Unit 4.

1: SUMMONS
SUMMONS: SECTIONS: 27 – 29; ORDER V
Summons: Meaning:
 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 sent to the defendant by the court is
technically called as ‘Summons’.
 The term ‘Summons’ has not been defined in the Code.
 However the dictionary meaning is followed: “ A summons
is a document issued from the office of the court of justice,
calling upon the person to whom t is directed to attend
before a judge or officer of the court for a certain
purpose”.

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 Unit 4.1: SUMMONS

Object of issuing summons:

 When a suit is filed by the plaintiff against the defendant
and a relief is claimed the defendant must be given an
opportunity as to what he has to say against the prayer
made by the plaintiff.
 This is in consonance with the principles of natural justice
as no one can be condemned unheard (Audi Alteram
Partem).
 If the defendant is not served with the summons, a decree
passed as against him will not bind him.
Essentials of summons: Rules 1 &2:
 Every summons shall be signed by the Judge or such
Officer appointed by him and shall be sealed with the seal
of the court. and must be accompanied by a copy of the
plaint.
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 Unit 4.1: SUMMONS

Form of summons:
 Every summons should be in the forms prescribed in
Appendix B to the (First) Schedule of the Code.
Summons to defendant: Section 27; Order V Rule 1:
 Order V deals with service of summons on the defendant
while Order XVI deals with summons to witnesses.
 When a suit has been filed plaintiff the court must 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 from the date of service of
summons.
 No summons will, however, be issued by the court if, at the
time of presentation of a plaint, the defendant is present
and admits the plaintiff’s claim.
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 Unit 4.1: SUMMONS

Appearance in person: Rule 3

 :A defendant to whom a summons has been issued, may
appear (1) in person or (2) by a pleader duly instructed and
able to answer all material questions relating to the suit; or
(3) by a pleader accompanied by some person able to answer
to all such questions. The court, however, may order the
defendant or the plaintiff to appear in person.
 Exemption from appearance in person: Sections 12 &133;
Rule 4: No party shall be ordered to appear in person: (a)
unless he resides (i) within the local limit of the court’s
Ordinary Original Jurisdiction; or (ii) outside such limits,
but at a place less than 50 miles or 200 miles (where public
conveyance is available) from the court-house or (b) who
is not a woman appearing in public or (c) who is entitled to
exemption under the Code. (Section 133).
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 Unit 4.1: SUMMONS
Mode of Service of summons: Rules 9 – 30:
 The service of summons is of primary importance as it is a
fundamental rule of the law of procedure that a party must
have a fair and reasonable notice of the legal proceedings
initiated against him so that he can defend himself.
 The problem of service of summons is one of the major
causes of delay in the progress of the suit.
 It is common knowledge that defendants try to avoid
service of summons.
 The Law Commission considered the problem and it was
felt that certain amendments were necessary in that
direction and a defendant can be served by a plaintiff or
through modern modes of communication. Accordingly,
amendments were made in the Code in 1976, 1999 and
2002.
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 Unit 4.1: SUMMONS

Mode of Service of summons: Rules 9 – 30: (continued)

 Five principal modes of service of summons:
1. Personal or direct service: Rules 10 – 16 & 18.
2. Service by court: Rule 9
3. Service by plaintiff: Rule 9 A.
4. Substituted service: Rules 17, 19&20.
5. Service by post:
Explanation to the modes:
 Personal or direct service: Rules 10 – 16 & 18.
 This is an ordinary mode of service of summons and the
following are the principles to be observed:
i. Wherever it is practicable, the summons must be served
to the defendant in person or to his authorized agent.

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Explanation to the modes: (continued)

 Personal or direct service: Rules 10 – 16 & 18. (continued)
ii. Where the defendant is absent from his residence at the
time of service of summons and there is no likelihood of
him being found at his residence within a reasonable time
and he has no authorized agent, the summons may be
served on any adult male or female members of the
defendant’s family residing with him.
iii. In a suit relating to any business or work against a
person, not residing within the territorial jurisdiction of
the court issuing the summons, it may be served to the
manager or agent carrying on such business or work.
iv. Where there are two or more defendants, service of
summons should be made on each defendant.

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 Unit 4.1: SUMMONS
Explanation to the modes: (continued)
 Personal or direct service: Rules 10 – 16 & 18. (continued)
v,. In a suit for immovable property, if the service of
summons cannot be made on the defendant personally
and the defendant has no authorized agent, the service
may be made on any agent of the defendant in charge of
the property.
 In all the above cases , service of summons should be
made by delivering or tendering a copy thereof.
 Where the serving officer makes a personal delivery to the
defendant or to his agent or other person on his behalf the
person to whom a copy is delivered must make an
acknowledgment of service of summons. The serving
officer, thereafter, must make an endorsement on the
original summons 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.
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 Unit 4.1: SUMMONS
Explanation to the modes: (continued)
Service by court: Rule 9:
 Summons to defendant residing within the jurisdiction of
the court shall be served through court officer or approved
courier service.
 Summons can also be served by registered post, speed
post, acknowledgment due (RPAD), courier service, fax,
message, e-mail service or by any other permissible means
of transmission.
 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.
 The court shall treat refusal of acceptance as a valid
service.
 While summons is properly addressed, prepaid and duly
sent by Registered Post (RPAD) there will be a
presumption of valid service of summons even in the
absence of an acknowledgment slip. 9
 Unit 4.1: SUMMONS
Explanation to the modes: (continued)
3. Service by plaintiff: Rule 9 – A:
 The court may also permit service of summons by the
plaintiff in addition to service of summons by the court
4. Substituted service: Rules 17, 19 & 20:
 “Substituted service” means the service of summons by a
mode which is substituted for the ordinary mode of
service of summons. Two modes of substituted service are:
 (a) (i): Where the defendant or his agent refuses to sign
the acknowledgment or (ii) where the serving officer, after
due and reasonable diligence, cannot find the defendant
who is absent from his residence and there is no likelihood
of him being found at his residence within a reasonable
time and there is no authorized agent nor any other
person on whom service can be made, 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 works for gain.
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 Unit 4.1: SUMMONS
Explanation to the modes: (continued)
4. Substituted service: Rules 17, 19 & 20: (continued):
 When the affixture of summons is made as said above, the
service is effected without an order of the court and
therefore, the declaration by the court about the due
service of the summons is essential.
 (b): Where the court is satisfied that there is reason to
believe that the defendant avoids service or for any other
reason the summons cannot be served in the ordinary
way, the service may be effected in the following manner:
(i) by affixing a copy of the summons in some
conspicuous place in the courthouse and also upon such
conspicuous part of the house in which the defendant is
known to have last resided, carried on business or
personally worked for gain. or
 (ii) in such manner as the court thinks fit.

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Explanation to the modes: (continued)

4. Substituted service: Rules 17, 19 & 20: (continued):
 Where the court orders service by an advertisement in a news
paper, the newspaper should be a daily newspaper circulating
in the locality in which the defendant is last known to have
actually or voluntarily resided, carried on business or
personally worked for gain.
 Such service is an effective service, even if the defendant is not
the subscriber of the newspaper nor reading it.
 Under Rule 20, the service of summons is effected by the order
of the court only after the court is satisfied that the defendant
avoids service or it cannot be served in the ordinary way. Such
satisfaction must be recorded by the court in writing.
 Substituted service is as effective as personal service. Rule 20
(2).
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Explanation to the modes: (continued)
5. Service by post:
 Where an acknowledgment purporting to be signed by the
defendant or his agent is received by the court, or the
defendant or his agent has refused to take delivery of the
summons when tendered to him, the court issuing the
summons shall declare that the summons has been duly
delivered on the defendant.
 The same principle applies in a case where the same was
properly addressed, prepaid and duly sent by RPAD and
the acknowledgment is lost or not received by the court
within 30 days from the date of issue of summons.
 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.

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 Unit 4.1: SUMMONS
Explanation to the modes: (continued)
Refusal of summons:
 Where the defendant refuses to receive the summons, he is
deemed to have been served.
 Similarly, where an acknowledgment or receipt purported
to have been signed by the defendant (or by his agent) is
received by the court that the defendant (or his agent) has
refused to take the delivery of summons, the court will
proceedtreating the defendant as served.
Objection as to service of summons:
 An objection as to service of summons should be raised at
the earliest opportunity. If it is not taken at that stage, it is
deemed to have been waived.
Service of summons in special cases: Rules 21 – 30.
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