SERVICE OF SUMMONS AND EXEMPTIONS

    Whenever any suit is filed by the plaintiff then the defendant must be informed about such a suit that has been filed against him by the plaintiff, so that he can appear before the court to defend the allegation made by the plaintiff. The court will send an intimation to the defendant which comes to be  known as Summons. It can be defined as a document that is issued by the court for calling the person to whom it is directed to attend before a judge or office of the court for a certain purpose.

    THE OBJECT OF ISSUING SUMMONS

    The objective of the court behind issuing a summons is that whenever a plaintiff files suit for relief against the defendant, the defendant must get an opportunity to defend oneself. As the basic principle of natural justice implores that no one can be condemned unheard. Hence, in case the defendant is not served with the summon then the decree passed against him by the court will not bind him.

    EXEMPTION FROM PERSONAL APPEARANCE

    The Code provides for a provision through which a person can be exempt from personal appearance in court. According to Order V Rule 4 of the Code, no party can be ordered to appear in person:

    1. Until or unless he or she resides: 
      1. Within the local limits of the court’s original jurisdiction.
      2. Outside the limits of the courts but at a place less than-
        1. 50 miles.
        2. 200 miles from the courthouse but where the public conveyance is available.
    1. Women not appearing in public according to the customs[1],
    2. Entitled to an exemption under the code.

    DIFFERENT MODE OF SERVICE OF SUMMONS

    The service of summons holds great importance because it is the fundamental rule of the procedural law that a defendant party must receive reasonable notice of the legal proceedings which is initiated against the defendant .[2] 

    There are mainly five principal modes of serving summons to the defendant according to the Code and they are as follows: 

    PERSONAL SERVICE

    This mode is an ordinary mode of service of summons. Personal service is also known as direct service. Rules 10 to 16 of Order V of the Code deals with the service of summons. Moreover, there are some principles which must be considered and they are as follows:

    • The summons must be served to the defendant in person or to his authorized agent. 
    • In case the defendant is not present in his house and there is no likelihood of him being found in near time at his residence. Also if the defendant has no agent then the summons may be served to any adult member of his family who resides with him.
    • If a suit is related to any kind of business or work against a person who does not reside in the territorial jurisdiction of the court which is issuing the summon then in such a situation it can be served to his manager or his agent.
    • If the suit is filed for immovable property and the summons cannot be served personally to the defendant and also he has no authorized agent then in such condition the summon can be served to the agent of the defendant who is in charge of that property.
    • In the case of more than two defendants, the summons should be served to each defendant.

    SERVICE  BY COURT

    The defendant who resides in the jurisdiction of the court is served summons by the officer of the court or by courier service. Moreover, summons can also be served to the defendant through any registered post, speed post, acknowledgement due, courier service, fax, message, email service, or by any other means. In case the defendant does not reside in the court’s jurisdiction then in such a situation the officer of the court within whose jurisdiction the defendant resides will serve the summon. It must be noted that in case the defendant refuses to accept the summons then in such a situation the court will treat it as a valid service. When a summons is properly addressed, prepaid, and duly sent by registered post, acknowledgment due then in such circumstance it is assumed as a valid service even if the acknowledgment slip is not present. Along with that, the plaintiff is also allowed to serve as a summon to the defendant. 

    The high court is also required to make an appropriate rule and provide direction to ensure that the provision is implemented effectively and there must not be an abuse of the process of law.[3]

    https://legalreadings.com/concept-of-judicial-separation-under-hindu-law/

    SERVICE BY PLAINTIFF

    According to rule 9A of Order V, the court may also allow the plaintiff to serve summons to the defendant.  

    SUBSTITUTED SERVICE

    There are also some other means of serving summons to the defendant which is separate from ordinary mode and they come under the category of substituted service. Under substituted service, there are two modes and they are as follows:

    • (i) when the defendant or his agent refuses to sign on the acknowledgment;

               (ii) when the defendant is not present at the time of service and no likelihood of the defendant is                        also present. The serving officer, after due and reasonable diligence, is unable to find the                             defendant or his agent or any other person then service of summon can be done by affixing a                        copy on the door of the defendant or some other conspicuous part of the house of the                                   defendant where he normally resides or carries on his business or personally work for gain.  

    • When the court is satisfied that the defendant may avoid service or because of some other reasons the summons cannot be served to the defendant through ordinary ways than in such situation the service may be done in the following ways: 

    (i) Firstly, a copy of summons can be affixed in a conspicuous place in the court or house where the defendant later resided or carried on business or personally worked for gain,

    (ii) Secondly, as the court thinks fit. 

    It must be noted that the substituted service is not a regular mode of service which is used by the court for the service of summons and hence it must not be allowed normally but this method can be used only as a last resort. 

    SERVICE BY POST

    When the court receives an acknowledgment which is signed by the defendant or his agent or the defendant and his agent rejects to accept the delivery of the summons then in such situation the court which is issuing the summons will consider it as the summons had been duly served to the defendant.[4] This principle is also applied, when the summons is  properly addressed, prepaid, and duly sent by registered post, acknowledgment due. In case a summon which is sent through a registered post is returned with a refused endorsement then the burden falls upon the defendant to prove that the refused endorsement is false.

    SERVICE OF SUMMONS IN SPECIAL CASES

    Other then the above-mentioned services, there is also some special case where summons is served to the defendant and these special situations are as follows:

    1. If the defendant resides in a different jurisdiction or a different state then the summons is sent to the court of that jurisdiction where the defendant resides and then that court will serve the summons. 
    2. In case of serving a foreign summons, it may be sent to the courts of those territories where the provisions of this code apply and served as if they were a summons issued by such courts. 
    3. If the service of summon is to be within the presidency town of Bombay, Madras, or Kolkata then in such condition it may be sent to the court within whose jurisdiction it is required to be served. 
    4. If the defendant resides outside India and he has no authorized agent in India to accept the summons then the summons should be addressed to the place where the defendant is residing and should be sent through the post, courier service, fax message, mail, or through any other appropriate means.
    5. In case the defendant resides in a foreign country then the summons may be sent through the political agent present there or through a court which is established there and also has authority to serve the summons.
    6. If the defendant is a public officer or is a servant of railways or local authority except for Indian military, Naval, or Air forces then in such case the summons may be served to the departmental head in which he is employed.
    7. In case the defendant is a soldier, sailor, or airmen then the court is required to send the summons to his commanding officer.
    8. If the defendant is a prisoner then the summons is served to the officer in charge of the prison.
    9. In case a corporation is the defendant then the summons may be served to the director, secretary, or any principal officer of the corporation. Summons can also be served by sending a post to the registered office address of the corporation and if there is no registered office then the summons may be sent to the place where the corporation carries on its business.
    10. In case the defendants are partners in any firm then the summons can be served to anyone or more than one partner. It can also be served to any person who controls the business at its principal place in India.  But in case the partnership firm gets dissolved before the plaintiff institutes a suit and the plaintiff is aware of that fact then in such a situation the summons will be served to each person who is held liable in India.
    11. There is also a substitute of summons which is the letter of request that contains all the particulars mentioned in a summons. The court prefers this method keeping in mind the office held or position occupied by the defendant.

    CONCLUSION

    The service of the summons and the discourse it takes is a very important reason behind the delay in the progress of the suit. In the present scenario, the defendants try to avoid the service of summons. Hence, the Law Commission considering the issue felt that there is a requirement of certain amendments. It was necessary to provide direction and the defendant can be served by a plaintiff or through modern means of communication. Accordingly, amendment was made in the Code in 2002 in rule 1(Summons), rule 9(delivery of summons by the court), etc., of Order V.

    REFERENCES

    [1] The Code of Civil Procedure, 1908, s.132.

    [2] Salem Advocate Bar Assn. v. Union of India, (2005)6 SCC 344.

    [3] Id.

    [4] Puwada Venkateshwar v. Chidamana Venkata, (1976)2 SCC 409.


    BY RUMA MINJ | INDIAN INSTITUTE OF LEGAL STUDIES

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