This Article is written by Ashirvad Gautam & this article discuss the concept of Summons – Issue & Service of Summons under CPC
Introduction
A summons is the first step in the court process, and civil cases offer the structure for resolving legal problems. Within the framework of the Indian legal system, a summons is an essential procedural tool that signals the start of a lawsuit and the defendant’s involvement in the judicial process. The Code of Civil Procedure (CPC) 1908, on its whole, describes the procedures for summoning the defendant, as read with Sections 27[1] to 29[2] & Order 5. Although the CPC does not define “summons,” most people understand the term to mean the writ that initiates legal action against an individual in a court of law (Black’s Law Dictionary). A summons is a formal court-issued invitation or mandate for the defendant to attend and answer to the plaintiff’s claim. This action covers both the identification of the pertinent problems and the actions leading up to the suit’s ultimate resolution. Furthermore, in accordance with Order 16 and Sections 27 to 31, Summons also apply to witnesses, requiring them to appear in person to give an oral deposition or provide documentation at a certain time.
Summons to Witnesses
Beyond the domain of defendants, the CPC grants the court the authority to summon witnesses through Order 16 and Sections 27[3] to Section 31[4]. Those who can appear in court on a designated day with pertinent documentation or as witnesses are the targets of these Summons. Witness Summons are essential to the judicial process because they make it easier to produce important papers at the end or provide oral testimony.
Crucial Conditions for Summons to Defendant
The following criteria must be met for defendants to get summons:
- Issuance by the Court with Jurisdiction: The court where the lawsuit is proceeding must issue the summons requiring the defendant to attend.
- Punctual Service: Summons can be served 30 days after the lawsuit is filed.
- Authorization and Documentation: The presiding Judge or an officer designated by them, along with the court seal, must sign each summons. It should also include a copy of the plaint attached to it.
- Clarity of Purpose: The defendant must be made aware of the purpose of the summons, including the resolution of any outstanding issues and the suit’s ultimate outcome.
Situations In Which a Summons Is Not Required
When it might not be necessary to issue a summons, the CPC offers an exception. In particular, the court may grant judgment in favour of the plaintiff in accordance with Order 12 Rule 6 if the defendant acknowledges the plaintiff’s claim prior to the summons being issued.
Liability of the Defendant
The defendant must present and submit a written statement within 30 days of the service date after receiving the summons. The court may, however, decide to extend this time limit by up to ninety days. If the defendant does not cooperate, the court has the authority to rule against them and may request evidence of the facts that the plaintiff pled in accordance with O8 R1.
Appearance and Exemption from Personal Appearance:
A defendant may attend in person or through a pleader with the presence of an authorized representative after getting a summons. Order 1 Rule 8 lists some exclusions from the requirement to make a personal appearance, including ladies who do not appear in public, people in certain official positions, people who live outside the court’s jurisdiction, and defendants presenting in a representative capacity.
Content of Summons
Every summons must be explicit about its intent, including whether it is being sent for the resolution of disputes or the suit’s ultimate ruling. Additionally, it should specify the planned court date of the defendant’s appearance, making sure that it is reasonable and gives them enough time to get ready.
Modes of Service of Summons
The court prioritizes providing fair opportunity to all parties in order to facilitate swift legal proceedings. Among the several methods of service used in this project is Personal Service, which is a traditional technique in which court officers personally deliver Summons to defendants or their representatives. Acknowledging the need for flexibility, the High Court creates regulations for Courier Services (R.P.A.D. Service) that permit the use of speed post, courier services, or registered postal acknowledgement as substitutes for direct service. Additionally, upon application, the court may allow plaintiff service (by hand service), allowing the plaintiff to issue Summons in accordance with the court’s established guidelines for direct service. The court may use substituted service if the defendant’s evasion makes conventional means ineffective. This includes posting copies of the summons in obvious places around the court or the defendant’s home, or it can be done by distributing information through ads in the local newspaper. Order 5 Rule 9(3) allows the Code of Civil Procedure (CPC) to embrace the modern era by recognizing Electronic Message Service. This means that summons may be served quickly by using electronic means like faxes or emails. When combined, these several strategies highlight the court’s dedication to a speedy and equitable trial process.
If a summons is issued via Registered Post Acknowledgment Due (RPAD), the court will consider the service to be genuine even if an acknowledgement slip is missing. The court may consider it to be a legitimate service if the recipient declines. In Salem Advocate Bar Association v. Union of India[5] (2005), the Supreme Court gave the high court instructions to create suitable regulations or guidelines to guarantee that the summons provisions are carried out correctly and without violating the law or the process of authority.
In the case of Sunil Poddar & Ors vs Union Bank of India[6], the court highlighted that Rule 20 states that if a court directs that the summons be published in a newspaper, it must be published in the newspaper in the community where the defendant works, lives, or owns a company. Even if the defendant is not reading the newspaper, this service is a good way to serve a summons.
The court must provide the defendant a fair amount of time to appear in court before issuing the summons using this method of delivery. In a different case, State of Jammu and Kashmir v. Haji Wali Mohammad[7], the Supreme Court ruled that a summons is not legally served if it does not comply with Rule 19 of Order 5 under the Code.
Service of Summons in Special Cases
Specific regulations are in place to handle particular defendant-related situations or locales to ensure a customised approach to legal representation. The court arranges for service to be made in the defendant’s present jurisdiction when the defendant lives outside the jurisdiction. The laws recognize the need for effective cross-border communication by permitting service via electronic means or courier services for defendants who are located abroad. The Small Causes Court in each Presidency Town is the official channel for service in this aspect. Furthermore, special criteria apply to defendants with special statuses, such as public servants, military personnel, or businesses, in order to accommodate their particular organizational or occupational circumstances. These specific guidelines demonstrate the court’s dedication to equity and flexibility by guaranteeing that Summons and legal notices are served in a way that best fits the unique facts of each case. If a party does not raise an objection to the summons being served, it will be assumed that it has been waived. In the Bheru lal v. Shanti lal[8] case, the court ruled that objections to the summons delivered have to be brought up as soon as feasible. The court will presume that the defendant has forfeited this chance if it is not done at that point.
Conclusion
In summary, the legal process begins when a plaintiff files a lawsuit, and the subsequent phase is indicated by the issuing of a summons. The document influences the course of the judicial proceedings by acting as a vital conduit between the plaintiff and the defendant. This thorough examination of Summons under the CPC aims to shed light on their issuance, service, and the complex circumstances that control their applicability. For the legal process to be fair and just, it is essential that all parties involved comprehend these nuances.
-
References
The Code of Civil Procedure, 1908 Act no. 5 of 1908, §27. ↑
- The Code of Civil Procedure, 1908 Act no. 5 of 1908, §29. ↑
- The Code of Civil Procedure, 1908 Act no. 5 of 1908, §27. ↑
- The Code of Civil Procedure, 1908 Act no. 5 of 1908, §31. ↑
- Salem Advocate Bar Association v. Union of India, (2005) 4 BOM CR 839 ↑
- Sunil Poddar & Ors vs Union Bank of India, 2008 (2) SRJ 308 ↑
- State of Jammu and Kashmir v. Haji Wali Mohammad, 1973 SCR (1) 801
Mulla, D.F. et al. (2017) The code of civil procedure: Including the Commercial Courts, Commercial Division and commercial appellate division of high courts act, 2015. Gurgaon, Haryana: Lexis Nexis. ↑
- Bheru lal v. Shanti lal, AIR1985RAJ53 ↑
