Summons

The word ‘summon’ has not been defined anywhere in the code. The definition of summons as
given by the Oxford dictionary states that, “a document which is issued from the court of justice
and calls upon a person to whom it is directed, to be present before a judge or court for a specific
reason is called a summon.” Issue and service of summons are given under Order 5 of the Code.

Essentials of summons

The essentials of a summon are given under Order 5, Rules 1 and 2 of the code. These are:

• Every summon must be signed by the judge or any other officer whom he appoints to do
so on his behalf.

• It must be sealed properly.

• The court will not issue any summons to the defendant if he has appeared before the court
at the time of the institution of the plaint.

• After summons are issued, the defendant is required to file written statements within 30
days.

• Another essential element of summons is that every summon must be accompanied by a

copy of the plaint.

Contents of summons

Rule 5 to Rule 8 of Order 5 under the code gives the content of summons. A summon must contain:

• Information, whether it is issued for settlement of issues or final disposal of the suit.
According to Rule 5, the court of small causes can only issue a summons for the final
disposal of a suit and nothing else.

• It must contain the date and day fixed for the appearance of the defendant.

• It also contains the list of necessary documents that a defendant is required to produce in
court.
 • If the summons is issued for final disposal, it must direct the defendant to produce witnesses
on his behalf to support his side.

Appearance of defendant

According to Rule 3, if summons has been issued to the defendant, he may appear before the court
in the following ways:

• He may appear himself in person or,

• Through his pleader, who will answer all the questions on his behalf or,

• by a pleader along with another person to answer all the questions.

The court, however, has the power to call defendants at any time to appear personally before the
court if there are reasons to do so.

Mode of service of summons

Personal or direct service

Rules 10 to 16 and Rule 18 of the order deal with personal or direct service. While serving
summons through this mode, the following principles must be taken into consideration:

• The service officer must try to serve the summons to the defendant or his agent.

• If the defendant is not present at his place of residence and there is no agent, then it must
be served on any adult male or female member of the family living with him on his behalf.

• If a suit is related to the business or work of a person who does not reside within the
territorial jurisdiction of the court, then it may be served to the manager or agent of that
business or work.

• In the case of a suit on immovable property, if the defendant is not found, then the summons
may be served on any person or agent who is in charge of such property.

Service by the court

Rule 9 of the Order deals with the service of summons by court. It provides that if a defendant
resides within the jurisdiction of the court, then the summons must be served to him by the court
officer.

Service by plaintiff

According to Rule 9A of the Order, the court may permit the plaintiff, on his application, to serve
summons to the defendants.

Substituted service

Substituted service means a mode of service of summons that is adopted in place of ordinary
service of summons. There are two modes of substituted service as given under Rules 17, 19 and
20 of the Order. These are:

• If the defendant or his agent refuses to acknowledge or sign the receipt of the summons, or
if the officer serving the summons reasonably believes that the defendant is not present at
his residence and will not be found within a reasonable time, and moreover if there is no
agent to receive summons on his behalf, he may affix the copy of the summons on the door
or any conspicuous part of his house.

o In this case, the serving officer has to make a report stating the reasons for affixing
the summons, the circumstances, the name and address of the person who helped
him and the witnesses to affixing the summons.

o The court can declare that the summons has been issued if it is satisfied with the
report of the officer.

• If the defendant is deliberately avoiding service and the court has a reason to believe so, it
may affix the summons in some conspicuous place in the court and house of the defendant
where he used to reside, carry on business or work for somebody.

Why serving of summons is important?

It is important to inform a person about any legal action that has been taken against them. It gives
an opportunity to the defendant to present his case and side of the story. The basis of summons
lies in the maxim “Audi Alteram Partem”, which means to hear both sides. It further helps in
following the principles of natural justice and ensures fair proceedings and trial. It helps in
ensuring the presence of either a witness or accused or any other person who is involved directly
or indirectly in a suit before the court. To produce the necessary documents.

Written statement
The Code of Civil Procedure does not give a definition of a ‘written statement’. In general terms,
it can be defined as the statement of defence in writing, filed by the defendant. The provisions
concerning the written statement are contained in Order VIII of the Code of Civil Procedure.

Who may be file written statement:

A written statement may be filed by the defendant or by his duly authorized agent.
Time limit for ling written statement:

A written statement should be led within 30 working days from the service of the summons on
him. The said period, however, can be extended up to 90 working days (Rule -1).

Defences in written statement:

In written statement defendant can specically deny the allegations made in the plaint by the plainti
against him.

Special rules of defence:

Rules 2 to 5 and 7 to 10 deal with special points regarding the ling of a written
statement:

1. New facts, such as the suit is not maintainable. (Order 8 Rule 2)

 2. The denial must be specific. It is not good for a defendant in his written statement to deny
generally the grounds alleged by the plaintiff, but he must deal specially with each
allegation of fact which he does not admit, except damages.

3. The denial should not be vague or evasive. Where a defendant wants to deny any allegation
of fact in the plaint, he must do so clearly, specially and explicitly and not evasively or
generally.

4. Where every allegation of fact in the plaint, if not denied specically or by necessary
implication, or stated to be not admitted except as against a person under disability. The
court may, however, require proof of any such fact otherwise than by such admission.

Set off (Order VIII, Rule 6]

Definition:

Where in a suit by the plaintiff for recovery of money and the defendant finds that he also has a
claim of some amount against the plaintiff what he do is he can claim a set-off in respect of the
said amount. This right of the defendant to claim set off has been recognized under Order 8, Rule
6 of the Code.

Essential Conditions:

1. A defendant may claim a set-off, if:

2. The suit is for the Recovery of money;
3. The sum of money must be ascertained;
4. Such sum must be legally recoverable;
5. It must be recoverable by the defendant or by all the defendants, if not more than one;
6. It must be recoverable by the defendant from the plaintiff(s);
7. It must not exceed the pecuniary jurisdiction of the court in which the suit is brought;
8. Both the parties must fill in the defendant's claim to set-off, the same character as they fill
in the plaintiff's

Effects:
When a defendant claims set-off, he is put in the position of the plaintiff as regards the amount
claimed by him. Where the plaintiff doesn't appear and his suit is dismissed or he withdraws, it
does not affect the claim for a set-off by the defendant and a decree may be passed in his favor if
he is able to prove his claim.

Counter Claim

It is claim made by the defendant in a suit against the plaintiff. Such claim should not exceed the
pecuniary limits of the jurisdiction of the concerned court. The counter-claim is to be treated as a
plaint and the plaintiff can file a written statement in answer to it. Counter-claim can be filed after
filing of written statement.

Who may file counterclaim?

Normally, it is the defendant who may file a counterclaim against the plaintiff..

When counterclaim may be set up?

A counterclaim may be set up by a defendant against a plaintiff in respect of cause of action

accruing either before or after filing of the suit, provided such claim is not barred by limitation.

Effect of counterclaim Such counterclaim has the effect of a cross-suit and the court can pronounce
a final judgment both on the original claim and the counterclaim. The counterclaim of the
defendant will be treated as a plaint and the plaintiff has a right to file a written statement in answer
to the counterclaim of the defendant.

The effect of the counterclaim is that even if the suit of the plaintiff is stayed, discontinued,
dismissed or withdrawn, the counterclaim will be decided on merits and the defendant will have a
right to get a decree for a counterclaim as claimed in the written statement.

Set Off & Counter Claim

The distinction between set-off and counter-claim may now be noted:

• Set-off is a statutory defence to a plaintiff's action, whereas a counterclaim is substantially

a cross-action.
 • Set-off must be for an ascertained sum or must arise out of the same transaction as the
plaintiff's claim. A counter-claim need not arise out of the same transaction.

• Set-off is a statutory ground of defence and has to be pleaded in the written statement. It
can be sued as a shield and not as a sword. Counter-claim, on the other hand, does not
afford any defence to the plaintiff's claim. It is a weapon of offence which enables the
defendant to enforce his claim against the plaintiff as effectually as in an independent
action. It is a sort of cross-action.

• If the statute of limitation is pleaded to a defence of set-off, the plaintiff in order to establish
his plea has to prove that set-off was barred when the plaintiff commenced the action. It is
not enough to prove that it was barred at the time when it was pleaded. In the case of a
counter-claim, it is enough for the plaintiff to prove that the counter-claim was barred when
it was pleaded.

• An equitable set-off is a claim by the defendant in defence, which generally cannot exceed
the plaintiff's claim. A counter-claim the defendant may, however, exceed the plaintiff's
claim, being in nature of the cross action. Under the provision rule 6-F of Order 6, if in any
suit a set off or counter claim is established as a defence against plaintiffs claim and any
balance is found due to the defendant as the case may be the court may give judgment to
the party entitled to such balance.

Appearance and Non-appearance of Parties in the Civil Suit

Appearance and non-appearance of parties during trial before the court is a crucial issue to resolve
civil dispute. Because, mere appearance or non- appearance can determine the ultimate result of a
civil litigation. In law, appearance means appearance in person or through advocate for conducting
a case.

The rules of non-appearance of parties are provided under order 9 of the Code of Civil Procedure,
1908.
Before proceeding to the details rule memorize three simple points to understand the process
easily.
 ▪ In the default of plaintiff = dismissal of suit
▪ In the default of plaintiff = ex-parte decree
▪ In default of both party = dismissal of suit

Order 9; Appearance and non-appearance of parties.

Rule 1; Defendant must be present with written statement

The defendant himself or by his pleader must be present and appear before the court on the date
provided in the summons to present the written statement. Then the suit shall be heard by the court
unless another date is fixed for the hearing.
Rule 2; The suit shall be dismissed when summon is not property served
When a summons is not served due to the plaintiff’s fault like, when court-fees is not properly
given or when postal charges are not given the court may order the dismissal of the suit.
Rule 3; Suit shall be dismissed when neither party appears
In cases where none of the party appears in the court for hearing the court may dismiss the suit.
Rule 4; Fresh suit by plaintiff against dismissal
This is a remedy rule, where a suit is dismissed due to the default of the plaintiff as provided under
rule 2 and rule 3, the plaintiff may initiate a fresh suit or he may also apply to set aside (cancel)
the dismissal order. But he must satisfy the court that there was sufficient cause for such non-
appearance. So we can conclude;
▪ After dismissal, the plaintiff can file an application / Miscellaneous case to the court to set
aside such dismissal
▪ The application must be applied within 30 days
▪ Proper reason must be shown to the court.

Rule 5; When summon is returned

If the summon is not duly served a second summons needs to be served. Where the plaintiff failed
to serve the second summon the suit shall be dismissed.
Remedy: In such a case a new suit can be instituted maintaining the law of limitation.
Ex Parte Decree
Rule 6; When defendant does not appear
In cases where only plaintiff appears but the defendant does not appear, the court will consider
whether the summon was duly served or not.
▪ If it is found that the summons was duly served then the court may provide an ex parte
decree.
▪ Where it is found that the summon is not duly served then the court shall order to provide
a second summon.
▪ Where summon is served but sufficient time has not been given to the defendant then the
court may postpone the hearing and shall provide another date.
Rule 7: Where the defendant appears after ex-party on the date of adjourned
Where a defendant appears after the ex parte decree against him on the date of adjourned and
shows good cause for such delay the court may order to assign another day for hearing ordering
the defendant to provide with or without cost.
Dismissal of the suit
Rule 8; Where plaintiff does not appear
In cases where the plaintiff does not appear and only the defendant appears in the court then the
court shall make an order of dismissal of such case.
But in cases where –
▪ The defendant already accepted the claims made by the plaintiff the court shall provide a
decree. Or,
▪ Where The defendant accepted the claims partially the court shall provide a partial decree.

Remedy Against dismissal

Where the suit is dismissed under rule 8 of order 9 of CPC there are two remedy:
Rule 9: General remedy by showing cause
▪ An application must be preferred before the court
▪ The application must be presented within 30 days , according to article 163 of Limitation
 act.
▪ Proper cause must be shown for the non appearance and the court must be satisfied with
such cause.
Rule 9A ; Speedy Remedy without showing cause
▪ An application must be preferred before the court
▪ The application must be presented within 30 days, according to article 163 of Limitation
act.
▪ No need to show cause of the non-appearance.
▪ Notice must be provided to the opposite party.
▪ Up to 1000 taka cost can be ordered by court to be provided by the party.
▪ This procedure can not be used more than once.

Remedy Against ex parte decree

In cases where an ex parte decree is provided against the defendant under rule 6 of Order 9 of The
Code of Civil Procedure, 1908 five remedies are there.
Rule 13: General remedy by showing cause
▪ An application must be preferred before the court
▪ The application must be presented within 30 days, according to article 164 of Limitation
act.
▪ Proper cause must be shown for the non-appearance and the court must be satisfied with
such cause.
Rule 13A ; Speedy Remedy without showing cause
▪ An application must be preferred before the court
▪ The application must be presented within 30 days, according to article 164 of Limitation
act.
▪ No need to show cause of the non-appearance.
▪ Notice must be provided to the opposite party.
▪ Upto 3000 taka cost can be ordered by court to be provided by the party.
▪ This procedure can not be used more than once.
Appeal
We know ex-parte decree is a decree so an appeal can be preferred against an ex parte decree under
section 96 (2) of CPC

Review
A review can also be filed under section 114 of CPC against an ex parte decree.

Application under 151

Where there is a fraud or misuse by which the ex-parte decree is obtained then an application under
section 151 is another option to proceed.

Ex Parte Decree

An ‘Ex parte decree’ is a decree passed against a defendant in absentia. Despite service of
summons, where on the date of hearing only plaintiff does and a defendant does not appear the
Court may hear the suit ex parte and pass a decree against the defendant.

When is an Ex-Parte Decree Passed

CPC provides for passing of an Ex Parte Decree wherever the presence of the defendant is required
under the code and the defendant fails to appear.

Following are the instances where the court can pass an Ex Parte Decree:

1. Order 8, Rule 10

▪ Rule 1 of Order 8 of CPC states that the defendant shall submit its written statement
within 30 days from the date of service of summons.

▪ This time period of 30 days can be extended by the court to not more than 90 days from
the date of service of summons.

▪ If the defendant fails to submit the written statement in such period, then the Court,
under Rule 10 of Order 8, has the discretion to pass an Ex-Parte Decree.

2. Order 9, Rule 6
 ▪ This rule provides that the Court may proceed to try the case Ex-Parte, and pass an
Ex Parte Decree in the same if:

o On the day fixed in the summons for the defendant to appear, and answer,
the plaintiff appears, and the defendant does not appear.

o It is proved that the summons was duly served in sufficient time to enable
the defendant to appear and answer.

Remedies Against An Ex Parte Decree

Once an Ex Parte Decree has been passed against a judgement debtor, he/she can undertake
any of the several remedies available to him under the code.

CPC provides the following remedies against an Ex-Parte Decree:

1. Setting Aside

▪ Order 9, Rule 13 of the CPC, provides for the setting aside of the Ex-Parte decree passed
against the defendant.

▪ Defendant against whom an Ex-Parte decree has been passed may apply to the Court by
which the decree was passed for an order to set it aside and if he satisfies the Court
that:

• The summons was not duly served, or

• He was prevented by any sufficient cause from appearing when the suit
was called on for hearing.

• If either of the above two conditions are satisfied, then the Court shall make
an order setting aside the decree as against such defendant.

2. Conditional Setting Aside of Decree

▪ Court may, in its discretion, while setting aside a decree impose such terms as to
costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for
proceeding with the suit.
 ▪ Rule 14 of the Order 9 states that no decree is to be set aside without furnishing notice
to the opposite party.

3. Appeal

▪ According to Section 96(2) of the Code, an appeal may lie from an original decree
passed ex parte.

4. Review

▪ A review under Section 114 of the code can be made against a decree passed Ex-
Parte.

Representative Suit Under The Code Of Civil Procedure, 1908

Order I Rule 8 of the Code of Civil Procedure 1908 deals with representative suit. A representative
suit is a suit that is filed by one or more persons on behalf of themselves and others having same
interest in the suit.

Conditions for a representative suit

There are basically four essential conditions for a party to institute a representative suit which can
be derived from the provision of Rule 8, they are:

1. The parties are numerous

2. Same interest or Community of interest

3. Necessary permission of the Court has been obtained

4. Notice to all the persons interested in the suit

ADR
Advantages of ADR

The advantages of ADR are:

1. Cost-Effectiveness
One of the primary advantages of ADR is that it is generally more cost-effective than traditional
litigation.

2. Time Efficiency

ADR processes are typically faster than court litigation.

3. Flexibility

ADR offers more flexibility compared to the rigid structure of court proceedings.

4. Confidentiality

Unlike court cases, which are typically public, ADR proceedings are private and confidential..

5. Control over the Outcome

In ADR, the parties have more control over the outcome of the dispute..

6. Preservation of Relationships

ADR methods like mediation focus on collaboration and communication, which can help preserve
and even improve relationships between the disputing parties.

Disadvantages of ADR

The disadvantages of ADR are:

1. Lack of Precedent

Decisions made in ADR do not set a legal precedent, which can be seen as a disadvantage in certain
cases.

2. Limited Scope for Appeal

In some forms of ADR, such as binding arbitration, the opportunities for appealing the decision
are limited.

3. Enforcement Issues

While court judgments are enforceable by law, enforcing the outcome of an ADR process can
sometimes be more challenging.
4. Power Imbalances

In disputes where there is a significant power imbalance between the parties, ADR may not provide
a fair resolution.

5. Lack of Legal Representation

In some ADR processes, parties may not have legal representation, which can be a disadvantage,
especially for those who are not familiar with legal matters.

6. Inconsistency

Since ADR processes are less formal and more flexible, there can be inconsistency in how disputes
are resolved.

Mediation

Mediation under the CPC is a flexible, informal, non-binding, confidential, non-adversarial and
consensual dispute resolution process in which a third party mediator shall facilitate a compromise
to parties' disputes. After the appointment of mediator by the parties or by the court, mediation
work must be completed within 90 (60+30) days from the date of appointment of mediator. The
court needs to pass decree/order according to the terms of compromise within 7 days from the date
of getting report of the mediator. If mediation attempt undertaken by the court fails, the same Judge
shall not hear the suit subsequently.