Procedure of service of summons under Code of Civil Procedure

The concept of ‘Summons is an important subject matter of the CPC. When the plaintiff files a suit, the defendant has to be informed that the 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 which is sent to the defendant by the court is technically known as ‘Summons’. Although the term ‘ Summons” has not been defined in the code, a summons is a document issued from the office of a court of Justice, calling upon the person to whom it is directed to attend before a Judge or officer of the Court for a certain purpose. With the provision in Rule 1 of order 5 where it is stated that no summons shall be issued when the defendant has appeared at the presentation of the plaint and admitted the plaintiff’s claim. In all other cases summons must be issued and served to defendants. 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 Rule (2)

Importance of Service of Summons:

The importance of service of summons, in whatever way it may be effected, is that the defendant may be informed of the institution of the suit in due time before the date fixed for the hearing and to extend him an opportunity to resist the suit where the defendant is not served with summons, the mere fact that he had no knowledge of the suit is immaterial. There are some important of service of summons. These are following:

• It is a fundamental rule of procedure.
• A party must have a fair and reasonable notice of the legal proceedings initiated against him, so that he can defend himself.
• It may be issued to the defendant to appear and answer the claim and may be served in manner prescribed.
• A summons may be sent by the court by which it is issued.
• In every suit heard by a Court of small Causes, the summons shall be for final disposal of the suit.
• It can be effected in section 27, order V and Rule 1 of the C P C. Mode of Service of Summons :

The Code prescribes four members of service of summons upon a defendant:

1. Personal Service
2. Service by affixation
3. Service by post, and
4. Substituted Service

Personal or Direct Service:

Rules 10 to 16 and 18 deal with personal or direct service of summons upon the defendant. This is an ordinary made of service of summons. Here the following principle; must be remembered:

• Where it is practicable, the summons must be served to the defendant in person or to his authorized agent (rule 12).
• Where there are more defendants that one, service of the summons shall be made on each defendant (rule 11).
• Where the defendant is absent from his residence at the time of service of summons may be served on any adult male member of the defendant’s family residing with him (rule 15).

• In all above cases, service of summons should be made by delivering or   tendering a copy thereof.

2. Service by Affixation:

Rule 17 specifies this method. When the defendant or his agent refuses to accept personal service of summons, this method is to be used when the defendant or his agent refuses to accept personal service, the serving officer shall affix a copy of the summons to on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain.

 Mere temporary absence of a defendant from his residence or place of business does not justify service by affixation.

Leading   Case: – Shamsunnahar Vs. Salahudding, 4 MLR (A D) 405

3. Service by Post:

Rule 19B specifies that the court shall, in addition to, and simultaneously with, the issue of summons for personal service, also direct the summons for personal service, also direct the summons to be serve, by registered post with acknowledgement due addressed to the defendant or his agent at the place where the defendant or his agent actually and voluntarily resides or carriers or business.

Leading   Case: – Gyanammal Vs. Abdul Hussain

4. Substituted Service:

The Provision for substituted service is provided for in Rule 20 or order 5 of the C P C. Rule 20 specifies that in two situations the method of substituted service may be restore to:

• When there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or
• When for any other reason summons cannot be served in the ordinary way.

Service in Special Cases:

Apart from the above four types of modes of service of summons rules 21 to 30 to deal with another mode of service which deal with service outside the Jurisdiction of the courts etc.

In conclusion, it can be said that Summons has play an important role in that code of Civil Procedure, 1908.