Civil Procedural
Civil Procedural
code
code
Topic-summons
Topic-summons
BYBY RONARONAKK BHANDBHANDARIARI B
Service of summons- how, what and why?
A summons provides legal notice to a party about a lawsuit. It is the
first official notice that a defendant receives to notify him or her that he or she is being sued. In some instances, the summons may
specify a specific court date, but in others, it does not.
Who Receives the Summons?
The defendant, the person being sued, receives the summons. The summons serves as legal notice of a pending court case.
Essentials of summons
Very summon should be signed by the judge or such officer appointed by
him and shall be sealed with seal of the court,and must be accomplished by a plaint.
Forms of summons
Every summon should be in form prescribed in Appendix B to the (first)
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 the manner prescribed, [on such day not beyond thirty days from the date of the institution of the suit].
Where a suit has been duly instituted by filing a plaint, the first duty of the court
is to issue a summons calling on the defendant to appear and answer the claim on a day specified therein either in person or by a pleader duly instructed or accompanied by some person able to answer all material questions.
The only exception is where the defendant appears on the presentation of the
plaint and admits the plaintiff’s claim; and in that case no such summons shall be issued. Every such summons shall be signed by the Judge or such officer as he appoints, and shall be sealed with the seal of the court.
Where a summons has been issued, the Court may direct the defendant to file
the written statement of his defence, if any, on the date of his appearance and cause an entry to be made to that effect in the summons. (S. 27 and Order V, Rule 1).
Exemption from appearance in people: Section 132-33;rule 4
132. Exemption of certain women from personal appearance.- (1) Women
who, according to the customs and manners of the country, ought not to be compelled to appear in public shall be exempt from personal
appearance in court.
(2) Nothing herein contained shall be deemed to exempt such women from arrest in execution of civil process in any case in which the arrest of women is not prohibited by this Code.
133. Exemption of other persons.- (1) The following persons shall be entitled to exemption from personal
appearance in court, namely; —
(i) the President of India; (ii) the Vice-President of I ndia;
(iii) the Speaker of the Houses of the People; (iv) the Ministers of the Union;
(v) the Judges of the Supreme Court;
(vi) the Governors of States and the A dministrators of Union Territories; (vii) the Speakers of the State Legislative Assemblies;
(viii) the Chairman of the State Legislative Councils; (ix) the Minister of States;
(x) the Judges of the High Courts; and
(xi) the persons to whom section 87B applies.
(2) Sub-section (2) omitted vide Act 66 of 1956
(3) Where any person claims the privilege of such exemption and it is consequently necessary to examine
him by commission, he shall pay the costs of that commission, unless the party requiring his evidence pays such costs.
Provision of Service of Summons in the
CPC- 1. Section 27 and Order 5 of the Code of Civil Procedure deals with the
service of summons to defendant.
2. As per section 27 the summons may be served on such day not beyond
thirty days from the date of the institution of suit. Now you should look at the provisos of Order 5 Rule 1 of CPC. No such summons shall be issued when a defendant has appeared at the presentation of plaint and admitted the plaintiff's claim. So in order to attract this proviso the defendant must appear and as well as admit the claim
Mode of service of
summons- 1. A Magistrate issuing a summons to an accused or a witness may direct a
copy of summons to be served at the place where such accused or witness ordinarily resides or carries on business or personally works for gain, by speed post or by such courier services as are approved by a Court of Session.
2. Where an acknowledgment purporting to be signed by the accused or
the witness or an endorsement purported to be made by any person authorized by the postal department or the courier services that the accused or the witness refused to take delivery of summons has been
received, the Court issuing the summons may declare that the summons has been duly served.
SERVING SUMMONS IN
INDIA- B.1. Service by Publication:
If a person cannot be found, some jurisdictions allow service by publication, which
typically involves printing the legal notice in the local newspaper for a specified number of days. Service of process on a foreign defendant who l ives in another country must satisfy all the requirement of an international agreement called the Hague Service Convention
B.2.Substituted service:
In many jurisdictions, service of process may also be accomplished through substituted
service if the party to be served is unavailable. With substituted service, the legal documents may be left with a third party, such as a spouse or employer. Substituted service can also be done through the use of certified mail, which provides a mailing
receipt and a record of the delivery. Substituted service usually cannot be utilized unless it is shown that regular service of process will cause hardship or is impracticable, and that the substituted service will actually reach the intended recipient.
B.3.Process Server:
The actual delivery of the legal documents is done by a non-interested process server,
who is not a party to the litigation. The process server must be an adult, and they usually serve legal documents as a profession. Some jurisdictions have certain licensing or
certification requirements for private process servers. Process servers can also be court or government officials, such as a sheriff, deputy, constable, or marshal.
B.EXPLANATION UNDER VARIOUS HEADINGS: C.1.Motor accidents:
In the vast majority of cases, the Police must "lay information" within 6 months of the offence
occurring. This means that the Police must ask the Court to issue a Summons within that period of time. As long as the request is with the Court before the 6 months expires, it does not matter if the Court then fail to actually issue the Summons within 6 months of the offence. The police do not physically have to serve proceedings within 6 months of the offence.
C.2.Government servant:
Where the person summoned is in the active service of the Government, the Court issuing the
summons shall ordinarily send it in duplicate to the Head of the office, in which such person is employed and such head shall thereupon cause the summons to be served in the manner as explained above and shall return it to the Court under his signature with the endorsement as required by law.
When a Court desires that a summons issued by it shall be served at any place outside its local
jurisdiction, it shall ordinarily send such summons in duplicate to a Magistrate within whose jurisdiction the person summoned resides.
C.3.Defendant Resides In Another State:
A summons may be sent for service in another State to such Court and in such manner as may be
prescribed by rules in force in that State. The Court to which such summons is sent shall, upon receipt thereof, proceed as if it had been issued by such Court and shall then return the summons to the Court of issue together with the record (if any) of its proceedings with regard thereto. Where the language of the summons sent for service in another State is different from the language of the record
referred- (a)in Hindi, where the language of the Court issuing the summons is Hindi, or
C.4.Foreign Summonses:
(a) any Civil or Revenue Court established in any part of India to which the provisions of this Code do not extent, or
(b) any Civil or Revenue Court established or continued by the authority of the Central Government outside India, or
(c) any other Civil or Revenue Court outside India to which the Central Government has, by notification in the Official Gazette, declared the provisions of this section to apply, may be sent to the Courts in the territories to which this Code extends, and served as if they were summonses issued by such Courts.
C.5. Divorce:
Service of summons can in divorce cases can be sent by Registered Post with Acknowledgment Due (RPAD), or through the bailiff.
C.6. Commercial Disputes:
Commercial Division of High Courts Bill, 2009, allows the plaintiff to send service of summons to defendant through electronic mail. (Relevant article on Commercial Division of High Courts Bill, 2009.
C.8. Personal Service In India:
Private process servers may serve documents in most countries, whether a signatory to the Hague Service Convention, or not. Typical service takes less than one month, which is shorter than service under the Hague Convention. Service of process via this methods generally meets the USA federal or state rules only. Service is normally handled in a manner similar to methods used in the United States, although completion of the service usually takes slightly longer than the United States. This method of service is not provided for by the laws of India and may not result in an enforceable judgment in India.
