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ALIGARH MUSLIM UNIVERSITY

MALAPPURAM CENTE , KERALA

End -TERM ASSIGNMENT

CIVIL PROCEDURE CODE- I
Batch -2018
VI Semester

“SUMMONS AND Modes of SERVICE OF SUMMONS”

Submitted To- Submitted By-

Mr. Alihinas V. Sadhvi Singh

Asst. Prof. Roll No – 18ballb 33

Dept of Law Enrollment no – Gk 7930

.
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Table of Contents
S.No. Particulars. P.No

1 Introduction 3
2 Issue of Summons to defendant 3
3 Essentials Contents of Summons 5
4 Service of Summons 6
5 Service by Court- Rule 9 7
6 Service by Plaintiff- Rule ,9A 7
7 Personal or Direct Service- Rule10-16 and 18 9
8 Substituted Service-Rule 17,19 and 20 10
9 Conclusion 12
10 Bibliography 15
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Introduction and Meaning of Summons

Fair hearing is the core of concept of natural justice. In every case , before reaching to
judgement or Conclusion, a court should hear both parties . If court hears only one party
without informing the other one about the suit is totally a violation of right to have fair
hearing and also destruct the concept of Natural Justice.

When a plaintiff files a lawsuit, the defendant must be notified that a lawsuit has been filed
against him and that he must appear in court to defend himself. The summons is the formal
name for the notice that the court sends to the defendant. When a defendant appears at the
presentation of the plaint and admits the plaintiff’s claim, no such summons will be issued.

Where the defendant fails to file the written statement within the said period of thirty days, he
shall be allowed to file the written statement on such other day, as may be specified by the
Court, for reasons to be recorded in writing and on payment of such costs as the Court deems
fit, but which shall not be later than one hundred twenty days from the date of service of
summons. On expiry of one hundred twenty days from the date of service of summons, the
defendant shall forfeit the right to file the written statement and the Court shall not allow the
written statement to be taken on record.

Though the said expression (summons) has not been defined in the code, according to the
dictionary meaning, “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.”

Objective of Issuing Summons

A summons is a court order that notifies a defendant that a lawsuit has been filed against
him or her and that the defendant must file an answer within a specified number of days. The
summons is the document that officially starts a lawsuit. 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. Issue of Summons 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.

This is in consonance with the principle of natural justice as no one can be condemned
unheard ( Audi alteram partem). If the defendant is not served with the summons a decree
passed against him will not bind him.
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Summons to Defendant: Sec 27 ; Order 5 Rule 1

S. 27 of the Code of Civil Procedure, 1908, reads as follows:-

Summons to defendants.- 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].1

The words ‘on such date not beyond thirty days from the date of the institution of the suit’ do
not mean that the summons must be served within thirty days of the date of the institution of
the suit. The words added by amendment, fix outer time frame, by providing, that steps must
be taken within thirty days from the dare of the institution of the suit, to issue summons. In
other words, if the suit is instituted, for example, on 1st Jan, 2002 then the correct addresses of
the defendants and the process fee must be filed in the court within thirty days so that summons
be issued by the court not beyond thirty days from the date of the institution of the suit. 2 The
object is to avoid long delay in issue of summons for want of steps by the plaintiff. It is quite
evident that if all that is required to be done by a party, has been performed within the period
of thirty days, then no fault can be attributed to the party.3

Order 5 of the Code deals with summons to defendant. When a suit has been duly filed by
presentation of a plaint, the courts must issue summons to the defendants calling upon him to
appear and answer the claim of the plaintiff by filing a written statement within thirty days
from the date of service of summons and such summons issued by the court must be
accompanied by the copy of the plaint. Such procedure has been duly provided for in rule 1
and 2 of order 5. They read as follows:-

Rule 1. Summons- (1) When a suit has been duly instituted, summons may be issued to the
defendant to appear and answer the claim and to file the written statement of his defence, if
any, within thirty day from the date of service of summons on that defendant:

Provided that no such summons shall be issued when a defendant has appeared at the
presentation of plaint and admitted the plaintiff’s claim;

Provided further that where the defendant fails to file the written statement within the said
period of thirty day, he shall be allowed to file the same on such other days as may be specified
by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days
from the date of service of summons.

1 Added by Act No. 46 of 1999, section 3 (w.e.f. 1-7-2002).

2 Mulla,The Code of Civil Procedure, 17th ed., LexisNexis Butterworths Publications, Delhi, 2007 at p. 555.
3 Salem Advocate Bar Association, Tamil Nadu v. Union of India, AIR 2003 SC 189.
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(2) A defendant to whom a summons has been issued under sub-rule (1) may appear— (a) in
person, or (b) by a pleader duly instructed and able to answer all material questions relating to
the suit, or (c) by pleader accompanied by some person able to answer all such questions.

(3) 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.

Rule 2. Copy of plaint annexed to summons - Every summons shall be accompanied by a copy
of the plaint.

In Karnail Singh v. Dina Nath,4 it was said that it is the requirement of law that summons must
be accompanied by the copy of the plaint and unless it is done, mere presentation of summon
without copy is no service. Hence, if the plaint was not presented along with the summons, it
cannot be said that there was due service. ‘Due Service’ means service of summons along with
the plaint. Word ‘due’ has not been superfluously used by the legislature but attachment of copy
of complaint or concise statement thereof along with summons is mandatory.5

In another case of Sneh Gupta v. Devi Sarup,6 summons were served on the party after
the date fixed in the suit had expired. The Hon’ble Supreme Court held that the court, in this
situation, had a legal obligation to serve another summons fixing another date of hearing in
terms of order 5 rule 2 of the CPC.

(viii)

Essential Contents of Summons

Every summons shall:-
1. Intimate to the defendant of the date of hearing and whether he is to appear in person or
by a pleader.
2. Contain a direction whether the date is fixed for settlement of issues only or final disposal
of the suit.
3. Order the defendant to produce all documents in his possession or power upon which he
intends to rely in support of his case.10

R. 5-8 of Or. 5 deals with various essentials of the summons. They read as follows:-

Rule 5. Summons to be either to settle issues or for final disposal - The court shall determine,
at the time of issuing the summons, whether it shall be for the settlement of issues only, or for
the final disposal of the suit; and the summons shall contain a direction accordingly:

7 Tandon M. P., The Code of Civil Procedure, 1908, 26th ed., Allahabad Law Agency, Faridabad, 2008 at p. 151.
8 S. 132, The Code of Civil Procedure, 1908.
9 S. 133, The Code of Civil Procedure, 1908.
10 Supra 10.
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Provided that, in every Suit heard by a court of small causes, the summons shall be for the final
disposal of the suit.

Rule 6. Fixing day for appearance of defendant - The day under sub-rule (1) of rule 1 shall be
fixed with reference to the current business of the court; the place of residence of the defendant
and the time necessary for the service of the summons; and the day shall be so fixed as to allow
the defendant sufficient time to enable him to appear and answer on such day.

Expression ‘Sufficient Time’ had been defined in the case of Madina Dangi Multi-purpose
Co-op Society, Madina v. Ral Mal,11 it was said that the term ‘Sufficient Time’ contemplates
a reasonable time to enable the party to appear and answer before the court on date so fixed in
summons. But in Ami Chand v. Partapa,12 it was held that mere short notice does not mean
the defendant need not appear. If he feels the time is short to file written reply, he can only
request the court after appearance.

Rule 7. Summons to order defendant to produce documents relied on by him - The summons
to appear and answer shall order the defendant to produce all documents or copies thereof
specified in rule 1A of Order VIII in his possession or power upon which he intends to rely in
support of his case.

Rule 8. On issue of summons for final disposal, defendant to be directed to produce his
witnesses - Where the summons is for the final disposal of the suit, it shall also direct the
defendant to produce, on the day fixed for his appearance, all witnesses upon whose evidence
he intends to rely in support of his case.

Accordingly, a summon in a small cause court suit shall be for final disposal and shall direct
the defendant to produce his witnesses on the date fixed upon whose evidence he intends to
rely in support of his case.

Service of Summons
The service of summons is of primary importance as it is a fundamental rule of law of procedure
that a party must have a fair and reasonable notice of the legal proceedings initiated against
him so that he can defend himself.13

In Bheru Lal v. Shanti Lal,14 it was held that an objection as to service of summons should be
raised at the earliest possible opportunity. If it is not taken at that stage, it is deemed to have
been waived.

The problem of service of summons is one of the major causes of delay in the progress of the
suit. It is common knowledge that defendants try to avoid service of summons. The Law
commission considered the problem and it was felt that certain amendments were necessary in

11 2001(4)RCR(Civil) 322(P&H)
12 2003(1)RCR(Civil) 616(P&H)
13 Takwani C. K., Civil Procedure, 7th ed., Eastern Book Company, Lucknow, 2014 at p. 251.
14 AIR 1985 Raj. 53
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that direction and a defendant can be served by a plaintiff or through modern means of
communication. Accordingly, amendments were made in the court.15

The Code prescribes few principal modes of serving a summons to a defendant, as discussed
below:-

Service by Courts- Rule 9

A bare perusal of Order V, Rule 9, CPC clearly shows that service through process of court is
mandatory. Summons to defendant residing within or outside the jurisdiction of the court shall
be served through court officer or approved courier service or various other means such as
registered post, speed post, fax, acknowledgment due, etc. further, summons is presumed to be
served if it does not back within thirty days from the date of issue. 16 In this regard, R. 9 reads
as follows:-

Rule 9. Delivery of summons by Court - (1) Where the defendant resides within the
jurisdiction of the Court in which the suit is instituted, or has an agent resident within that
jurisdiction who is empowered to accept the service of the summons, the summons shall, unless
the Court otherwise directs, be delivered or sent either to the proper officer to be served by him
or one of his subordinates or to such courier services as are approved by the Court.

(2) The proper officer may be an officer of a Court other than that in which the suit is instituted,
and where he is such an officer, the summons may be sent to him in such manner as the Court
may direct.

(3) The services of summons may be made by delivering or transmitting a copy thereof by
registered post acknowledgment due, addressed to the defendant or his agent empowered to
accept the service or by speed post or by such courier services as are approved by the High
Court or by the Court referred to in sub-rule (1) or by any other means of transmission of
documents (including fax message or electronic mail service) provided by the rules made by
the High Court:

Provided that the service of summons under this sub-rule shall be made at the expenses of the
plaintiff.

(4) Notwithstanding anything contained in sub-rule (1), where a defendant resides outside the
jurisdiction of the court in which the suit is instituted, and the Court directs that the service of
summons on that defendant may be made by such mode of service of summons as is referred
to in sub-rule (3) (except by registered post acknowledgment due), the provisions of Rule 21
shall not apply.

15 Salem Advocate Bar Association (II) v. Union of India, (2005)6 SCC 344.
16 Subodh S. Salaskar v. Jayprakash M. Shah, 2008(3) RCR(Civil) 905 SC.
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(5) When an acknowledgment or any other receipt purporting to be signed by the defendant or
his agent is received by the Court or postal article containing the summons is received back by
the Court with an endorsement purporting to have been made by a postal employee or by any
person authorised by the courier service to the effect that the defendant or his agent had refused
to take delivery of the postal article containing the summons or had refused to accept the
summons by any other means specified in sub-rule (3) when tendered or transmitted to him,
the Court issuing the summons shall declare that the summons had been duly served on the
defendant:

Provided that where the summons was properly addressed, pre-paid and duly sent by registered
post acknowledgment due, the declaration referred to in this sub-rule shall be made
notwithstanding the fact the acknowledgment having been lost or mislaid, or for any other
reason, has not been received by the Court within thirty days from the date of issue of summons.

(6) The High Court or the District Judge, as the case may be, shall prepare a panel of courier
agencies for the purposes of sub-rule (1).

R. 9(3) gives power to courts to serve the summons via registered post but such power is limited
to an extent only. In M. G. Dua v. Balli Mal Nawal Kishore,17 it was held that summons can
be sent by registered post only in the first instance. If any other mode of service is tried in the
first instance and if it fails to yield any fruitful result, it is not open to courts to endeavor to
effect service on the defendants by registered post.

R. 9 also states that where the defendant refuses to accept the summons, he is deemed to have
been served.18 Similarly, where an acknowledgement or receipt purported to have been signed
by the defendant is received by the court that the defendant has refused to take the delivery of
the summons, the court will proceed treating the defendant as served.19

In the matter of Mst. Bhabia Devi v. Permanand Pd. Yadav,20 the ex parte decree was held to
be rightly passed where the defendant refused to put her sign or thumb impression on summons
when they were handed to her and she also refused to acknowledge the registered service.

Service by Plaintiff- Rule 9A

The court may also permit services of summons by the plaintiff in addition to service of
summons by the court. R. 9A talks about the summons given to plaintiff for service. It reads as
follows:-

Rule 9A. Summons given to the plaintiff for service –

(1) The Court may, in addition to the service of summons under Rule 9, on the application of
the plaintiff for the issue of a summons for the appearance of the defendant, permit such

17 AIR 1959 Punjab 467.

18 Takwani C. K., Civil Procedure, 7th ed., Eastern Book Company, Lucknow, 2014 at p. 255.
19 Puwada Venkateswara v. Chindamana Venkata, (1976)2 SCC 409.
20 AIR 1997 SC 1919.
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plaintiff to effect service of such summons on such defendant and shall, in such a case,
deliver the summons to such plaintiff for service.

(2) The service of such summons shall be effected to or on behalf of such plaintiff by
delivering or tendering to the defendant personally a copy thereof signed by the Judge or
such officer of the Court as he may appoint in this behalf and sealed with the seal of the
Court or by such mode of service as is referred to in sub-rule (3) of rule 9.

(3) The provisions of Rules 16 and 18 shall apply to a summons personally served under this
rule as if the person effecting service were a serving officer.

(4) If such summons, when tendered, is refused or if the person served refuses to sign an
acknowledgment of service or for any reason such summons is not be served personally, the
Court shall, on the application of the party, re-issue such summons to be served by the Court
in the same manner as a summons to a defendant.

In Salem Advocate Bar Association (II) v. Union of India,21 the court was of opinion that
though there can be no objection in giving an opportunity to the plaintiff to serve summons on
the defendant, there should be sufficient safeguards to avoid false report of service of summons.
High Court should make appropriate rules or issue practice directions to ensure that the
provisions are properly implemented and there is no abuse of process of law.

Personal or Direct Service- Rule10-16 and 18

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.22 Rules 10-16 and 18 of Order V of the Code deals with personal
or direct service of summon upon the defendant. This is an ordinary mode of service of
summons. R. 10 and 11 are the basic rules which need to be followed as a compulsory
requirement in almost all types of services mentioned in order V. They read as follows:-

Rule 10. Mode of service - Service of the summons shall be made by delivering or tendering
a copy thereof signed by the Judge or such officer as he appoints in this behalf, and sealed with
the seal of the court.

Rule 11. Service on several defendants - Save as otherwise prescribed, where there are more
defendants than one, service of the summons shall be made on each defendant.

Further, Rule 12 of Order V enjoins that wherever it was practicable, service should be made
on the person concerned unless the person has an agent empowered to accept service. Thus the
requirement under law was that attempt should be made to serve notice personally on the party
unless there was an agent empowered to accept service.

21 (2005)6 SCC 344.

22 http://research.lawyers.com/process-serving.html as assessed on 19.10.2014 at 4:00 P.M.
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Rule 12. Service to be on defendant in person when practicable, or on his agent - Wherever
it is practicable, service shall be made on the defendant in person, unless he has an agent
empowered to accept service, in which case service on Such agent shall be sufficient.

In the matter of M/s Punjab Rural Industrial Works v. Punjab Financial Corporation,23 it
was said that Rules 10 and 12 of order 5 lay down the mode and method of service. As per
these rules, the service has to be effected on the person concerned when practicable and that
too by tendering the copy of summons to him.

Rules 13 and 14 relate to service of summons on an agent in certain circumstances. They

are as follows:-

Rule 13. Service on agent by whom defendant carries on business - (1) In a Suit relating to
any business or work against a person who does not reside within the local limits of the
jurisdiction of the court from which the summons is issued, service on any manager or agent,
who, at the time of service, personally carries on such business or work for such person within
such limits, shall be deemed good service.

(2) For the purpose of this rule the master of a ship shall be deemed to be the agent of the owner
or charterer.

It states that in a suit relating to any business or work, against a person not residing within the
jurisdiction of the court issuing the summons, service on any manager or agent carrying on
such business or work is sufficient. Sub-rule (2) further clarifies that the master of a ship is the
agent of the owner.

Rule 14. Service on agent in charge in suits for immovable property - Where in a suit to
obtain relief respecting, or compensation for wrong to, immovable property, service cannot be
made on the defendant in person, and the defendant has no agent empowered to accept the
service, it may be made on any agent of the defendant in charge of the property.

It states that in a suit for immovable property service may be made on an agent in charge of the
property if the service cannot be made on the defendant personally and the defendant has no
agent empowered to accept the service.

Order V, Rule 15 of the Code empowers the process server to serve summons on any adult
male member of the family, if the party was found to be absent when service of summons is
sought to be effected on him at his residence and there is no likelihood of the party being found
at the residence within reasonable time and he has no agent empowered to accept service. It
reads as:-

Rule 15. Where service may be on an adult member of defendant’s family - Where in any
suit the defendant is absent from his residence at the time when the service of summons is
sought to be effected on him at his residence and there is no likelihood of his being found at

23 1985(2) 88 PLR 640

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the residence within a reasonable time and he has no agent empowered to accept service of the
summons on his behalf, service may be made on any adult member of the family, whether male
or female, who is residing with him.

Explanation: A Servant is not a member of his family within the meaning of this rule.

However, while effecting service under the above stated rule, process server has to record a
specific finding that the party was absent from his residence and there was no likelihood of the
party being found at the residence within reasonable time. The service can be effected only on
an adult member of the family of the party. Process server has therefore, to take care and caution
on noting down the name and details of the adult member of the family.24

In the matter of Charanjit Singh Mann v. Neelam Mann,25 the appellant was not found at his
residence and his father informed the process-server that the appellant had gone abroad. The
appellant's father did not disclose as to how soon the appellant would come back from abroad.
In these peculiar facts and circumstances, the Hon’ble Court said that it can be safely inferred
that the summons could not have been served upon the appellant personally within a reasonable
time, therefore, service of notice upon the appellant's father, who admittedly received the
summons, squarely falls within the safeguards of Rule 15 of Order V, CPC and has to be treated
as a valid service upon the appellant.

Further, in Sumitra Bai v. Shyam Lal Sen, summons were to be served on adult son of the
party. Son was residing elsewhere and not with the father. It was held that it is no service as
Order 5, Rule 15 provides that the summons may be served on any adult member of the family
who is residing with the addressee.

All types of personal services mentioned above are also called direct service because service is
made by delivering a copy thereof to the defendant personally, or to an agent or other person
on his behalf and the signature of the person to whom the copy is so delivered is obtained to an
acknowledgement of service endorsed on the original summons. Such statement is supported
by R. 16 of order V which reads as follows:-

Rule 16. Person served to sign acknowledgement - Where the serving officer delivers or
tenders a copy of the summons to the defendant personally, or to an agent or other person on
his behalf, he shall require the signature of the person to whom the copy is so delivered or
tendered to an acknowledgement of service endorsed on the original summons.

When the acknowledgement signed by the defendant or his agent is received by the court, the
court issuing the summons has to declare that due service has been effected on the defendant.26
Thereafter, the serving officer must make an endorsement on the original summons stating the

24 Renu Sharma v. Titan Industries Ltd., AIR 2007 Del 151 at 153.
25 AIR 2006 P&H 201 at 208.
26 Sardar Singh v. Krishan Lal Bharti, 2004(4) RCR(Civil) 716.
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time and manner of service thereof and the name and address of the person, if any, identifying
the person served and witnessing the delivery or tender of summons as required by R. 18.

Rule 18. Endorsement of time and manner of service - The serving officer shall, in all cases
in which the summons has been served under rule 16, endorse or annex, or cause to be endorsed
or annexed, on or to the original summons, a return stating the time when and the manner in
which the summons was served, and the name and address of the person (if any) identifying
the person served and witnessing the delivery or tender of the summons.

Substituted Service- Rule 17, 19 and 20

‘Substituted Service’ means the service of summons by a mode which is substituted for the
ordinary mode of service of summons. In many jurisdictions, service of process may also be
accomplished through substituted service if the party to be served is unavailable. There two
modes of substituted service such as:

1. Where the defendant refuses to accept the summons or cannot be found, and
2. Where the court is satisfied that the party is avoiding the summons or the summons
cannot be served in the ordinary manner.27

Order V, Rule 17 of the Code deals with the first case while Rule 20 with the second. Both the
cases are discussed below:-

Rule 17. Procedure when defendant refuses to accept service, or cannot be found - Where
the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment,
or where the serving officer, after using all due and reasonable diligence, cannot find the
defendant, who is absent from his residence at the time when service is sought to be effected
on him at his residence and there is no likelihood of his being found at the residence within a
reasonable time and there is no agent empowered to accept service of the summons on his
behalf, nor any other person on whom service can be made, the serving officer shall 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, and shall
then return the original to the court from which it was issued, with a report endorsed thereon
or annexed thereto stating that he has so affixed the copy, the circumstances under which he
did so, and the name and address of the person (if any) by whom the house was identified and
‘whose presence the copy was affixed.

It states that where the defendant or his agent or in their absence an adult member of the family
refuses to sign the acknowledgement or where the serving officer cannot find the defendant
who is absent from his residence at the time when service is sought to be effected on him at his
residence and there is no likelihood of his being found at the residence within a reasonable time
and there is no such other person on whom service can be effected, the serving officer shall
affix a copy of the summons on the outer door or some other conspicuous part of the house in

27 Takwani C. K., Civil Procedure, 7th ed., Eastern Book Company, Lucknow, 2014 at p. 253.
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which the defendant ordinarily resides or carries on business, and shall then return the original
to the court from which it was issued, with a report endorsed thereon, stating that he has so
affixed the copy, the circumstances under which he did so, and the name and address of the
person (if any) by whom the house was identified and in whose presence the copy was affixed.
If the Court is satisfied, it declares the service to have been duly effected.

A simple delivery of the copy of the summons personally to the defendant is not complete, the
process-server, must, in order to make the service complete, also obtain the signature of the
defendant to its acknowledgement and where he refuses to sign, it is incumbent to effect service
under rule 17.

In Smt. Rooprani v. Prem Singh, it was held that in a civil suit where summons were issued
to defendants to appear which had been refused by the party will not amount to be a valid
service unless and until a copy of the summons is affixed on the outer door or some other
conspicuous part of the house in which the defendant resides or carries on business.

In the matter of Mst. Bhabia Devi v. Permanand Pd. Yadav,28 it was held that where the
defendant refused to put her sign of thumb impression on summon when they were handed to
her and also refused to acknowledge the registered service, it is indicative of refusal to accept
notice and in such circumstances passing of ex parte decree is justified.

Further, Rule 19 is in addition to the mode of service incorporated in Rule 17. This rule keeps
the check on the genuineness of the serving of summons as per rule 17. It reads as:-

Rule 19. Examination of serving officer - Where a summons is returned under rule 17, the
court shall, if the return under that rule has not been verified by the affidavit of the serving
officer, and may, if it has been so verified, examine the serving officer on oath, or cause him
to be so examined by another Court, touching his proceedings, and may make such further
enquiry in the matter as it thinks fit, and shall either declare that the summons has been duly
served or order such service as it thinks fit.

It states that if the court is satisfied, either on the affidavit of serving officer or on his
examination on oath, that the summons has been duly served, it may either declare that the
summons has been duly served or may further enquire in the matter as it thinks fit. Thus, in the
mode of service of summons as provided by rule 17, the service is effected without the orders
of the court by affixing the copy of the summons on the house of the defendant and therefore
the declaration by the court about the due service of summons is essential.29

In the matter of State of J&K v. Haji Wali Mohammed, it was held that if the provisions of
Rule 19 have not been complied with, the service of summons cannot be said to be in
accordance with law.

28 AIR 1997 SC 1919.

29 Laxmibai v. Keshrimal Jain, AIR 1995 MP 178.
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Further, Rule 20 deals with the second case i.e. where the court is satisfied that the party is
avoiding the summons or the summons cannot be served in the ordinary manner. In this
situation, Code prescribes various other alternatives as provided for in rule 20.

Rule 20(1), provides that where the Court is satisfied that there was 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 could not 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 on
the house where the defendant was known to have last resided. Sub-rule 1(A) provides that
where the Court acting under sub-rule (1) orders service by an advertisement in a newspaper,
it has to be a daily newspaper circulated in the locality in which the defendant is last known to
have actually and voluntarily resided. Such service is an effective service , even if the defendant
is not the subscriber of the newspaper or is not reading it.

Under Rule 20, the service of summons is effected by the order of the court only after the court
is satisfied that the defendants avoids the service of summons or it cannot be served in the
ordinary way.30 Such satisfaction must be recorded by court in writing. Substituted service is
as effective as personal service. The court must fix a time for the appearance of the defendant
and give him a reasonable time to appear before the court.

In Rabindra Singh v. Financial Commissioner, Cooperation, Punjab,31 it was held that

substituted mode of service cannot be used where defendant is residing in America. Substituted
mode of service is permissible in law but such substituted mode of service in the change, be
sufficient. A purported service by beat of drums of publication of notice in a local newspaper
which has no circulation in USA cannot be said to be an effective service.

In the matter of Satish Construction Co. v. Allahabad Bank,32 the Hon’ble Court held that the
trial Court committed breach of the mandatory provisions of Order V, Rule 20 in directing
publication of the notice. Firstly, because it did not record its satisfaction and secondly because
it did not order affixture of the copy of summons in conspicuous place in the Court-house. It
was trite law that service would be deemed to be valid if the order preceding the service was in
accordance with law. It was not only the service which is required to be proved but the party
relying upon the substituted service has to prove that the Order directing substituted service
was also in accordance with law. The trial Court, in the opinion of the Court, was not justified
in rejecting the application for setting aside ex parte decree.

Conclusion
In conclusion after this big discussion , summons is a paper issued by a court informing a
person that a complaint has been filed against him or her. it can be said service of summons is
very is of prime importance. The importance of service of summons, is that the defendant may

30 Ram August Tewari v. Bindeshwari Tiwari, AIR 1972 Pat 142.

31 2008(3)RCR(Civil) 929 SC.
32 AIR 1999 MP 21.
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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. 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 served by an authorized person for service of process, called a process server. There
are also several instances when a person is exempted from personal appearance. A copy of the
summons must be served on each defendant at the same time as the complaint to start the time
running for the defendant to answer. After service to the defendants, the original summons,
along with the "return of service" proving the summons and complaint were served, is filed
with the court to show that each defendant was served. Various modes are used to issue
summons as per the situation arise. Substituted service is enacted for reduce the delay in
service. Even sending summons over email and whatsapp are also recognised as a valid service
by many Highcourt. If summons are not issued then it will leads to defeat of law and justice.
Therefore , in best of justice , summons must be issued and delivered to defendant with strict
compliance with the rules mention under the civil procedure code.
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Bibliography
▪ Books and statute
 Takwani C. K., Civil Procedure, 7th ed., Eastern Book Company, Lucknow, 2014.
 Mulla, The Code of Civil Procedure, 17th ed., LexisNexis Butterworths Publications, Delhi,
2007.
 The Code of Civil Procedure, 1908.

▪ Weblinks

 http://research.lawyers.com/process-serving.html
 http://www.indianlawcases.com/The.Code.of.Civil.Procedure.1908-742
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