Summons to Defendants under the Civil Procedure Code, 1908: A Comprehensive Guide

The Civil Procedure Code, 1908 (CPC) lays down the procedural framework for civil litigation in India. A fundamental aspect of this framework is ensuring that the defendant is duly notified about the suit filed against them, allowing them the opportunity to defend their interests. This notification is achieved through the issuance and service of a summons. This article provides a detailed overview of the provisions relating to summons to defendants under the CPC, focusing on its purpose, content, modes of service, and consequences of non-compliance.

Purpose of a Summons

The primary purpose of a summons is to inform the defendant that a suit has been instituted against them in a particular court and to direct them to appear and answer the claim on a specified date. This ensures that the defendant has an adequate opportunity to present their case and defend themselves. The principles of natural justice, particularly the audi alteram partem rule (hear the other side), are intrinsically linked to the requirement of proper summons. Without a valid summons, the defendant would be unaware of the proceedings, rendering any judgment against them liable to be challenged.

Essential Content of a Summons (Order V, Rule 1 CPC)

Order V, Rule 1 of the CPC specifies the essential contents of a summons. It must:

• Be in writing: The summons must be a written document.
• Be signed by the Judge or an officer appointed by the Court: The summons must bear the signature of the presiding judge or a designated officer of the court, lending it authenticity and official sanction.
• Bear the seal of the Court: The court's official seal must be affixed to the summons, further validating its authenticity.
• Require the defendant to appear and answer the claim: This is the core purpose of the summons. It must clearly state that the defendant is required to appear before the court to respond to the plaintiff's claim.
• Specify the date, time, and place of appearance: The summons must explicitly mention the date, time, and location where the defendant is required to appear. This allows the defendant to plan and prepare their defense.
• Direct the defendant to produce documents: If the plaintiff has relied on any documents in their plaint, the summons may direct the defendant to produce any relevant documents in their possession or power at the time of their appearance.
• Be accompanied by a copy of the plaint: The summons must be accompanied by a copy of the plaint (the plaintiff's statement of claim). This allows the defendant to understand the nature of the allegations against them and prepare an appropriate defense.

Modes of Service of Summons (Order V CPC)

The CPC prescribes various modes of serving a summons to ensure that it reaches the defendant and they are duly informed of the suit.

1. Personal Service (Order V, Rules 12-16 CPC):

This is the most preferred method of service. It involves handing the summons directly to the defendant.

• Rule 12: The summons must be served on the defendant personally, wherever it is practicable.
• Rule 15: If the defendant cannot be found, service may be made on any adult member of the defendant's family who is residing with them. This is considered good service, but specific conditions must be met. The adult member must be residing with the defendant, implying a common household. A relative merely visiting is not sufficient.
• Rule 16: If the serving officer cannot find the defendant and there is no person on whom service can be made, the officer must 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. The officer must then return the original summons to the court with a report stating the circumstances under which the affixation was done.

2. Service by Court (Order V, Rule 9 CPC):

The court may directly serve the summons to the defendant through its own officers or by post.

• Rule 9: Where the defendant resides within the jurisdiction of the court in which the suit is instituted, or has an agent residing within that jurisdiction who is empowered to accept service of the summons, the summons shall ordinarily be served by one of the officers of the court or by such other person as the court may direct.
• Service by Post (Order V, Rule 9A): The court may, in addition to other methods of service, direct that the summons be served by registered post, acknowledgement due. If the acknowledgement purporting to be signed by the defendant or their agent is received, the court shall declare that the summons has been duly served on the defendant. If the summons is returned unserved with an endorsement that the defendant has refused to take delivery of the summons, the court may declare that the summons has been duly served on the defendant.

3. Substituted Service (Order V, Rule 20 CPC):

This mode is resorted to when the defendant is evading service or cannot be served in the ordinary way.

• Rule 20: 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 thereof in some conspicuous place in the court-house, and also upon some conspicuous part of the house (if any) 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. This is known as substituted service.
• Newspaper Publication: The court may also direct publication of the summons in a newspaper that is widely circulated in the locality where the defendant is known to reside or carry on business.
• Effect of Substituted Service: Substituted service is as effective as personal service, provided the court is satisfied that the defendant was genuinely attempting to evade service or that service could not be effected through ordinary means.

4. Service on Defendant Residing Outside India (Order V, Rules 25-30 CPC):

Specific rules apply when the defendant resides outside India and does not have an agent within India authorized to accept service.

• Rule 25: Where the defendant resides outside India and has no agent in India empowered to accept service, the summons shall be addressed to the defendant at the place where they are residing and sent to them by post, if there is postal communication between such place and the place where the court is situate.
• Through Diplomatic Channels: The court may also direct that the summons be served through diplomatic channels, in accordance with the laws and procedures of the foreign country where the defendant resides.

5. Service on a Corporation (Order V, Rule 13 CPC):

Service on a corporation may be effected by serving the summons on the secretary, or any director, or other principal officer of the corporation, or by leaving it at the registered office of the corporation.

6. Service on a Partner (Order XXX, Rule 3 CPC):

Service on a partner in a firm may be effected by serving the summons on any one or more of the partners, or at the principal place at which the partnership business is carried on.

Consequences of Non-Appearance After Service of Summons

The consequences of a defendant's failure to appear in court after being duly served with a summons are significant.

• Ex Parte Decree (Order IX, Rule 6 CPC): If the defendant fails to appear on the date fixed for their appearance, and the court is satisfied that the summons was duly served, the court may proceed to hear the suit ex parte (in the absence of the defendant) and pass a decree against the defendant.
• Setting Aside an Ex Parte Decree (Order IX, Rule 13 CPC): The defendant may apply to the court to set aside the ex parte decree if they can show sufficient cause for their non-appearance. Sufficient cause might include illness, accident, or any other unavoidable circumstance that prevented them from attending court.
• Conditional Order: The court may set aside the ex parte decree on such terms as to costs, payment into court, or otherwise as it thinks fit, to compensate the plaintiff for the delay and inconvenience caused by the defendant's non-appearance.

Important Considerations

• Affidavit of Service: The serving officer is required to file an affidavit confirming the manner and date of service of the summons. This affidavit serves as evidence of service before the court.
• Limitation: The summons should be served within a reasonable time after the institution of the suit. Undue delay in serving the summons may prejudice the plaintiff's case.
• Amendment of Summons: The court has the power to amend the summons if necessary, to correct any errors or omissions, provided that the amendment does not alter the fundamental nature of the suit.
• Waiver of Service: A defendant may waive the requirement of formal service by voluntarily appearing in court and submitting to its jurisdiction.
• Verification of Address: It is crucial for the plaintiff to provide the correct and complete address of the defendant to ensure effective service of the summons.

Conclusion

The issuance and service of summons are critical steps in civil litigation. Proper service ensures that the defendant is informed of the suit against them and has an opportunity to defend themselves, upholding the principles of natural justice. The CPC provides a detailed framework for the issuance and service of summons, covering various scenarios and ensuring that justice is served fairly and equitably. Understanding these provisions is essential for both plaintiffs and defendants in civil suits. Failure to adhere to these procedures can have serious consequences, potentially leading to an ex parte decree or the dismissal of the suit. Therefore, careful attention should be paid to the requirements and procedures outlined in the CPC regarding the summons to defendants.