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Summon

A summons is a legal document issued by a court to a person involved in a legal proceeding, requiring their presence. It must be properly served for any legal action to proceed. The document outlines the legal framework for summons in India based on the Code of Civil Procedure and Criminal Procedure Code. It discusses the process for issuing, serving, and proving service of a summons, including requirements that it be accompanied by relevant documents, served in person, and signed for by the recipient. Substituted service through newspaper is allowed only if the court determines ordinary service was avoided. [END SUMMARY]

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Ankita Sinha
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131 views

Summon

A summons is a legal document issued by a court to a person involved in a legal proceeding, requiring their presence. It must be properly served for any legal action to proceed. The document outlines the legal framework for summons in India based on the Code of Civil Procedure and Criminal Procedure Code. It discusses the process for issuing, serving, and proving service of a summons, including requirements that it be accompanied by relevant documents, served in person, and signed for by the recipient. Substituted service through newspaper is allowed only if the court determines ordinary service was avoided. [END SUMMARY]

Uploaded by

Ankita Sinha
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as DOCX, PDF, TXT or read online on Scribd
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Summon

A summons is a legal document that is issued by a Court on a person involved in a legal


proceeding. When a legal action is taken against a person or when any person is required to
appear in the court as a witness in court proceedings, to call upon such person and ensure his
presence on the given date of the proceedings, summons is served. If the summons is not duly
served then no action can be taken against the defendant. If defendant fails to attend court
after receiving summons, he will be ex-parte by the Court. Section 27 and Order V of the
Code of Civil Procedure, 1908 deal with ‘Service of Summons’ on the defendant/Respondent.
Order 16 deals with summoning and attendance of witnesses. Sections 61 to 69 of Cr.P.C
deals with service of summons on accused and witness.

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)

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.

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

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.

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 intimation in no way may be construed as
service of summons; therefore, legally speaking initiation of ex parte proceeding after
issuance of such intimation cannot 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, guaranteed under Articles 4 & 10-A of the Constitution.

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