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Summons : A Initiate Stage Of Civil Suit

The first word in civil suit comes to the mind of an ordinary person when he has to go to court either as Plaintiff or Defendant is summons. So let’s learn the term “summons and its service” through this article. The Code of Civil Procedure prescribes rules under Order 5 read with Section 27 to 29 in relation with Summons to Defendant.

Meaning of term Summons

The term summons has not been defined in Code of Civil Procedure 1908 but according to Black’s law dictionary:
Summons means a writ stating an action is commenced against him in court.

In code of civil procedure 1908 summons can be issued to following persons:

Summons To Defendant - Order 5 of Code and Section 27 to 29 of Civil Procedure 1908
When any party (Plaintiff) filed a suit against another party i.e. Defendant. The Defendant has to be informed that the suit is filed against him and it is necessary to appear before court of justice to defend himself in such situation the court send an intimation document to defendant is said to be summons to defendant.

The summons of Defendant can served for two purposes i.e. Either for settlement of issues or for final settlement of the suit.

Summons TO Witnesses – Order 16 and Section 27 to 31 of Code of Civil Procedure

The summons shall issue by the Court to any person to give evidence as witness or produce document which is in his possession before court on particular date such intimation document is said to be summons of Witness.The summons of Witnesses can served for two purposes i.e. Either for giving his oral evidence or for final production of documents.

Herein we are going to discuss with Summons to defendant in this article.

Important Conditions in relation with summons of Defendant.

There are certain conditions must take into consideration such as:
  1. Summons shall be issued by the Court in which the suit is pending before it for appearance of defendant and opportunity to answer the plaintiff’s claim.
  2. Summons may be served within within 30 days from institution of suit.
  3. Every summons shall be signed by the presiding Judge or its officer with seal of the court.
  4. Copy of plaint should be accompanied with summons.
  5. The Summons to defendant must show its purpose of issuance.

When Summons is not necessary to issue

When the Plaintiff’s claim in a suit is admitted by the Defendant before issuance of summons then there is no need of issue of summons and court shall pronounce judgment in favor of plaintiff ( Order 12 Rule 6 Of C.P.C.)

Liability of Defendant:

It is duty of defendant to appear and file his defence in pleading i.e. written statement within 30 days from the date of service of summons but the Court may be extent such period up to 90 days from such service. If defendant fails to file such written statement then the court has empowered with pronounce judgment against such defendant, subject to its discretion to call for proof of fact pleaded by the plaintiff. ( Order 8 Rule 1 of CPC)

Appearance and Exemption from Personal Appearance- Order 5 Rule 4 , Section 132, 133 of C.P.C.

The Defendant after receiving of summons he may appear either personally or through his pleader or through any other pleader accompanied by any person authorized to answer on behalf of the defendant.

But it shall not be necessary to appear personally to defendant if he fall under the benefit of exemption as follows If:

  1. Defendant is woman who is not appearing in public according to custom and manner of the country.
  2. Defendant is any one holding official character such as The President of India, The Vice President of India, Speaker Of parliament or State Legislative Assembly, The Judges of High Court or Supreme Court, Minister of Union or States etc.
  3. The Defendant resides not residing in local limits of jurisdiction of the court
  4. The Defendant residing outside such local limits beyond 50 miles or 200 miles (if any conveyance is available) from such court.
  5. The defendant is appear before court in representative character then other defendants may be exempted.( Order.1 Rule. 8)

Content of summons

Every summons should provide its purpose i.e. either it issued for settlement of issue or for final decision of the suit. The summons must stating intended date fixed by the court for appearance and such date should not be unreasonable to the defendant for appearance and answer to the suit.

Modes Of Service of Summons

There are certain modes of service of summons, The Court always endeavor to speedy trial but it also make sure that the reasonable opportunity must be given to the parties of the suit hence the summons to defendant can be served on any following modes:
  1. Summons issued by the court personally to the Defendant or his agent.

    It is ordinary way to serve summons to the defendant, after institution of suit the court may issue summons to the defendant and such summons shall be delivered by the officer of the court (Belief of court) to the Defendant personally or through his agent if any or in absence of the defendant in his ordinary residence the summon shall serve on his adult member of his family (Adult male member by Bombay High Court Amendment)

    After such service the officer of the court (Belief of court) shall obtain signature of the Defendant or his agent or adult member of his family to whom served personally and return original copy of summons to the court with his report.
     
  2. Service of Summons through Courier services (R.P.A.D. Service)

    The High court of concerning territory shall make rules for such services. The service of summons can be made through Register Postal acknowledgement due or Speed post or courier services. It is addition to the direct service of summons (Order 5 Rule 9(4) Of CPC)
     
  3. Service of summons by plaintiff (By Hand Service)

    The court may allow service of summons through the plaintiff on his application. Such service is valid service and rule of direct service by Court is applicable to such mode of service of summons. (Order 5 Rule 9-A Of CPC)
     
  4. Service Of Summons By Substituted Service – (Order 5 Rule 20 Of CPC)

    When the court is satisfied the Defendant keeping himself away from service of summons in ordinary way the court shall serve summons by following ways:
    1. Affixing Copy of summons tin conscious part of the Court House.
    2. Affixing Copy of summons tin conscious part of the Defendants House
    3. Advertisement in local newspaper where the defendant is ordinarily resides or carry on business or work personally for gain.
       
  5. Service Of Summons Through Electronic Message- (Order 5 Rule 9 (3) Of CPC)

    It is admissible now a days for expediency and speedy service of summons, The Service of summons on Defendant can be made by giving a copy of summons to the defendant through any electronic media such as Emails or Fax under rules prescribed by the High Court.
     
  6. Service of Summons in Special Case - Order 5 Rule 21-30, Section 28 , Order 29 Rule 2 and Order 30 Rule 3 of C.P.C.

For better understanding we shall refer these special cases herein under:
Sr.No. If Defendant Service Of Summons
1 Resides Outside Jurisdiction of Court or state Serve through the court where he resides
2 Resides in foreign Country Serve through Electronic mail ,fax or courier
3 Resides in Presidency town of Mumbai, Kolkata or Chennai Serve through Small Causes Court situated therein
4 Is public servant Serve through Head of department where he is working as public servant
5 Is Soldier, sailor or airman Serve through his commanding officer
6 Is Corporation Serve through Manager, secretary ,director
7 Is Partnership Firm Serve through Firm, one or more partners having control over it
8 Is in prison Serve through officer incharge of jail authority


Objection to Service of summons

Any objection as to service of summons shall be raised by the party at earliest opportunity otherwise it deemed to be waived by the party.

Conclusion
When the plaintiff filed a suit for relief against the defendant, the party who facing allegation must be given an opportunity to express his defence. The document which intimate the defendant that the suit is pending against him is said to be summons to defendant. We can say that Summons is the stage which initiate the proceeding of suit towards its settlement.

Written By: Adv.Prathmesh Ramesh Shinde - B.A.LL.B (Gold Medal) , L.L.M. (SET), MSW
Email Id- [email protected]

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