Order 5 of the Code of Civil Procedure, 1908, outlines the fundamental procedures for the issue and service of summons in civil cases. Summons serve as a legal notice to the defendant, informing them about the case and requiring their appearance in court.

This ensures that the principles of natural justice are upheld, giving the defendant an opportunity to present their side.

Order 5 establishes detailed rules to ensure summons are served effectively, covering personal delivery, substituted service, and service through agents or electronic means.

Proper adherence to these rules is vital to maintain fairness and avoid procedural delays.

What is a Summons?

A summons is a legal document issued by a court, directing a defendant to appear and respond to the claims made in a lawsuit.

The primary purpose of a summons is to ensure due process by notifying the defendant of the legal proceedings against them and providing an opportunity to present their case.

Issue and Service of Summons

Rule 1: Issue of Summons

When Summons is Issued:

After a suit is properly filed, a summons is sent to the defendant. The summons requires the defendant to:

• Appear in court.
• Respond to the claim by filing a written statement (if any) within 30 days from the date they receive the summons.

Exceptions:

No summons will be issued if the defendant is already present at the time of filing the case and admits the plaintiff’s claim.

Extension for Filing a Written Statement:

If the defendant cannot submit the written statement within the initial 30 days, the court may extend the deadline (for valid reasons) up to 120 days, with additional costs imposed.

If the defendant fails to file the written statement even after 120 days, they lose the right to do so, and the court will not accept it afterward.

How the Defendant Can Appear:

The defendant can appear in court:

• In person.
• Through a lawyer authorized to answer questions about the case.
• With a lawyer and someone knowledgeable about the case to answer questions.

Format of the Summons:

The summons must be:

• Signed by the judge or an authorized officer.
• Stamped with the court’s seal for authenticity.

This simplifies the process, ensuring defendants are properly informed while adhering to clear timelines.

Rule 2: Copy of the Plaint

Every summons must include a copy of the plaint, so the defendant is aware of the claims being made.

Rule 3: Court’s Power to Order Personal Appearance of Parties

• If the court finds it necessary, it can issue a summons requiring the defendant to appear in person on a specific date.
• Similarly, if the court feels the plaintiff’s personal appearance is necessary on that date, it can issue an order for the plaintiff to appear in person as well.

Rule 4: No Party to Be Ordered to Appear in Person Unless Residing Within Certain Limits

A party cannot be ordered to appear in person in court unless they live within certain distances from the court. Specifically, they can only be required to appear in person if they live:

1. Within the local limits of the court’s ordinary jurisdiction, or
2. Outside those limits but less than 50 miles away, or if there is public transport (like a train or steamer) covering at least 5/6th of the distance, they must be within 200 miles of the court.

Rule 5: Summons for Settlement of Issues or Final Disposal

When a court issues a summons, it decides whether the summons is meant for:

1. Settling Issues – To identify and clarify the points of dispute in the case.
2. Final Disposal – To resolve the case completely.

The summons will clearly mention its purpose.

Exception: For cases in a Court of Small Causes, the summons is always issued for the final disposal of the case, not just for settling issues.

Rule 6: Fixing a Date for the Defendant’s Appearance

The court must set a date for the defendant to appear based on:

• The court’s current schedule.
• The location of the defendant.
• The time required to deliver the summons.

The chosen date should give the defendant enough time to prepare and appear in court.

Rule 7: Summons to Include an Order for Producing Documents

The summons should instruct the defendant to bring all relevant documents (or copies) that they plan to use as evidence to support their case, as required under Order VIII, Rule 1A.

Rule 8: Summons for Final Disposal Requires Witnesses

If the summons is for the final resolution of the case, the defendant must also bring all witnesses they intend to rely on, along with their evidence, on the specified date.

Rule 9: Service by Officer or Other Means

Rule 9 of Order V in the Code of Civil Procedure, 1908, governs the delivery and service of summons. It specifies the methods and protocols for effectively notifying defendants about a case.

Sub-Rule 1: Delivery of Summons Within Court Jurisdiction

If the defendant resides within the jurisdiction of the court where the case is filed, or has an agent within the jurisdiction, the summons can be:

• Delivered by the proper officer (court officer) or their subordinates.
• Sent via court-approved courier services.

Sub-Rule 2: Role of a Proper Officer from Another Court

• A proper officer from another court can be appointed to serve the summons if needed.
• The manner in which the summons is sent to this officer is determined by the court.

Sub-Rule 3: Service by Post, Courier, or Electronic Means

Summons can also be served through:

• Registered post acknowledgment due (AD).
• Speed post or approved courier services.
• Fax or email, as per High Court rules.

This rule modernizes the service process, leveraging technology to expedite delivery.

Sub-Rule 4: Service of Summons Outside Court Jurisdiction

• If the defendant resides outside the court’s jurisdiction, the court can direct service using the methods in sub-rule (3) (except registered post AD).
• In such cases, the provisions of Rule 21 (specific to service by officers outside the jurisdiction) do not apply.

Sub-Rule 5: Declaration of Service Based on Acknowledgment or Refusal

If the court receives:

• An acknowledgment signed by the defendant or their agent.
• A returned postal article with an endorsement (from postal or courier employees) stating the defendant refused delivery,
  the court can declare the summons duly served.

Even if the acknowledgment is lost or delayed, if the summons was properly addressed, pre-paid, and sent via registered post AD, the court can consider it served after 30 days.

Sub-Rule 6: Panel of Courier Agencies

The High Court or District Judge must prepare a list of approved courier agencies to handle the service of summons.

Rule 9A: Summons Given to the Plaintiff for Service

Rule 9A of Order V, CPC, allows the plaintiff to directly serve summons to the defendant under specific conditions.

Sub-Rule 1: Application and Permission by the Court

The court may permit the plaintiff to serve the summons directly, in addition to the court’s service methods under Rule 9.

This is contingent on the plaintiff applying for such permission during the issuance of the summons for the defendant’s appearance.

Sub-Rule 2: Service Methodology

The plaintiff or their representative must deliver or tender the summons personally to the defendant.

The summons must be:

• Signed by the Judge or a court-appointed officer.
• Sealed with the court’s seal.

Alternatively, service can be performed using any method permitted under sub-rule (3) of Rule 9, such as electronic means, postal service, or courier.

Sub-Rule 3: Applicability of Rules 16 and 18

Rules 16 and 18, which govern acknowledgment and the proper recording of service, apply here.

The plaintiff or their representative serving the summons is considered equivalent to a court officer for compliance purposes.

Sub-Rule 4: Re-Issue of Summons by Court

If the defendant:

• Refuses to accept the summons.
• Declines to sign acknowledgment.
• Cannot be served for any valid reason.

The court, upon the plaintiff’s request, will re-issue the summons and take responsibility for serving it through official methods.

Rule 10: Mode of Service

Summons must be delivered or handed over as a signed copy, either by the Judge or an authorized officer, and it should have the court’s official seal.

Rule 11: Service on Multiple Defendants

If there are multiple defendants in the case, each one must receive a separate summons unless the law specifies otherwise.

Rule 12: Service on the Defendant or Their Agent

Whenever possible, the summons should be served directly to the defendant in person. However, if the defendant has an agent authorized to accept the summons, serving it to the agent is sufficient.

Rule 13: Service On Agent By Whom Defendant Carries On Business

Rule 13 of Order V of the Code of Civil Procedure (CPC), 1908 addresses the service of summons in cases where the defendant does not reside within the local jurisdiction of the court but is engaged in business or work within the jurisdiction.

The rule provides for the service of summons to be carried out on an agent or manager who is responsible for carrying on that business or work within the local limits of the court.

Sub-Rule 1: Service on Agent or Manager

The first part of Rule 13 states that if the defendant is not residing within the local limits of the court’s jurisdiction, the summons may be served on any manager or agent of the defendant who is personally engaged in carrying on the business or work within that jurisdiction. Such service on the agent is considered as valid service.

Sub-rule 2: Master of a Ship as an Agent

Sub-rule (2) extends the application of Rule 13 to cases involving the ownership or charter of a ship. It clarifies that for this rule, the master of a ship is deemed to be an agent of the ship’s owner or charterer.

Rule 14: Service on Agent in Charge in Suits for Immovable Property

In cases involving immovable property, if the summons cannot be served directly to the defendant and the defendant has no authorized agent, the summons can be served on any agent managing or in charge of the property.

Rule 15: Service on an Adult Member of the Defendant’s Family

If the defendant is not present at their residence when summons delivery is attempted, and it is unlikely that they will be available at their residence soon, the summons may be served to any adult family member (male or female) residing with the defendant.
Explanation: A servant is not considered a family member under this rule.

Rule 16: Person Served to Sign Acknowledgment

When the summons is handed over to the defendant, their agent, or another authorized person, the serving officer must obtain the recipient’s signature on the acknowledgment of service, which is then endorsed on the original summons.

Rule 17: Procedure When Defendant Refuses to Accept Service or Cannot Be Found

If the defendant or their agent refuses to acknowledge receipt of the summons, or if the defendant cannot be located despite reasonable efforts:

1. The serving officer must affix a copy of the summons on the outer door or another prominent part of the defendant’s residence, business premises, or workplace.
2. The officer must then submit the original summons to the court with a detailed report explaining the circumstances, including details of witnesses who identified the house or were present when the summons was affixed.

Rule 18: Endorsement of Time and Manner of Service

The serving officer must record and attach to the original summons a statement specifying:

• The time and manner of service.
• The name and address of the person (if any) who identified the recipient and witnessed the delivery or tender of the summons.

Rule 19: Examination of Serving Officer

If a summons is returned under Rule 17, the Court:

• Must examine the serving officer on oath if the return is not verified by an affidavit.
• May examine the officer even if verified by an affidavit.
  The Court can investigate further to decide whether the summons was properly served or order new service if needed.

Rule 19A: Simultaneous Issue of Summons for Service by Post

Omitted by the Code of Civil Procedure (Amendment) Act, 1999.

Rule 20: Substituted Service

If the defendant avoids service or cannot be served normally, the Court can order substituted service.

This may include:

• Affixing a copy of the summons at a conspicuous location in the Court.
• Placing it at the defendant’s last known residence or workplace.
• Service through other means, such as an advertisement in a local newspaper (if ordered).

Effect: Substituted service is legally equivalent to personal service.

Appearance Time: The Court will set a time for the defendant to appear after substituted service.

Rule 20A: Service of Summons by Post

Repealed by the Code of Civil Procedure (Amendment) Act, 1976.

Rule 21: Service of Summons Where Defendant Resides Within Jurisdiction of Another Court

The issuing Court may send the summons to another Court with jurisdiction where the defendant resides using:

• Its officer.
• Post, courier, fax, email, or any method approved by the High Court.

Rule 22: Service Within Presidency Towns of Summons Issued by Courts Outside

Summons issued by Courts outside the limits of Calcutta, Madras, or Bombay must be sent to the Court of Small Causes within the jurisdiction where the defendant resides.

Rule 23: Duty of Court to Which Summons Is Sent

The receiving Court must:

1. Handle the summons as though it had issued it.
2. Return it to the issuing Court with a record of its proceedings.

Rule 24: Service on Defendant in Prison

If the defendant is in prison, the summons must be delivered or sent (via post, courier, fax, or email, as approved by the High Court) to the officer in charge of the prison for serving the defendant.

Rule 25: Service Where Defendant Resides Out of India and Has No Agent

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 their place of residence and sent through:

• Post or approved courier service
• Fax message
• Electronic Mail service
• Any other means as provided by the High Court rules

Provided that if the defendant resides in Bangladesh or Pakistan, the summons may be sent to any Court in that country having jurisdiction in the place where the defendant resides.

If the defendant is a public officer or a servant of a railway company or local authority in Bangladesh or Pakistan, the summons may be sent to the specified officer or authority in that country as notified by the Central Government.

Rule 26: Service in Foreign Territory Through Political Agent or Court

Political Agent or Court Service:

• If a defendant resides, carries on business, or personally works for gain in a foreign territory, the summons may be sent to a Political Agent or Court in that territory.
• If there is no Political Agent or Court with jurisdiction, the Central Government may specify a local officer for service, notified in the Official Gazette.

Service Evidence:

• Endorsements from the Political Agent or Court indicating that the summons was served on the defendant shall be considered evidence of service.

Rule 26A: Summonses to be Sent to Officers in Foreign Countries

When the Central Government notifies in the Official Gazette about any foreign territory, summonses for defendants residing or working there may be sent to a specified officer of the foreign government.

Endorsements from this officer confirming service shall serve as evidence.

Rule 27: Service on Civil Public Officer or Servant of Railway Company or Local Authority

For public officers (excluding military, naval, or air force personnel) or servants of railway companies or local authorities, the Court may send the summons for service to the head of the office where the defendant is employed, along with a copy for the defendant to retain.

Rule 28: Service on Soldiers, Sailors, or Airmen

If the defendant is a soldier, sailor, or airman, the Court must send the summons to their commanding officer, along with a copy for the defendant to retain.

Rule 29: Duty of Person to Whom Summons is Delivered or Sent for Service

Service Obligation:

The person to whom a summons is delivered or sent must serve it if possible and return it with a written acknowledgment of service from the defendant. The defendant’s signature serves as evidence of service.

Non-Service Evidence:

If service is impossible, the summons must be returned to the Court with a full statement explaining why service failed, which also serves as evidence of non-service.

Rule 30: Substitution of Letter for Summons

1. Court’s Discretion: The Court may substitute a letter for a summons if it believes the defendant’s rank entitles them to such consideration.
2. Treatment: The substituted letter must contain all required particulars of a summons and will be treated as a summons in all respects.
3. Delivery Method: The letter may be sent by post, special messenger, or any other suitable manner, and if the defendant has an agent empowered to accept service, it may be delivered or sent to such agent.

Verdict

Each rule under Order V is designed to ensure that the defendant receives a summons effectively, preserving their right to due process while preventing delays.

Proper understanding and adherence to these rules are critical for ensuring the smooth progress of civil suits in the Indian legal system.