Issue and Service of summons
Summons
The concept of ‘Summons is an important subject matter of
the CPC. When the plaintiff files a suit, the defendant has to be informed that
the suit, the defendant has to be informed that the suit has been filed against
him, and that he is required to appear in the court to defend it. The
intimation which is sent to the defendant by the court is technically known as
‘Summons’. Although the term ‘ Summons” has not been defined in the code, a
summons is a document issued from the office of a court of Justice, calling
upon the person to whom it is directed to attend before a Judge or officer of
the Court for a certain purpose. With the provision in Rule 1 of order 5 where
it is stated that no summons shall be issued when the defendant has appeared at
the presentation of the plaint and admitted the plaintiff’s claim. In all other
cases summons must be issued and served to defendants. 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 copy of the plaint Rule (2)
Importance
of Service of Summons:
The importance of service of summons, in whatever way it may
be effected, is that the defendant may be informed of the institution of the
suit in due time before the date fixed for the hearing and to extend him an
opportunity to resist the suit where the defendant is not served with summons,
the mere fact that he had no knowledge of the suit is immaterial. There are
some important of service of summons. These
are following:
• It is a
fundamental rule of procedure.
• A party
must have a fair and reasonable notice of the legal proceedings initiated
against him, so that he can defend himself.
• It may be
issued to the defendant to appear and answer the claim and may be served in manner
prescribed.
• A summons
may be sent by the court by which it is issued.
• In every
suit heard by a Court of small Causes, the summons shall be for final disposal
of the suit.
• It can be
effected in section 27, order V and Rule 1 of the C P C. Mode of Service of
Summons :
The Code prescribes
four members of service of summons upon a defendant:
1. Personal
Service
2. Service
by affixation
3. Service
by post, and
4. Substituted
Service
Personal or Direct
Service:
Rules 10 to 16 and 18 deal with personal or direct service
of summons upon the defendant. This is an ordinary made of service of summons.
Here the following principle; must be remembered:
• Where it
is practicable, the summons must be served to the defendant in person or to his
authorized agent (rule 12).
• Where
there are more defendants that one, service of the summons shall be made on
each defendant (rule 11).
• Where the
defendant is absent from his residence at the time of service of summons may be
served on any adult male member of the defendant’s family residing with him
(rule 15).
In all above cases, service of summons should be made by
delivering or tendering a copy thereof.
2. Service by
Affixation:
Rule 17 specifies this method. When the defendant or his
agent refuses to accept personal service of summons, this method is to be used
when the defendant or his agent refuses to accept personal service, the serving
officer shall affix a copy of the summons to 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.
Mere temporary absence of a defendant from his residence or
place of business does not justify service by affixation.
3. Service by Post:
Rule 19B specifies that the court shall, in addition to, and
simultaneously with, the issue of summons for personal service, also direct the
summons for personal service, also direct the summons to be serve, by
registered post with acknowledgement due addressed to the defendant or his
agent at the place where the defendant or his agent actually and voluntarily
resides or carriers or business.
Leading Case: –
Gyanammal Vs. Abdul Hussain
4. Substituted
Service:
The Provision for substituted service is provided for in
Rule 20 or order 5 of the C P C. Rule 20 specifies that in two situations the
method of substituted service may be restore to:
• When
there is reason to believe that the defendant is keeping out of the way for the
purpose of avoiding service, or
• When for
any other reason summons cannot be served in the ordinary way.
Service in Special
Cases:
Apart from the above four types of modes of service of
summons rules 21 to 30 to deal with another mode of service which deal with
service outside the Jurisdiction of the courts etc.
In conclusion, it can be said that Summons has play an
important role in that code of Civil Procedure, 1908.
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