Order V of the Code of Civil Procedure (CPC), 1908, delineates the procedures for issuing and serving summons in civil cases in India. These provisions ensure that defendants receive proper notice of legal actions against them, upholding the principles of natural justice.
MEANING AND DEFINITION OF SUMMONS
A summons is a legal document issued by a court, directing a party to appear before it to respond to a claim. It serves as an official notification to the defendant about the initiation of legal proceedings and provides an opportunity to present their defense. The issuance and service of summons are governed by Sections 27 to 32 and Order V of the CPC.
OBJECTIVES OF ISSUING SUMMONS
- Notification: Inform the defendant about the legal action initiated against them.
- Opportunity to Defend: Provide the defendant with a chance to present their case, ensuring adherence to the principle of “audi alteram partem” (hear the other side).
- Ensure Fair Trial: Facilitate the defendant’s presence in court, contributing to a fair and transparent judicial process.
KEY PROVISIONS OF ORDER V
Order V comprises Rules 1 to 30, detailing the procedures for issuing and serving summons:
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Rule 1: Issuance of Summons
Upon duly instituting a suit, the court issues a summons to the defendant to appear and answer the claim. The defendant is required to file a written statement within 30 days from the date of service of summons. If the defendant fails to file the written statement within this period, the court may, for reasons recorded in writing, extend the period but not beyond 90 days from the date of service. -
Rule 2: Copy of Plaint Annexed to Summons
Every summons must be accompanied by a copy of the plaint or, if permitted, a concise statement thereof. This ensures that the defendant is fully informed of the claims against them. -
Rule 5: Summons to Settle Issues or for Final Disposal
The court determines whether the summons is for the settlement of issues or for the final disposal of the suit. This direction is specified in the summons to inform the defendant of the purpose of their appearance. -
Rule 9: Delivery of Summons by Court
Summons may be served through various modes, including personal service by an officer of the court, registered post, or other means as directed. This rule ensures flexibility in serving summons, accommodating different circumstances. -
Rule 9A: Summons Given to the Plaintiff for Service
The court may permit the plaintiff to serve the summons directly to the defendant, in addition to the court’s service methods. This provision aims to expedite the process and ensure timely service. -
Rule 17: Procedure When Defendant Refuses to Accept Service or Cannot Be Found
If the defendant refuses to accept the summons or cannot be located, the serving officer must affix a copy of the summons on the conspicuous part of the defendant’s residence. This method, known as substituted service, is deemed sufficient in such cases.
MODES OF SERVICE OF SUMMONS
Order V outlines various modes for serving summons to ensure effective communication:
- Personal Service: Delivering the summons directly to the defendant or their authorized agent.
- Service by Post: Sending the summons via registered post to the defendant’s address.
- Substituted Service: If direct service is not possible, the court may order alternative methods, such as affixing the summons on the defendant’s residence or publishing it in a newspaper.
CASE LAWS ILLUSTRATING SERVICE OF SUMMONS
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Kailash v. Nanhku, AIR 2005 SC 2441
- Facts: The defendant failed to file a written statement within the prescribed period.
- Issue: Whether the court can extend the time for filing a written statement beyond the period specified in Order V Rule 1.
- Held: The Supreme Court held that the time limit for filing a written statement is directory, not mandatory. The court may extend the time in exceptional cases for reasons recorded in writing.
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Sangram Singh v. Election Tribunal, AIR 1955 SC 425
- Facts: The defendant did not appear despite being duly served with the summons.
- Issue: Whether the tribunal could proceed ex parte against the defendant.
- Held: The Supreme Court ruled that if a party, after due service of summons, fails to appear, the court is entitled to proceed ex parte.
PRINCIPLES AND DOCTRINES RELATED TO SERVICE OF SUMMONS
- Principle of Natural Justice: Ensures that no person is condemned unheard, aligning with the maxim “audi alteram partem.”
- Doctrine of Substituted Service: Allows the court to employ alternative methods of service when the defendant is deliberately avoiding or cannot be served through ordinary means.
CONCLUSION
Order V of the CPC provides a comprehensive framework for the issuance and service of summons, ensuring that defendants are adequately informed of legal proceedings against them. By adhering to these provisions, courts uphold the principles of natural justice and facilitate a fair trial process.