An Assignment

On
Analyzing and Suggesting Reforms of Order V in
Code of Civil Procedure, 1908

Course Title- Law of Civil Procedure

Course code- LJ 3205

Submitted to- Submitted by-

Mr. Ehshan Mazid Mostafa Md. Shahrier Alam
Assistant Professor Student ID- 192805
Law Discipline 3rd Year, 2nd Term
Khulna University Law Discipline
Khulna University

Date of Submission: 25 October, 2022

 ACKNOWLEDGEMENT

To make any assignment, essential requirement is guidance and reference, without which an
assignment is incomplete. I am very much thankful to Mr. Ehshan Mazid Mustafa sir, Assistant
Professor, Law Discipline, Khulna University, without whose guidance and support I would
not have been able to produce this assignment.
Introduction

When we wish to call someone to be present somewhere, we can do it either directly, indirectly,
or by connecting with them over the phone. Everybody behaves in this way. However, have you
ever pondered what a court does when it has to call a witness or request their presence? It is
obvious that it cannot dial their number or dial their number directly. So how does someone find
out that they must appear in court on a certain date?

Well, anytime a court needs to confirm the attendance of a witness or any other individual
engaged in a case in any way, it notifies that person in writing. A summons is an official notice
or document that instructs a person to appear in court on a specific day before a judge. This is
sent by the court via a court representative or any other person authorized by the court to do so.

Recommendations of Order v of Code of Civil Procedure, 1908

Order 5 of the Code of Civil Procedure, 1908 discusses about Issue and Service of Summons.
This order consists of 31 rules regarding summons.

Rule 1. Summons: - Sub rule 1 provides that, when a suit has been duly instituted, a
summons shall be issued by the officer of the Court to the defendant within 5 working
days from the date of filling the suit to appear and answer the claim on a day to be therein
specified. And according to sub rule 2, a defendant to whom a summons has been issued
may appear in person or by a pleader duly instructed. Sub rule 3 specifies that, every such
summons shall be signed by the Judge or by such officer of the Court and shall be sealed
with the seal of the Court. 
Recommendations- This rule is accurate from my opinion. The time limit set for issuing
a summons is perfect also. Appearance of the defendant before the Court by himself or by
his pleader who is duly instructed is also a standard procedure which is being followed in
many developed country’s Justice System. Every summons must be signed by the Judge
or by any officer of the Court and must be sealed with the seal of the Court is also a
standard procedure which is taken to ensure the authority of the Court over the service of
summons. 

Rule 2. Copy or statement annexed to summons: - Every summons shall be

accompanied by a copy of the plaint. 
Recommendations- This rule is also accurate in my opinion because attachment of plaint
with summons may give the defendant an overview of what he has been accused of. 

Rule 3. Court may order defendant or plaintiff to appear in person: - Sub rule 1
provides that, if the Court sees reason to require the personal appearance of the
defendant, the summons shall Order him to appear in person in Court on the day therein
specified and sub rule 2 mentions that, if the Court sees reason to require the personal
appearance of the plaintiff on the same day, then it shall make an order for such
appearance. 
Recommendations- If the Court deems necessary then it can summon the defendant to
appear before Court in person in a specified date and if there is reason then the Court can
summon the plaintiff also in the same date to appear before Court. This rule is also
accurate and there’s nothing to change. 

Rule 4. No party to be ordered to appear in person unless resident within certain

limits: -
According to rule 4, no party of a suit shall be ordered to appear in person unless he
resides within the local limits of the Court’s ordinary original jurisdiction or without such
limits but at place less than fifty or (where there is railway steamer communication or
other established public conveyance for five-sixths (the distance between the place where
he resides and the place where the Court situate) less than two hundred miles distance
from the Court-house.
Recommendations- In this new era of communication, the transport system is way
upgraded than ever and fifty miles distance from the local limits of the Court's
jurisdiction is not a burden anymore for anyone. This fifty-mile limit shall be increased to
hundred miles and the distance of two hundred miles from the Court-house may be
extended to three hundred miles to ensure swift and smooth justice. 

Rule 5. Summons to be either to settle issues or for final disposal: - Rule 5 provides
that, 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.
Recommendations- This rule provides that the Court shall determine whether the
summons shall be for the settlement of issues only or for the final disposal of the suit and
it contains direction from the Court. Another option may be added along with these two
provided here which is to ascertain whether the suit is contested or not. If the suit is
contested then the Court can provide direction accordingly and if the suit is not contested
then the Court may give direction to for its disposal. 

Rule 6. Fixing day for appearance of defendant: - Rule 6 discusses the day for the
appearance of the defendant shall be fixed with reference to the current business of the
Court, the place of residence of the defendant and the time necessary for the service of
the summons; and the day shall be so fixed as to allow the defendant sufficient time to
enable him to appear and answer on such day.
Recommendations- This rule is pretty accurate in my opinion and it doesn’t need any
fixing because in this rule the Court takes its current business and the time necessary to
serve the summons into account and gives the defendant sufficient time to appear before
the Court. 
Rule 7. Summons to Order defendant to produce documents relied on by him: - Rule
7 of this order provides for the summons to appeal and answer shall order the defendant
to produce all documents in his possession or power upon which he intends to rely in
support of his case.
Recommendations- The defendant must produce documents before the Court to support
his claim and through the summons the Court orders him to produce those documents
whether in his possession or not. This rule also doesn’t need any fixing in my opinion. 

Rule 8. On issue of summons for final disposal, defendant to be directed to produce

his witnesses: - Rule 8 mentions that if the summons is for the final disposal of the suit,
it shall also direct the defendant to produce, on the day fixed for his appearance, all
witnesses upon whose evidence he intends to relay in support of his case.
Recommendations- Rule 8 of this order emphasizes on producing witnesses on the
specified day before the Court by the defendant to support his claim when the summons
is for the final disposal of the suit. Summons for final disposal of suit directs the
defendant to produce witnesses before the Court to strengthen his claim, which is totally
logical. This rule does not need any fixing in my opinion. 

Rule 9. Delivery or transmission of summons for service: - Rule 9 of the Order deals
with the service of summons by court. It provides that if a defendant resides within the
jurisdiction of the court, then the summons must be served to him by the court officer. It
can also be served by post, approved courier service, etc., but if the defendant does not
live within the jurisdiction, then it must be served by the officer of the court within whose
jurisdiction he resides. In this case, summons is served by Registered post
acknowledgment due, the court will assume the valid service of summons is complete
even if there is no acknowledgement slip. If a person refuses to accept it, the court may
treat it as a valid service.
Recommendations- Appropriate rules or guidelines are to be made to ensure that the
service officers are performing their duty properly without any abuse of power or process
of law. 
Rule 10. Mode of service: - Rule 10 discusses mode of service of summons. Service of
the summons shall be made by delivering or tendering a copy thereof signed by the Judge
or such officer as he appoints in this behalf, and sealed with the seal of the Court.
Recommendations- According to the rule, service of the summons shall be made by
delivering or tendering a copy thereof signed by the Judge or such officer as he appoints
in this behalf, and sealed with the seal of the Court. In my opinion, in any case to ensure
that the summons has been served properly the Court may send it through a registered
post and an acknowledgment purporting to be signed by the defendant or an endorsement
by postal servant that the defendant refused to take the delivery may be deemed by the
Court issuing the summons to be prima facie proof of service.

Rule 11. Service on several defendants: - Rule 11 discusses the process of service of
summons on several defendants. Where there are more defendants than one, service of
the summons shall be made on each defendant.
Recommendations- Rule 11 provides that, if there are several defendants then the
service of summons shall be made on each of them. The purpose of this rule is to notify
every defendant that a suit has been filed against him. This rule doesn’t need any fixing,
in my opinion. 

Rule 12. Service to be on defendant on person when practicable, or on his agent: -

Wherever it is practicable service shall be made on the defendant in person, unless he has
an agent empowered to accept service, in which case service on such agent shall be
sufficient.
Recommendations- This rule provides that, summons shall be made on the defendant in
person and if there is any agent empowered for this job then service on such agent shall
be sufficient. The agent here represents the defendant and whenever the service on such
agent has done then it is to be deemed that the defendant has been served. This rule does
not need any amending, in my opinion. 
Rule 13. Service on agent by whom defendant carries on business: - Service of
summons on any manager or agent by whom defendant carries on business within such
limits, shall be deemed good service and the master of a ship shall be deemed to be the
agent of the owner or character.
Recommendations- This rule mentions that, the service of summons on any manager or
agent who manages the business of the defendant within such limits shall be deemed
good service. This rule also does not need any amending, in my opinion. 

Rule 14. Service on agent in charge in suits for immovable property: - Rule 14
provides that Where in a suit to obtain relief respecting, or compensation for wrong to,
immovable property, service cannot be made on the defendant in person, and the
defendant has no agent empowered to accept the service, it may be made on any agent of
the defendant in charge of the property.
Recommendations- This rule discusses that, in case of any suit to obtain relief respecting
or compensation for wrong to any immovable property, service cannot be made on the
defendant in person and he has no agent empowered to accept the service then the service
may be made on any agent of the defendant in charge of the property. This may be
deemed as a good service. This rule doesn’t need any amending too, in my opinion.

Rule 15. Where service may be on male member of defendant's family: - If in any
suit the defendant cannot be found and has no agent empowered on his behalf, service
may be made on any adult male member of the family of the defendant. A servant is not a
member of the family under this rule. 
Recommendations- This rule provides that when the defendant cannot be found and has
no agent empowered, service may be made on any adult male member of the family of
the defendant. Here it should be added that, the defendant must reside with that adult
male member. If the defendant does not reside with him the service cannot be a proper
service. 

Rule 16. Person served to sign acknowledgement: - This rule discusses that where the
serving officer delivers or tenders a copy of the summons to the defendant personally, or
to an agent or other person on his behalf, he shall require the signature of the person to
whom the copy is so delivered or tendered to an acknowledgement of service endorsed on
the original summons.
Recommendations- this rule provides that, to whom the copy of summons is delivered,
his signature is required to be endorsed on the original summons to prove the
acknowledgement of service. This rule is accurate from the point of view of proving the
service of summons. It does not need any amending, in my opinion. 

Rule 17. Procedure when defendant refuses to accept service, or cannot be found:- If
the defendant or his agent refuses to sign the acknowledgement, or the serving officer,
after using all due and reasonable diligence, cannot find the defendant, who is absent
from his residence at the time when service is sought to be effected on him at his
residence and there is no likelihood of his being found at the residence within a
reasonable time and there is no agent empowered to accept service of the summons on his
behalf, nor any other 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 in
which the defendant ordinarily resides or carries on business or personally works for
gain, and shall then return the original to the Court from which it was issued, with a
report endorsed thereon or annexed thereto stating that he has so affixed the copy, the
circumstances under which he did do, and the name and address of the person (if any) by
whom the house was identified and in whose presence the copy was affixed.
Recommendations- This rule provides that, when defendant refuses to accept service or
cannot be found at the residence and there is no agent empowered on behalf of him, nor
any other person on whom service can be made, the service officer shall affix a copy of
summons on the outer door or any other conspicuous part of the house where defendant
usually resides or carries on business and then the service officer shall return the original
copy of summons with an endorsement stating what he has done and with the address of
the person who witnessed him doing all these. This rule is appropriate, in my opinion.
But the service officer and the person who witnessed all these must be investigated and
questioned properly regarding the service of summons. 
Rule 18. Endorsement of time and manner of service: - The serving officer shall, in all
cases in which the summons has been served under rule 16, endorse or annex, or cause to
be endorsed or annexed, on or to the original summons, a return stating the time when
and the manner in which the summons was served, and the name and address of the
person (if any identifying the person served and witnessing the delivery or tender of the
summons.
Recommendations- This rule provides that, the serving officer must, in all cases submit
a return stating the time and manner of serving summons and the name and address of the
person who witnessed the delivery of summons. This rule makes the serving officer
answer for his work. This rule doesn’t need any amending, in my opinion. 

Rule 19. Examination of serving officer:- Where a summons is returned under rule 17,
the Court shall, if the return under that rule has not been verified by the affidavit of the
serving officer, and may, if it has been so verified, examine the serving officer on oath, or
cause him to be so examined by another Court, touching his proceedings, and may make
such further enquiry in the matter as it thinks fit; and shall either declare that the
summons has been duly served or Order such service as it thinks fit.
Recommendations- According to rule 19, if a summons is returned under rule 17
without being verified by the affidavit of the serving officer or may if it has been so
verified, the Court shall examine the serving officer on oath or cause him to be examined
by another court and may make further enquiry in the matter as it thinks fit and shall
declare that the summons has been duly served. It is very possible that the serving officer
may be corrupted and can make false evidence to show that he has served summons
properly but the enquiry and examination on oath may force the serving officer to do his
job accordingly. This rule also does not need amending, in my opinion. 

Rule 19A. Declaration of service officer: - According to rule 19A, a declaration made
and subscribed by serving officer shall be received as evidence of the facts as to the
service or attempted service of summons.
Rule 19B. Simultaneous issue of summons for service by post in addition to personal
service: - In sub-rule 1 of this section, service of summons by registered post has also
been added along with other service methods enumerated in rules 9 to 19 of this order.
Sub-rule 2 provides that, When an acknowledgement purporting to be signed by the
defendant or his agent is received by the Court or the postal article containing the
summons is received back by the Court with an endorsement purporting to have been
made by a postal employee to the effect that the defendant or his agent had refused to
take delivery of the postal article containing the summons, when tendered to him, the
Court issuing the summons shall declare that the summons had been duly served on the
defendant.
Recommendations- By rule 19B service of summons by registered post has been
introduced. Bangladesh Judicial System should add other method of service of summons
such as Gmail, Fax etc. Use of new technological inventions can reduce the length of
civil cases. 

Rule 20. Substituted service: - Sub-rule 1 & 1A discusses substituted method of service
or special methods of service of summons where the Court has reason to believe that the
defendant is keeping out of the way for the purpose of avoiding service. The Court shall
order the summons to be affixed in some conspicuous place of the Court-house and also
in the house of the defendant where he resided last or the Court can order to service the
summons by an advertisement in a daily newspaper which has circulation in the locality.
Service substituted by order of the Court shall be as effectual as if it had been made on
the defendant personally and the Court shall fix the time for appearance. 
Recommendations- Rule 20 discusses substituted methods of service of summons such
as affixing a copy of summon in a conspicuous part of defendants’ house or by an
advertisement in a daily newspaper of the locality. When the defendant is out of reach,
these substituted methods can be easily used to serve the summons. This rule does not
need any amending, in my opinion. 

Rule 21. Service of summons where defendant resides within jurisdiction of another
Court: - A summons may be sent by the Court by which it is issued, whether within or
without the State, either by one of its officers or by post or by such courier service as
mentioned in sub -rule (4) of rule 9 to any Court (not being the High Court) having
jurisdiction in the place where the defendant resides.
Recommendations- This rule provides that, where the defendant resides within the
jurisdiction of another court or in another state, the summons may be sent to the Court
where he resides. Such court will serve summons on the defendant. In this case, summons
can also be served through email or fax, which can save time and money both for the
Court. The procedure mentioned in the rule is also appropriate. 

Rule 23. Duty of Court to which summons is sent: - The Court to which a summons is
sent under rule 21 shall, upon receipt thereof, proceed as if it had been issued by such
Court and shall then return the summons to the Court of issue, together with the record (if
any) of its proceedings with regard thereto.
Recommendations- The Court to which summons is sent shall proceed as if it has been
issued by such Court. This rule is appropriate and it does not need any amending, in my
opinion. 

Rule 24. Service on defendant in prison: - Where the defendant is confined in a prison,
the summons shall be delivered or sent by post or otherwise to the officer in charge of the
prison for service on the defendant.
Recommendations- This rule is accurate also. The officer in charge of the prison has the
authority to receive the summons as the prisoners cannot accept it directly. This rule does
not need any amending, in my opinion.

Rule 25. Service where defendant resides out of Bangladesh and has no agent: -
Where the defendant resides out of Bangladesh and has no authorized agent in
Bangladesh to accept service, the summons should be addressed to the defendant at the
place of residing and sent to him by post or through courier service, if there is postal
communication between such place and the place where the court is situated.
Recommendations- The summons should be sent to him by post, or courier service, or
fax message, or Electronic Mail Service, or by any other appropriate means. These could
save more time of the Court. 

Rule 26. Service in foreign territory through Political Agent or Court: - Where the
defendant resides in a foreign country, the service of summons may be affected through
the political agent there or a court established there with the authority to serve summons. 
Recommendations- Along with Political Agent or a court with authority, Gmail or Fax
system can also be added to reduce time consumption. 

Rule 27. Service on civil public or on servant of railway officer or on servant of

railway company or local authority: - Where the defendant is a public officer (not
belonging to the armed forces of Bangladesh) or is the servant of a railway company or
local authority, the Court may, if it appears to it that the summons may be most
conveniently so served, send it for service on the defendant to the head of the office in
which he is employed together with a copy to be retained by the defendant.
Recommendations- This rule doesn’t need any amending, in my opinion. 

Rule 28. Service on soldiers, sailors or airmen: - Where the defendant is a soldier,
sailor or airman, the Court shall send the summons for service to his commanding officer
together with a copy to be retained by the defendant.
Recommendations- This rule doesn’t need any amending, in my opinion. 

Rule 29. Duty of person to whom summons is delivered or sent for service: - Under
rule 24, 27 and 28 any person who is liable to serve the summons shall be bound to serve
it and return it with the acknowledgement of the defendant and for some reason if the
service is impossible then it shall be returned with stating those reasons. 
Recommendations- According to this rule, the service by those persons must be done
unless that service is impossible. This rule doesn’t need any amending as it implies
binding upon those people under rule 24, 27, 28 to serve the summons accordingly. 
 Rule 30. Substitution of letter for summons: - A court may substitute for a summons, a
letter of request which may contains all particulars required to be stated in a summons.
This step may be taken by the court keeping in view the office held or position occupied
by the defendant. 
Recommendations- This rule does not need any amending, in my opinion.

Rule 31. Service of summons when completed: - If the Court is satisfied that the
summons has bee. Served by any of the modes as is mentioned in this Order, it shall be
deemed that the summons has been duly served. 
Recommendations- This rule doesn’t need any amending, in my opinion. 

Conclusion

Order 5 of the Code of Civil Procedure, 1908 specifically deals with the issue and service of
summons to the defendant. It provides various rules related to the issuance of summons and their
modes of service. All of these have been discussed in detail in the article. It also provides the
scenario as to what will happen if a person refuses the summons. The defendant has also been
given the opportunity to raise the objections to the summons if any at the earliest or else it will
be waived. But there are many instances where the defendants tend to avoid or ignore the
summons. This further results in delays in court proceedings and the pendency of suit. The law
makers and the courts must look into this issue in order to solve the problem of the pendency of
cases in our country.