order to get the summons issued. For example - if the suit is instituted on 01-
01-2002, then the correct address of the defendant and the process fee must be filed in the court
within 30 days from the date of institution. Otherwise, it is a ground for rejection of plaint.

Further, Order V, Rule 1 provides that when a suit has been duly instituted by presentation of a
plaint, the Court may issue summons to the defendant calling upon him to appear and answer the
claim of the plaintiff by filing a written statement within 30 days extendable to 90 days from the
date of service of summons.

Provided no summons shall be issued by the Court if, at the time of presentation of a
plaint, the defendant is present and admits the plaintiff’s claim.

APPEARANCE IN PERSON

Rule 1(2) provides that a defendant to whom a summons has been issued, 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.

However, the Court may order the defendant or plaintiff to appear in person. [Rule 3]

EXEMPTION FROM APPEARANCE IN PERSON:

1) No party shall be ordered to appear in person 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 50 miles or 200 miles (where public
conveyance is available for 5/6th of the distance) from the court-house. [Rule 4]
2) Women who according to customs does not appear in public (Pardanashin lady) [Sec. 132].
3) Persons who are entitled to exemption under the Code (high dignitaries) [Sec. 133].

CONTENTS OF SUMMONS

1) The summons must contain a direction (purpose), whether the date fixed is for settlement of
issues only or for final disposal of the suit. [Rule 5]

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2) In case of final disposal of the suit, the defendant should be directed to produce all his
witnesses. [Rule 8]

3) The Court shall fix the date, time & place for appearance, keeping in mind that the defendant
gets sufficient time to enable him to appear and answer the claim of the plaintiff on the day
fixed. [Rule 6]

4) 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. [Rule 7]

MODES OF SERVICE OF SUMMONS

The Code prescribes four ordinary modes and one alternative mode of serving summons to
a defendant which are discussed as follows:

i) Service by Court [Rule 9]

Ordinary Modes
ii) Service by Post [Rule 9(5)]
iii) Service by Plaintiff (Dasti Summons) [Rule 9A]
iv) Personal or Direct Service [Rules (10 to 16) & 18]
v) Substituted Service [Rules 17, 19 & 20]

SERVICE BY COURT

Summons to the defendant residing within the jurisdiction of the court shall be served through
court officer or approved courier service or by registered post (RPAD), speed post, fax, message,
e-mail service or by any other permissible means of transmission. [Rules 9(1 to 3)]

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. [Rules (4 r/w 21)]

NOTE: The High Court or the District Judge shall prepare a panel of courier agencies. [Rule 6]

SERVICE BY POST:

Rule 9(5) provides that 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.

Provided that where the summons was properly addressed, prepaid and duly sent by
registered post acknowledgment due (RPAD) and the acknowledgment is lost or not received by
the Court within 30 days from the date of issue of the summons [Proviso to Rule 9(5)]. There will
be a presumption of valid service of summons even in the absence of an acknowledgement slip.

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NOTE: 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.

SERVICE BY PLAINTIFF

Rule 9A provides that the Court may also permit service of summons by the plaintiff in addition
to service of summons by the court. It is also called dasti summons.

In Salem Advocate Bar Association v. Union of India [(2005) 6 SCC 344] Supreme Court
HELD that there is no objection in giving an opportunity to the plaintiff to serve summons on the
defendant. But there should be sufficient safeguards to avoid false report of service of summons.
Therefore, High Courts should make appropriate rules to ensure that the provisions are properly
implemented and there is no abuse of process of law.

PERSONAL OR DIRECT SERVICE

Rules (10 to 16) & 18 deal with the personal or direct service of summons upon the defendant.
The following principles must be remembered in this regard -

i) The summons must be served to the defendant in person or to his authorized agent. [Rule 12]

ii) Where the defendant is absent from his residence and there is no likelihood of him being found
within reasonable time at his residence and he has no authorized agent, summons may be
served on any adult male or female member of his family but not servant. [Rule 15]

iii) In a suit relating to any business or work against a person not residing within court’s
jurisdiction, it may be served to the manager or agent of carrying on such business or work.
[Rule 13]

iv) In a suit of immovable property, if the service cannot made on the defendant or his authorized
agent, it may be made on any agent of the defendant in charge of property. [Rule 14]

v) Where there are two or more defendants, service shall be made on each of them. [Rule 11]

In all the above cases, service of summons should be made by delivering or tendering the copy
thereof to the person who shall make an acknowledgement of such service. [Rule 16]

The serving officer thereafter shall make an endorsement on the original summon 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. [Rule 18]

SUBSTITUTED SERVICE

“Substituted service” means the service of summons by a mode which is alternative for the
ordinary mode of service of summons. It is resorted to only when the Court feels that summons
cannot be served by any of the ordinary modes. There are two modes of substituted service -

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i) Service without the order of Court. [Rule 17]

ii) Service with the order of Court. [Rule 20]

SERVICE WITHOUT THE ORDER OF COURT:

Rule 17 lays down the following circumstances, when substituted service can be made on the
defendant without the order of court:

a) Refusal of acknowledgment - Where the defendant or his agent refuses to sign the
acknowledgment.
b) Defendant is absent OR cannot be found - 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 cannot be found within a reasonable time and there is no
authorized agent nor any other person on whom such service can be made.

In both the above circumstances, 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 ordinarily resides
or caries on business or personally works for gain.

Procedure to be followed after such service -

After affixing such copy of summons as stated above, the serving officer shall them return the
original to the court issuing summon with a report endorsed thereon stating

a) the fact about affixing the copy;

b) the circumstances under which he did so;
c) the name and address of the person, if any, by whom the house was identified and in whose
presence the copy was affixed

Further, Rule 19 provides that if the Court is satisfied, either on affidavit or examination on oath
of serving officer, that the summon is duly served, it may either declare that summons has been
duly served or may make such inquiry as it thinks fit.

The Supreme Court in State of Jammu & Kashmir v. Haji Wali Mohammed [AIR 1972 SC
2538] HELD that the declaration by the Court under Rule 19 about the due service of summons is
essential. If provisions are not complied with, service of summons cannot be said to be in
accordance with law. Also, it must be remembered that this is not a regular mode of service and
hence, it should not normally be allowed and can be effected only as a last resort. Basant Singh
v. Roman Catholic Mission [(2002) 7 SCC 531]

SERVICE WITH THE ORDER OF COURT:

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Rule 20 is resorted to with the order of court, if the Court is satisfied that there is reason to believe
that defendant avoids service or for any other reason, the summons cannot be served in the ordinary
way, in such case, the service shall be affected in following manner -

a) by affixing a copy of summons in some conspicuous place in the court house, and in the
house in which the defendant is known to have last resided, carried on business or
personally worked for gain, or
b) in such other manner as it thinks fit.

The Court may order service of summon by advertisement in a daily newspaper circulating in the
locality in which the defendant is last known to have resided or carried on business or personally
worked for gain. [Rule 20(1A)]

Effect of substituted service of summons -

Rule 20(2) provides that substituted service is as effective as personal service, and such defendant
shall be deemed to be duly served in accordance with law. The Court shall fix a time for the
appearance of defendant and give him reasonable opportunity to appear before court

NOTE: Thus, the Court may adopt any of these modes for serving summons on the defendant so
that he is ensured fair trial and there is no delay in the progress of the suit.

SERVICE OF SUMMONS IN PARTICULAR CASES

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. [Rules (21 & 23) r.w. Section 28]

2) 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. [Rule 22]

3) 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. [Section 29]

a) Where the defendant resides out of India and has no authorised 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 communication
between such place and the place where the court is situated. [Rule 25]

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b) Where the defendant resides in a foreign country, the service of summons may be
effected through the political agent there or a court established there with authority
to serve summons. [Rule 26]

4) Where the defendant is in prison, the service of summons is to be made on the officer in
charge of the prison. [Rule 24]

5) Where the defendant is a public officer (not belonging to the Military, Navy or Air Force),
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. [Rule 27]

6) Where the defendant is a soldier, sailor or airman, the court shall send the summons for
service to his commanding officer. [Rule 28]

7) A Court may substitute for a summons, a letter of request which may contain all particulars
required to be stated in a summons. This step may be taken by the court keeping in view the
office held or position occupied by the defendant. [Rule 30]

EFFECT OF IRREGULARITY IN 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.

The Supreme Court in Prabin Ram Phukan v. State of Assam [(2015) 3 SCC 605] HELD that
there is distinction between non-service of notice and procedural irregularity in service of notice.
In 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.

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