Summons under Order 5, CPC 1908 | Explained

Meaning and Object

Section 27 – 29 and Order V of the civil procedure code, 1908 deals with the procedure of service of summons.

A summon is a legal document issued by a court on a person involved in a legal proceeding, requiring him to appear and defend the claims made by another person against him within 30 days. Summon as such is not expressly defined under any provision of the code.

Summons is a document that is used just to intimate the person of him being involved in a suit. It acts as an opportunity to the defendant, to appear in the court of justice and say against the prayer made by the plaintiff. This opportunity cannot be taken from the defendant as it is in harmony with the principle of natural justice (Audi alteram partem) and any decree so passed against him will not be binding upon him, if the summons were not duly served.

The service of summon to the defendant, after the institution of the suit also ensure a fair trial.

Essentials and Forms

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 plaint.[1]

Every summons should be in the forms as prescribed in appendix B to the first schedule of the code. A summon should state the title of court, name, description and place of residence, name of person instituting suit, purpose, date and time for appearance.

It shall state that, in case of failure to appear, suit will be heard and determined ex-parte.

Defendant to Appear

On the given date, defendant has to appear before the court issuing summons. Defendant may appear in person or by a pleader.[2]

Contents of Summons

Rule 5 to 8

The court shall determine whether the date fixed is for settlement of issues only or for final disposal of the suit and should contain direction regarding that.[3] If it is for the final disposal of the suit then defendant should be directed to produce his witness.[4] The court would also specify fixed time as to allow the defendant with sufficient time to appear and answer the claims made by the plaintiff against him.[5]

The summons should also contain an order to the defendant to produce all documents or copies thereof in his possession or power upon which he intends to rely on in support of his case.[6]

Modes of Service of Summons

Issue of summon and delivery of summon are different. When the court drafts the summoning document and it is signed by the judge and handed over to the court official for its delivery, it is called the issue of summons. On the other hand, when the summon is taken to the person who is being summoned either by the court officer himself or through any other means, it is called service of summons. If it is accepted by the person, the service is complete but if he doesn’t receive it for any reason, the service is attempted but failed.

Delivery of Summons by Court

Whenever defendant resides within the jurisdiction of court or his agent who is empowered to accept the service, summons shall be served by the proper officer of the court or by courier approved by the court.[7]

On application, the court may also permit service of summons to be effected by the plaintiff, in addition to the service of summon by the court.[8]

Personal or Direct Service

Personal services of summons are dealt in Rule 10 to 16 and 18 of order 5. In all the situations which are mentioned below, service of summons shall be made by delivering or tendering a copy thereof.[9] When summons are personally delivered or tendered to defendant, then the serving officer shall ask him to sign acknowledgement.[10] After this the serving officer will endorse an original summon, stating time when, manner in which the summon was so served, also including the name and address of the person witnessing the delivery and tendering of summons.[11]

Cases in which summons are personally made:-

1. Whenever it is practicable service shall be made in person to the defendant, unless he has an agent empowered to accept service.[12]
2. Where the defendant is absent from his residence and there is no likelihood of him being found within a reasonable time, then it can be served to any adult member of his family.[13] Explanation of this rule specifically excludes servants.
3. Where there is more than one defendant then service should be made to each one of them.[14]
4. Service of summons can be made to the agent of the defendant, if he doesn’t reside within the jurisdiction of the court.[15]

Substituted Service

Substituted services are those modes of service which are practiced in place of traditional or ordinary mode.

Under rule 17 of this order, the service is affected without an order of the court by affixing a copy of summons on the house of the defendant and original summons to be returned to the court. This rule also states the ground when the serving officer can opt for substituted service

• Where the defendant/ agent refuses to sign the acknowledgement.
• Serving officer can’t find the defendant after using all the due and reasonable means.
• Or he is absent from his residence.

When the original summons are returned, the court may verify the serving officer on oath, may make further enquiry if it thinks fit, and shall declare the summons to be served or may order for fresh summons.[16]

Commissioner of Income Tax, West v. Ramendra Nath Ghose[17], in this case the service was affected by affixture by the inspector of income tax but in his report he did not mentions the names and address of the person who identified the place of business of the assessed nor did he mention in his affidavit, so submitted, that he has the personal knowledge of the same. The SC held that the service of notice was not in accordance with law.

If the court is satisfied that the defendant is knowingly avoiding the service, then it can order the summons to be affixed to some conspicuous part of the court house/ or at defendant’s house.[18]

It can also order service by advertisement in a daily newspaper circulating in the defendant’s locality.[19]

Substituted service shall be as effectual as if it was made personally.[20]

Service of Summons in Special Circumstances

RULES UNDER ORDER 5	SERVICE ON DEFENDANT	SERVICE OF SUMMONS MADE ON DEFENDANT BY
Rule 24	Who is in prison	Officer in charge of prison
Rule 27	Who is civil public officer or an servant of railway company or local authority	To the head of the office
Rule 28	Who is a soldier, sailor or airmen	To his commanding officer

The person, who is so delivering the summons, shall be bound to serve it and should return it under his signature with written acknowledgement of the defendant. [21]

New Modes of Service of Summons

Service my Email

In central electricity regulatory commission v. national hydroelectric power corporation ltd.[22] Supreme court of India gave assent to the service of notice via email but in addition to the copy of the notice to be sent through post.

In KSL industries v. state of Maharashtra[23], the Bombay high court held that summons can be served by using practical modes which also include service of through emails, to avoid delay in legal proceeding because of un-served summons.

Also in Indian bank association and ors v. union of India[24] , summons through email was permitted.

Service through WhatsApp

Whatsapp is one of the popular messaging platforms widely used all over the world. It can prove to be the fastest and easiest way to serve summons when it couldn’t be served through ordinary modes.

In TATA Sons v. Jhon Doe[25], Delhi High Court permitted the defendant to serve summons via whatsapp text as well as by email.

In Kross Television India Pvt Ltd v. Vikhyat Chitra Production and Ors[26], J. Gautam patel of Bombay high court also permitted summons through whatsapp, if normal attempt to serve it fails.

In another case, Bhim Rathke v. Mr. R.K. Sharma,[27] special judge of patiyala house court, new delhi, rejected the use of whatsapp and email as a mode for serving summons. The court also said that the court system doesn’t have the means to effect the service through electronic means.

This shows that serving of summons through email and whatsapp is totally based on discretion of the court and it is treated as last resort when ordinary mode fails. A fully fledged reliance is not given to these means.

In a suo moto writ petition, a bench comprising Chief Justice S A Bobde and Justices R Subhash Reddy and A S Bopanna passed the order on the plea filed by Attorney General K K Venugopal in the case.

“service of notice, summons and exchange of pleading/document is a requirement of virtually every legal proceeding. Service of notice, summons and pleadings etc. has not been possible during the period of lockdown because this involves visits to post office, courier companies or physical delivery of notice, summons and pleadings. We, therefore, consider it appropriate to direct that such services of all the above may be effected by email, FAX, commonly used instant messaging services, such as WhatsApp, telegram, signal etc.”[28]

Service through WhatsApp, a double tick was considered that summons are served to the recipient.

Advantage

Whatsapp and emails are popular means of communication used all over the world. It has widened the scope and has expanded the ambit of electronic media. As compared to the ordinary mode of service of summons these modes will be instant and time-saving, cost-effective, generate instant records for future reference.

Disadvantage

There are many disadvantages as well. There are many hacked version of these applications also which allows the user to hide their identity. These applications also give users the option to even hide the delivery of a message even after they have read it. People can also take the help of techno experts. Here, the scope for evading the summons is higher. This mode must be kept as last resort.

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[1] Or. 5 R. 1(3).

[2] Or. 5 R. 1

[3] Or. 5 R. 5

[4] Or. 5 R. 8

[5] Or. 5 R. 6

[6] Or. 5 R. 7

[7] Or. 5 R. 9

[8] Or. 5 R. 9-A

[9][9] Or. 5 R. 10

[10] Or. 5 R. 16

[11] Or. 5 R. 18

[12] Or. 5 R. 12

[13] Or. 5 R. 15

[14] Or. 5 R. 11

[15] Or. 5 R. 14

[16] Or. 5 R. 19

[17] Commissioner of Income Tax v. Ramendra Nath Ghose, 1971 82 ITR 888 SC.

[18] Or. 5 R. 20(1)

[19] Or. 5 R. 20(1A)

[20] Or. 5. R. 20(2)

[21] Or. 5 R. 29

[22] Central electricity regulatory commission v. national hydroelectric power corporation ltd, (2010) 10 SCC 280

[23] KSL Industries v. State of Maharashtra, criminal writ petition no. 1228 of 2004.

[24] Indian bank association and Ors v. union of India, (2014) 5 SCC 590.

[25] TATA sons v. Jhon doe, CS (COMM) 1601/2016.

[26] Kross television India Pvt. Ltd. v. Vikhayat Chitra production, 2017 SCC online Bom 1433.

[27] Bhim Rathke v. Mr R.K. Sharma, cr. Revision no. 16/2018

[28] Supreme court, Suo moto writ petition (C) no. 3/2020, (dec 26, 2020 7:55 PM), Available Here

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