Order V CPC.

Importance and
significance of process of summoning.

Summoning of Defendant

As per section 27 of the CPC, if the suit

is properly instituted then the court may
issue summons to defendant to appear
and answer the claim in the manner as
prescribed. The relevant provisions as
prescribed by the competent authority
for summoning of defendant are
available in Order V of the First
Schedule of CPC which is titled as
"Issue and service of summons".

Summons on duly instituted suit:

Rule 1 of the Order V talks about the
issuance of summons on a "duly
instituted suit", which expression casts
duty on the court, before issuing the
summons to the defendant to ascertain
that whether the suit has duly been
instituted in accordance with the
relevant provisions of CPC or other
governing law(s). In my experience,
generally the learned Civil Judges don't
even bother to go through even the
contents of plaint before ordering the
issuance of summons what to talk about
ascertaining that whether the suit has
duly been filed or not? So the first think
which lawyers should take care of
before presenting the plaint in the court
is, that there should not be such a
defect in their suit which may render
the same as not validly instituted suit,
and for the judges, it is their obligation
to satisfy themselves, before issuance
of summons to defendant, that whether
the suit is duly instituted or not, and in
case their is some apparent defect in
the suit then, before issuance of
summons, the plaintiff should have
been required to remedy the defect.

Summons should be accompanied

by the plaint:
Rule 2 requires that summons in the
name of defendant must be
accompanied by the plaint or, if the
court so permits, by a concise
statement. This requirement is also not
complied with in most of the cases.

Form of summons:
The next provision which is relevant to
the discussion is rule 5 which is being
ignored and violated with impunity by
every court, which is reproduced as
under for ready reference:

5. Summons to be either to settle issues

or for final disposal. The Court shall
determine, at the time of issuing the
summons, whether it shall be for the
settlement of issues only, or for the final
disposal of the suit; and the summons
shall contain a direction accordingly:

Provided that, in every suit heard by a

Court of Small Causes, the summons
shall be for the final disposal of the suit.

The mentioned rule requires that the

court is bound to determine, before
issuance of summons, whether the
summons shall be issued for settlement
of issues only or for the final disposal of
the suit. In my almost 15 years of
practice I have not seen any single
order of a civil judge specifically
determining that what kind of
summons, either for settlement of
issues or for final disposal of the suit
should be issued. I have also noticed
that in many cases the summons are
issued for final disposal rather than for
settlement of issues which is such an
illegality which may render the whole
subsequent proceeding of the suit as
nullity.

Here another question arises which

need to be briefly addressed before
further going on viz. why there is no
provision for summoning of defendant
for simple appearance or for filing
written statement. It would be also hard
for some of us to understand that how
the summons for settlement of issues
may be issued without first requiring the
defendant to file written statement. The
key to resolve these confusions lies in
rule 7 & Form No. 2 of Appendix B of
First Schedule of CPC. Form No. 2 is
reproduced as under:

SUMMONS FOR SETTLEMENT OF

ISSUES (O.5, rr. 1, 5.)
(Title)
To,
[Name, description and place of
residence.]
  
WHEREAS_______________________________
______________________________
has instituted a suit against you for
______  you are hereby summoned to
appear in this Court in person or by a
pleader duly instructed, and able to
answer all material questions relating to
the suit, or who shall be accompanied
by some person able to answer all such
questions, on the day of day of 19___,
at  o'clock in the _______ noon, to answer
the claim ; 6[and further you are hereby
directed to file on that day a written
statement of your defence and to
produce on the said day all documents
in your possession or power upon which
you base your defence or claim for set-
off or counter-claim, and where you rely
on any other document whether in your
possession or power or not, as evidence
in support of your defence or claim for
set-off or counter-claim, you shall enter
such documents in a list to be annexed
to the written statement].

Take notice that, in default of your

appearance on the day before
mentioned, the suit will be heard and
determined in your absence.

GIVEN under my hand and the seal of

the Court, this _______ day of
_____19____ .

Judge.
The language employed in the
summons is simple enough to
understand that under the scheme of
the Code, on or before the date
mentioned in the summons for
settlement of issues, the defendant is
bound to submit written statement,
produce all the documents in his
possession upon which he bases his
defence or claims set-off or counter
claim.

Service of summons:
After issuance of summons by the court
the next stage is the service of
summons on the defendant. Rules 9 to
16 deals with the manner in which the
service of summons may be made. Rule
9 says that summons should be served
by the proper officer or his subordinate.
Rule 10 prescribes the mode of service
viz. by delivering or tendering of duly
signed and sealed summons.

Service by post:
As per rule 10-A, at the time of issuing
the summons under rule No. 9, another
copy of the summons shall be sent to
the defendant through registered post,
acknowledgement due. This provision is
also not being complied with in almost
all the cases as in practice only
summons are sent through registered
post but acknowledgement due cards
are not accompanied with the post and
due to this defect the whole exercise of
service through registered post loses its
legal value because sub-rule (2) of rule
10-A has categorically mentioned that
only the signature of defendant on the
acknowledgement or endorsement
thereon by the postman regarding
refusal of defendant to take the
summons shall be prima facie proof of
service and not otherwise. So summons
which have been sent through
registered post but without
acknowledgement due would not carry
presumption of service on defendant.

Service should be made in person:

Rule 12 requires that service of
summons should  be made in person or
through authorised agent, however if
the defendant cannot be found and also
has no authorised agent then service of
summons on an adult male member of
defendant's family would be considered
as good service (rule 15).

Person served to sign

acknowledgement:
Under rule 16 the serving officer is
bound to require the person on which
the summons are served, after
delivering the copy of summons to him,
to sign the original summons in
acknowledgement of receipt of
summons. As per rule 18 the serving
officer who has served the summons as
per rule 16 would make an endorsement
on the summons regarding the manner
of service and then, under rule 9 (3)
would return the summons to the court.
If the service is effected under Rule 16
then, under the law there is no need of
further service of summons but in
practice usually the courts, in some
cases repeat the process of service or
order for substituted service through
pasting of summons at the house of
defendant or publication in newspaper
or both, which exercise is unnecessary
and unjustifiable.

Substituted service:
Now we shall consider that in what
circumstances the court may order for
service of summons through
substituted mode and what are the
prerequisites for passing the said
order?
Rule 20 requires that the court may only
pass an order for substituted service
when it comes to the conclusion that,
either the defendant is keeping out of
the way for the purpose of avoiding
service or for any other reason the
summons cannot be served in ordinary
manner.

How the court will conclude that the

defendant is keeping himself out of
way for the purpose of avoiding
service? The answer lies in Rule 17 &
19.
As per Rule 17, if the defendant or any
other person liable to receive summons
under the law refuses to receive the
same or if the serving officer, despite
exercise of due diligence cannot find
the defendant or his agent or person
liable to accept summons, then he
would affix the copy of summons on the
house or place of work of the defendant
and return the original summons to the
court with the endorsement about the
circumstances in which the affixation of
summons has been made. The court
after receipt of original summons along
with the endorsement under rule 17
would be bound to satisfy itself about
the veracity of the report of serving
officer. Rule 19 says that if the
endorsement under Rule 17 is
accompanied by an affidavit of serving
officer then it may after considering
such affidavit either declare that service
has been duly effected or order such
service as it will think fit. However,
despite the affidavit of the officer the
court may require such officer to
appear in court and the court may
examine him oath before passing any
order regarding service. But in case of
non submission of affidavit by serving
officer the court can neither pass the
order of service, which includes
substituted service, nor it can declare
that service has been duly effected
unless it examines the serving officer on
oath.
I think most of the lawyers would agree
with me that before ordering the
substituted service the courts does not
follow the provisions of Rules 17 & 19
and the order for substituted service is
made in a mechanical manner which
rendered the substituted service illegal.

The Supreme Court in a celebrated

judgement while discussing the
provisions of Order V held:
"Under these provisions the service
could be effected on the defendant
personally, by the registered post,
through his authorised agent, or on a
male member of his family in
accordance with these provisions. It is
specifically laid down in rule 17 that
where the serving officer, after using all
due and reasonable diligence, cannot
find the defendant, and there is no
person on whom service can be made,
the serving officer shall affix a copy of
the summons on the outer door or some
other conspicuous part of the house
and shall then return the original to the
Court from which it was issued, with the
report endorsed thereon or annexed
thereto stating that he has so affixed
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. It is
clearly borned out from the record that
no resort to this ordinary way of service
of the summons on the defendant, his
agent (if any) or the male member of his
family was at all made in this case. In
these circumstances, the learned Senior
Civil Judge was not justified in forming
the opinion that no service on the
defendant could be effected in the
ordinary way. In his order, the learned
Senior Civil Judge while setting aside
the ex parte decree though on some
what different consideration, was of the
opinion that there was no reason to
conclude that the "summons could not
be served on the defendant in the
ordinary way" and, therefore, the
substituted service effected on him was
not justified in the circumstances of the
case."

Substituted service through

publication in newspaper:
Rule 20 has mentioned number of
modes of substituted service but
usually the courts pass the order of
substituted service through publication
in newspaper.
If we go through Rule 20 (1) (e) then it
would become clear that law requires
the publication of summons (as
prescribed under Rule 5) in the
newspaper but not in a single case in
which order of substituted service is
passed by civil court you will find
publication of summons rather in every
case a simple intimation about the
pendency of suit in which defendant is
required to appear on given date is
issued. Such an intimation in no way
may be construed as service of
summons, therefore, legally speaking
initiation of ex parte proceeding after
issuance of such intimation can not be
considered valid proceeding.

Right of hearing & due process:

The service of defendant in a civil suit
intimating him about the claim of
plaintiff and requiring him to answer the
said claim, is not only a legal right
rather it is fundamental right of every
defendant.