Code of Civil Procedure, 1908 (CPC)
Issue and Service of Summons: Sections 27 to 29 and Order V CPC
A court cannot decide against a person who has not been told that he is being sued. The summons is the instrument by which he is told, and Sections 27 to 29 of the Code of Civil Procedure, 1908, with Order V, govern its issue and service. The subject is heavily examined because it combines a clear object, natural justice, with a detailed ladder of modes, from personal service through affixation to substituted service and publication, and because the consequences of getting it wrong reach into Order IX and the setting aside of ex parte decrees. These notes cover the whole scheme.
1. The Object of Summons
§ Sections 27, 28 and 29, CPC 1908 Section 27. Where a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and may be served in manner prescribed on such day not beyond thirty days from date of the institution of the suit. Section 28. Where a summons is to be served on a defendant residing in another State, it shall be sent to the court within whose limits he resides, which shall proceed as if it had been issued by itself, and shall return it with a record of its proceedings. Section 29. Where a summons issued by a civil court in a foreign territory to which the section applies is sent to a court in the territories to which the Code extends, it shall be served as if it were a summons received from a court in those territories. |
The object of summons is the audi alteram partem rule in procedural form: to give the defendant notice of the suit and of the claim, and a fair opportunity to appear and answer. Two consequences follow throughout the Order. The modes of service are not interchangeable but form a hierarchy, each resorted to only when the one before it has failed. And the court's inquiry in every service dispute is functional rather than formal: did the defendant have, or was he deliberately avoiding, the opportunity the summons was meant to give him?
The ladder of modes of service, from personal service to substituted service and publication
2. Issue and Contents of Summons: Order V Rules 1 to 8
i. Rule 1: issue and appearance. Summons is issued to the defendant to appear and answer the claim and to file a written statement within thirty days of service; the summons must be signed by the judge or an authorised officer and sealed with the seal of the court. By the proviso to Rule 1(1), no summons need issue where the defendant has appeared at the institution of the suit and admitted the plaintiff's claim.
ii. Rule 1(2) and (3). The defendant may appear in person, by a pleader duly instructed and able to answer all material questions, or by a pleader accompanied by some person able to answer such questions.
iii. Rule 2: copy of the plaint annexed. Every summons must be accompanied by a copy of the plaint, which is why Order IV Rule 1 requires presentation in duplicate.
iv. Rules 3 to 5: contents and direction. The court may order the defendant or the plaintiff to appear in person; the summons must specify whether it is for settlement of issues only or for final disposal of the suit, a distinction developed in the companion topic; and where it is for final disposal, the defendant must be directed to produce his witnesses.
v. Rules 6 to 8: date and directions. The day for appearance is fixed with regard to the place of residence and allows sufficient time for arrival; the summons directs the defendant to produce documents in his possession on which he relies.
3. Modes of Service: The Ladder
Step one: ordinary service, Rules 9 to 16
Rule 9 provides for delivery of the summons to the proper officer for service, and, as amended in 1999 and 2002, permits the court to direct service by speed post, approved courier service, fax message or electronic mail service, in accordance with rules made by the High Court; where the defendant refuses to take delivery or the acknowledgement is not received within thirty days, the court declares that the summons has been duly served. Rule 10 requires the summons to be delivered or sent to the proper officer or to an approved courier. Rule 12 is the primary rule: service is to be made on the defendant in person, wherever practicable, or on his agent empowered to accept service. Rule 13 deals with service on an agent in suits concerning business or work. Rule 15 allows service, where the defendant is absent from his residence and there is no likelihood of his being found within a reasonable time, and he has no agent empowered to accept service, on any adult member of the family, whether male or female, residing with him, the Explanation making clear that a servant is not a member of the family. Rule 16 requires the serving officer to obtain the signature of the person served on the original summons.
Step two: refusal or absence, Rules 17 to 19
Rule 17 meets the two situations that defeat ordinary service: where the defendant or his agent refuses to sign the acknowledgement, and where the serving officer, after due and reasonable diligence, cannot find the defendant, who is absent with no likelihood of being found within a reasonable time, and there is no agent or adult family member on whom service can be made. In either case the serving officer affixes 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 returns the original with a report. Rule 18 requires the serving officer to endorse the time and manner of service and the name of any identifying witness, and Rule 19 empowers the court to examine the serving officer on oath, or to hold an inquiry, before declaring the service sufficient.
Step three: substituted service, Rules 20 and 20A
§ Order V Rule 20, CPC 1908 (in substance) (1) Where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy in some conspicuous place in the Court house, and also upon some conspicuous part of the house in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit. (1A) Where the Court acts under sub-rule (1), it shall, if it has reason to believe that the defendant is likely to be deterred from appearing, direct an advertisement in a daily newspaper circulating in the locality in which the defendant is last known to have resided. (2) Effected in the manner ordered, substituted service shall be as effectual as if it had been made on the defendant personally. (3) Where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require. |
Three points about substituted service are constantly tested. It is a last resort, available only on the court's satisfaction that the defendant is evading service or that ordinary service is impossible; an order made without recording that satisfaction is bad. Service by publication is not a free-standing mode but a form of substituted service under sub-rule (1A), and the newspaper must circulate in the locality of the defendant's last known residence. And once properly effected, substituted service is as effectual as personal service, which is why a defendant who never in fact saw the advertisement is nonetheless bound, unless he shows the order itself was improperly made.
4. Service Outside the Jurisdiction and Abroad
Situation | Provision | Manner of service |
|---|---|---|
Defendant resides outside the court's jurisdiction but within India | Section 28 and Order V Rule 21 | The summons is sent to the court within whose limits he resides, which serves it as if it had issued from itself and returns it with a record of proceedings |
Service in a Presidency town or another State | Order V Rules 22 and 23 | Sent to the appropriate court, which proceeds as though it had issued the summons |
Defendant resides outside India and has no agent in India empowered to accept service | Order V Rule 25 | Addressed to him at the place where he is residing and sent by post or approved courier, or by fax or electronic mail service, where postal or courier communication exists |
Service through a political agent or foreign court | Order V Rule 26 | Where the Central Government has, by notification, declared the arrangement applicable, the summons is sent for service to the political agent or court concerned |
Summons of a foreign court to be served in India | Section 29 and Order V Rule 26A | Served as if it were a summons received from a court in India, where the foreign court is one to which the section applies |
5. Effect of Improper Service
Improper service is not a technicality, because the entire justification for proceeding in the defendant's absence is that he was told and chose not to come. The consequences run through three provisions.
i. Order IX Rule 6. The court may proceed ex parte only where it is proved that the summons was duly served; where service is not proved, the court must direct a second summons, and an ex parte order made without proof of service is liable to be set aside.
ii. Order IX Rule 13. A defendant against whom an ex parte decree has been passed may apply to have it set aside on showing that the summons was not duly served, or that he was prevented by sufficient cause from appearing. The first proviso adds an important qualification: where the decree is of such a nature that it cannot be set aside as against one defendant only, it may be set aside against all. The second proviso protects the plaintiff: no decree shall be set aside merely on the ground of an irregularity in service, if the court is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear.
iii. Section 13(d). On the international plane, a foreign judgment obtained in proceedings opposed to natural justice, which includes a want of due notice, is not conclusive in India, so defective service abroad has consequences here as well.
§ The two-sided rule on defective service For the defendant: where he genuinely never learnt of the suit, the defect is fundamental, and the ex parte decree is set aside under Order IX Rule 13, because he was denied the very opportunity the summons exists to give. For the plaintiff: where the defendant in fact had notice of the hearing date and sufficient time to appear, a mere irregularity in the manner of service will not undo the decree, by the second proviso to Rule 13. The inquiry is one of substance: was the opportunity given, not was the form observed. |
6. Landmark Judgments on Summons and Service
- Salem Advocate Bar Association v. Union of India (II), (2005) 6 SCC 344. The amended provisions for service, including by courier, fax and electronic mail, are valid, and the model rules commended to the High Courts deal with their operation.
- Order V Rule 20(2) CPC. Substituted service, when effected in the manner ordered, is as effectual as personal service.
- Order IX Rules 6 and 13, with the second proviso. No ex parte proceeding without proof of due service; but no decree set aside for a mere irregularity where the defendant had notice and time to appear.
- Section 13(d) CPC. Proceedings opposed to natural justice, including want of notice, deprive a foreign judgment of conclusiveness.
7. Frequently Asked Questions on Summons
What is the object of a summons under the CPC?
To give the defendant notice of the suit and of the claim against him, and a fair opportunity to appear and answer it. The summons is the procedural expression of the rule that no one should be condemned unheard.
Within what time must summons be issued?
Under Section 27 and Order V Rule 1, summons may be issued to the defendant to appear and answer the claim, and must be served in the manner prescribed, on a day not beyond thirty days from the institution of the suit. The plaintiff must pay the fee and file the copies within seven days of the order for issue.
On whom may a summons be served besides the defendant?
On an agent empowered to accept service under Order V Rules 12 and 13, and, where the defendant is absent with no likelihood of being found within a reasonable time and has no such agent, on any adult member of his family residing with him under Rule 15. The Explanation makes clear that a servant is not a member of the family.
What happens if the defendant refuses to accept summons?
Under Order V Rule 17 the serving officer affixes a copy of the summons on the outer door or a conspicuous part of the house where the defendant ordinarily resides or carries on business, and returns the original with a report. The court may then examine the serving officer on oath under Rule 19 and declare the service sufficient.
What is substituted service under Order V Rule 20?
Service ordered by the court where it is satisfied that the defendant is keeping out of the way to avoid service, or that summons cannot be served in the ordinary way. It is effected by affixation at the court house and at the defendant's last known residence or place of business, and may be supplemented by advertisement in a daily newspaper circulating in that locality. It is as effectual as personal service.
Can summons be served by email or courier?
Yes. Order V Rule 9, as amended, permits service by speed post, approved courier service, fax message or electronic mail service in accordance with rules made by the High Court, and where the defendant refuses delivery or no acknowledgement is received within thirty days, the court declares the summons duly served.
What is the effect of improper service of summons?
The court cannot proceed ex parte without proof of due service under Order IX Rule 6, and an ex parte decree may be set aside under Order IX Rule 13 where the summons was not duly served. But by the second proviso to Rule 13, no decree is set aside for a mere irregularity in service if the defendant had notice of the hearing date and sufficient time to appear.
8. Related Topics in This CPC Series
- Summons for Settlement of Issues and Summons for Final Disposal
- Order IV: Institution of Suits and the Register of Civil Suits
- Recognised Agents and Pleaders under Order III
- Pleadings under Order VI: Rules, Verification and Amendment