Subject: Civil Procedure Code 1908

Article on Summons under CPC

Submitted By

Abhinav Singh Rautela

19FLICDDD02240
BA.LL.B. (Hons.) IV Year (Section D)

Submitted To
Dr. Vivek Kumar
(Faculty in-charge)

SCHOOL OF LAW
FACULTY OF LAW
ICFAI UNIVERSITY, DEHRADUN
INTRODUCTION

The natural justice principle of "Audi Alteram Partem" says that both sides should be heard.
This means that no one should be judged without hearing their side. This basic idea of natural
justice is where the idea of a summons came from.

A summons is a document that the court gives to a person or organization to let them know
that they will be involved in a legal case. After a proper complaint is filed, the court sends a
notice to the other party telling them to come to court and defend themselves.

Both the Code of Civil Procedure, 1908 (CPC) and the Code of Criminal Procedure, 1973
(CrPC) have rules about Summons.

In general, a summons must say why it is being sent, have the Judge's signature and the
Court's seal, give the defendant a date to appear in court, include a copy of the complaint, and
give clear instructions 1.

In a civil suit, there are two sides: the plaintiff, who starts the case, and the defendant, who is
being sued. So, the plaintiff goes to a civil court that has the authority to hear the case and
files a "Plaint" in which he or she makes their case against the defendant.

At this point, the person who is being sued has no idea that he or she is being sued. Now,
because the court is bound by natural justice, it can't decide the case without giving the
defendant a fair hearing. In this case, "summons" are very important. In the simplest terms, a
summons is a legal document given to the defendant by the court that tells him about the case
brought against him and orders him to appear in court to defend himself against the claims.

WHO CANNOT BE SUMMONED:

CPC says that some people cannot be asked to show up in person. So, a summons should not
be given to these people. Rule 19 of Order 16 says that the court cannot serve summons to

1
Patna Law College, “Issue and Service of Summons”, available at:
http://www.patnalawcollege.ac.in/econtent/ISSUE%20AND%20SERVICE%20OF%20SUMMONS.pdf
people who live outside of the court's original jurisdiction. The rule does not apply if a person
lives less than 50 miles from the courthouse or less than 200 miles from the courthouse if
public transportation is available.

Apart from this, section 132 of the CPC says that women who refrain from going out in
public cannot be forced to go to court or be arrested because of their customs. Section 133
says that people who hold constitutional positions do not have to go to court in person. So
neither the court nor the police can call them.

ESSENTIALS:

Order 5 Rule 1 says that any summons must have the signature of the judge and the seal of
the court that sent it. Rule 5 of Order 16 says that when a witness is called as a witness,
details like the date and time the witness is expected to show up must be given. Along with
these things, the summons should also say why the witness is being asked to show up, such as
to give testimony, produce a document, or do both. If the witness is being asked to bring in a
certain document, the name and details of the document should also be written in the
summons.

SUMMONS OUTSIDE THE JURISDICTION OF THE COURT:

A court cannot call someone to court if they do not reside in its area. In that case, Order 5
Rule 21 says that the court can send the summons to a court that has jurisdiction over the
person's home through a court officer or by other means, like the mail or postal service. Then,
Rule 23 says that the summons can be served by the court to which it is sent.

Section 31 of the CPC says that Sections 27, 28, and 29 can also be used to call witnesses to
court. Whereas Section 28 on service of summons outside the State says that the summons
must be sent to a court with jurisdiction in the other State and it must be done according to
the rules in the transferee State. A summons can be given by this kind of court, and a
translation can also be made. Under Section 29, a foreign summons issued by a court in India
that is not part of the CPC, a court outside of India that is under the control of the Central
Government of India, or a court that has been notified by the Government in the official
gazette can be sent to a court under the CPC for service.

UNDERSTANDING RELEVANT PROVISIONS WITH ILLUSTRATION

Sachin, who is the plaintiff, files a lawsuit against Jack, who is the defendant. Now, the court
will send Jack a summons within 30 days of the date Sachin filed his claim, asking him to
show up and write a response, if he has one, to Sachin's claim2.

But he needs to file his written statement within 30 days of getting the summons.

This 30-day period can be lengthened to 90 days and then to 120 days, as long as Jack has a
good reason3. Rule 1 of Order V talks about issuing a summons on a "duly instituted suit."
This means that before issuing the summons to the defendant, the court has to make sure that
the suit was filed in accordance with the relevant parts of the CPC or other governing law (s).
In my experience, most civil judges don't even bother to read the contents of the complaint
before issuing a summons, let alone check to see if the suit was filed properly. So, the first
thing lawyers should make sure of before bringing a case to court is that it doesn't have any
flaws that could make it look like it wasn't properly started. It's the judge's job to make sure
the case is valid before sending a summons to the defendant, and if there seems to be a
problem with the case, the plaintiff should fix it before the summons is sent.

When Jack gets the summons, it will come with a copy of the complaint. Rule 2 of Order V
says that a summons in the name of the defendant must be accompanied by the plaint or, if
the court allows it, a short statement. Most of the time, this requirement is not really met
either. A ruling from the honorable Lahore High Court backs up my opinion that the judge
issuing the summons should also tell the office that the summons should come with a copy of
the plaint. The summons will also say when to show up, and the date should be set after
taking into account things like how far Jack lives and how long it will take to deliver the
summons.4

In most cases, Jack will not have to go to court in person. Instead, he can send his lawyer to
represent him.
2
S. 27, Civil Procedure Code, 1908
3
Order V Rule 1
4
Order V Rule 6.
But if the court thinks so, it could order Jack to show up in person5.

As long as Jerry lives between 50 and 200 miles from the courthouse, he can show up in
person.6

If Jack doesn't answer the court's summons and doesn't do what it says, the court could
punish him in a number of ways, such as issuing a warrant against him7. Also, the court can
ask Jack or Sachin at any time to bring any document, affidavits, or other proof that it thinks
is important to the case.8

Talking about how Jack will get these summonses. There are two possible
outcomes;

If Jack lives in the same area as the court where Sachin filed the suit, that court will send the
summons to Jack through a court-approved courier service or one of its own employees9. If
Jack lives outside of the court's jurisdiction, the court will send a summons to the court where
he lives, and that court will give it to him10.

If Sachin's Complaint lists any other Defendants, each of them will get a separate summons11.
Sachin will pay for the cost of getting the summons to the defendant, Jack (Plaintiff). When
Jack (or his agent) gets a copy of the summons, he or she must sign it and give it to the
officer who is serving it.

If Jack refuses to sign or no one knows where he is, the serving officer will put a copy on the
outside of his home or place of work and return the original summons to the court with an
explanation of why the copy was put there12. Extending the rule mentioned above will also
count as Substituted Service 13. Rule 20 lists a few ways that substituted service can be
done, but most of the time, the courts pass the order of substituted service by putting it in the
newspaper.
5
Order V Rule 3.
6
Order V Rule 4
7
Section 32, Civil Procedure Code, 1908.
8
Section 30, Civil Procedure Code, 1908
9
Order V Rule 9
10
Section 28, Order V rule 21, Order V rule 23.
11
Order V Rule 11
12
Order V Rule 17
13
Order V Rule 20,21.
If we look at Rule 20(1)(e), it is clear that the law requires the publication of summons (as
described in Rule 5) in the newspaper. However, when a civil court issues an order for
substituted service, the summons is never published. Instead, a simple notice is sent to the
defendant that a case is going on and that he or she needs to show up on a certain date. Such a
notice can in no way be seen as service of summons. As a result, starting an ex parte
proceeding after sending such a notice cannot be seen as a legal proceeding.

Substituted service is when a summons is given in a way that is different from how it is
usually given. Order V rule 20 says that in order to order substituted service, it must be
shown that the respondent/defendant is staying out of the way to avoid service or that the
summons cannot be served in the usual way for some other reason. The substituted service
works just as well as personal service, and the law says that the defendant has been properly
served. The court will set a time for the defendant to come to court and give him a fair chance
to do so.

In Satish Corporation Company v. Allahabad Bank 14, it was said that before making an
order under Order V Rule 20, the court must be sure that the defendant was staying out of the
way to avoid service or that the summons could not be served in the usual way for some other
reason.

In Sunil Poddar v. Union Bank of India 15, the Court said that if a summons was published
in a newspaper, the person being served cannot say that they do not read that newspaper.

In Prabhun Ram Pukhan v. State of Assam16, it was decided that a procedural error in the
service of notice would not be bad in law, and any action that followed would be upheld,
unless the defendant could show that the procedural error caused him serious harm.

For example, A got a court order for substituted service by telling the court that B had been
avoiding service. This was a lie. In this case, substituted service is considered to have the
same effect as personal service on the defendant, and it is valid unless the defendant can
prove that it hurt him in some way.

CONCLUSION:
14
AIR 1999 MP 21
15
AIR 2008 SC 1006.
16
(2015) 2 SCC (Civil) 331.
In their rules and policies, the courts and procedural laws have set out the right way to serve a
summons. In addition to the old ways, the Courts have now agreed that WhatsApp is also a
way. In order to serve summonses, the Courts have found a completely new use for digital
tools.

In the case of Central Electricity Regulatory Commission vs. National Hydroelectric

Power Corpn. Ltd. & Ors. the Hon'ble Supreme Court of India said that notices can also be
sent by E-mail in commercial litigation and in cases where lawyers need urgent interim
reliefs. In order to speed up the summons process, the Courts have added "electronic means"
to their own rules.

In KSL & Industries Ltd v. Mannalal Khandelwal & State of Maharashtra 17, the
Bombay High Court said that a lot of time is spent on service of summons because of how
often the accused try to avoid them. The Court said that all services that make sense should
be used. For the repeated summons to be served, they must be sent using methods like email.
In Tata Sons Limited & Ors v. John Does & Ors, the Delhi High Court said that the
plaintiffs could serve the defendants by text message, WhatsApp, email, and other ways. But
it's important to find out if these electronic means, especially WhatsApp, could replace the
"regular model" in a good way. If not, they will help in the rare cases where defendants are
hiding and trying to avoid going to court.

17
Criminal Writ Petition No. 1228 of 2004