A PROJECT ON

Code of Civil Procedure

1908
Summon

Akshi Tandon
7TH semester
Ballb (hons)
Amity Law School
Lucknow Campus

Faculty Name-:

Vijita Dua

Index …

1
Topic PG
Definition 3

Object 3

Essentials of Summons 4

Purpose Of summons 5

Summon of Court Appearance in person 5-6

Exemption from Appearance in person 7-8

Modes of service in Summons 9-10

Summons

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“A summon is a document issued from office of court of
justice calling upon the person to whom it is directed to
attend before a judge or officer of a court for a certain
purpose “
When the plaintiff files a suit the defendant has to be informed that suit
has been filed against him and that he is required to appeal in the court to
defendant by the court is technically summons

Object1

When plaintiff files a suit against the defendant and a claimed relief is
claimed and the defendant must given an opportunity must be given to
defendant to say against the prayer which plaintiff has claimed against the
defendant. According the natural justice rule “audi alteram patterm” no
one should be unheard to this rule the object of summons is created that if
the a suit if filed against the defendant he should be not left un heard from
the claims which plaintiff has raised against the defendant hence it says
no one should be condemn of hearing

Essential of Summons

1
Aid Advice vs. Bar Council of India 1995

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1) The summons may be issued to the defendant to issue to the defendant
to appear and answer the claim and to file a written statement within 30
days from the date of service of summons on him .The defendant has now
to file the written statements within 30 days of service of summons and in
case of defendant is not able to file against 30 days the court is given a
discretion to allow the defendant to file the written statement within a
maximum period of 90 days for which the court have to give reasons in
writing every summon should be signed by the judge or the officer
appointed by court and shall be sealed 2

2) Without a copy of the plaint no summons is valid3. If the summons is

not accompanied by a copy of the plaint or (where so permitted) a copy of
the concise statement, it is not a valid service.4However when the
defendant was not showing any interestto receive a copy of the plaint on
the date fixed for supply of copy or on any other date thereafter a plea
that the summons must be accompanied with the plaint is not
entertainable5 . After the amendment brought into force with effect from
1 july 2002,the concise statement of the plain is not sufficient .

Purpose of Summons

2
0rder 5 rule number 1
3
Suresh Chandra vs Gosaidas AIR 1976 Cal 87
4
Laxmi vs keshrimal jain AIR 1995 MP 178
5
Lakpa Sherpa v Tempa Sherpa AIR 1997 Sikkim 1.

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Attendance of witness6:
The defendant is also to be directed to produce his witness too, on the
date fixed for his appearance7 with the evidence or documents or other
material objects

For settlement of issue and final disposal of suits8 :

Though this mandatory in terms it has been construed as directory.
Therefore the omission to follow the prescription laid down in this rule
does not invalidate the summons and the service of a composite writ is
due service 9 as a general rule summons for final disposal of suits should
be issued only in simple cases10

Summon of Court Appearance in Person11

Where the party has been summon to appear in person and fails to do so.
This clear from the fact that the words under the provisions of section 66
or 436 (now Order 5 rule 3 and Order 29 rule 3 respectively) which
occurred in the corresponding section 107 of the code 1882 have been
omitted from present rule12. The court has power to strike out defence of a
defendant who disobeys an order for personal appearance under order 3
rule 1 but this is a highly penal procedure which cannot be adopted if the
defendant disobeys a witness summons13. So it was held that where the
defendant had applied under Order16 Rule 10 to examine the plaintiff as
his witness it was not proper to pass an order under Order 3 rule 1
directing him to appear and dimmising the suit for a deafault in
6
Order 5 rule 8
7
Sudrershan devi vs SushilaDevi (1999)4 LRI 993
8
Oder 5 rule 5
9
Narendranarh v amiya choudhary AIR 1959 Cal 231 overrulling mader khan vs Kaiser ali (1958)62
cwn 718
10
(1914) ILR 38 bom 377,380,24 ic 665
11
Order5 rule 3 and Order9 rule 12
12
Vaiguntahammal vs Valliamman (1918) ILR 41 Mad lj 734 146 IC 536 AIR 1933 Mad 821
13
Appavoo vs Sooranamal (1933) 65 Mad LJ 734,146 IC 536 AIR 1933 Mad 821

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appearance under this rule14 .where the plaintiff was order to appear on
specific date but the suit was adjourned to another date, an order
dismissing the suit for non appearance on that date is illegal15
The court has no power under this rule to dismiss the suit of a minor on
the ground that his next friend who has been directed to appear failed to
do so16.but where guardian of a defendant who was alleged to be lunatic
failed to prodeuce him in court as directed it was held that defence could
be struck out 17

14
Suryanarayabaraju vs Appanna AIR 1959 AP 645
15
Sundara vs Mallu (1917) ILR 39 All 476 AIR 1917 All 95
16
Auni Ammal vs Mutthu Kumar 23 MLJ 676
17
Ayya Nadan vs Senni Ammal 11 LW 289

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Exemption from Appearance 18
a) If the defendant resides outside the jurisdiction of the Court, the
summons may be forwarded to the Court having jurisdiction at the place
where the defendant resides or carries on his business or personally works
for gain through or by the above modes of service as per the rules
prescribed by the High Court or outside such limits but less than 50 miles
n more than 200 miles from the court house

b) i)Pardanashin women is exempted from personal appearance of court

but not from the attendance of the court. The appearance word over here
means that Pardanashin woman shall not be compelled to come forth into
the view 19.But in Kissen lal vs Purshottam Das the distinction between
personal appearance and personal attendance has not been accepted 20
Once it is found that lady is pardanashin then she is entitled as a matter of
course , to be examined on commission , unless the application is mala
fide and amounts to an abuse of the process of the court 21or she is shown
to have abandoned the custom of parda22. However a change in the mode
of life of a particular lady can be taken into consideration in exercising
the discretion in the grant of the application for examination on
commission. Further, a woman who abandons the customary gosha is
not entitled to be examined on commission23 24.

ii) 25 This provides for classes of persons exempted from appearance and
it is no more a ground for issuing a commission that the person sought to
be examined, is a person of rank. It was accordingly held that a Bishop
was not entitled as a high dignitary of the church to exemption26.
A person belonging to a class of person exempted from appearance in
court as a matter of course has to be examined on commission. Whenever
a person in the class of person in the classes mention is to be examined on
examination the costs of such commission have to borne by that person or
by the party requiring the evidence of such person
18
Order 5 Rule 4 combined with section 132 and 133 of code of civil procedure 1908
19
Re Bilasroy (1929) ILR 56 Cal 865 and 528; Marian Bai vs Abdul Hamid AIR 1946 bom 340;sakina
vs zanab bibi 10 Raj 1058 AIR 1967 Raj 122
20
(1941) ILR 2Cal 155, AIR 1942 Cal 143 ; Sunder devi vs Dattatraya ILR 55 All 666,AIR 1933 All
551;Mohammad ismail vs Wazir bibi 1951 Mad 433 AIR 1951 Mad 311 (fb)
21
Gyassibai vs Mangilal AIR 1958 MP 25; Mohd Ismail vs Wazir bibi Sahiba 1951 Mad 433 AIR 1951
Mad 311
22
Rahuria ramkali kuer vs Chhatoo Singh AIR 1961 Pat210
23
Akasam peda vs Raja AIR 1966 AP 222
24
Order 26 Rule 3
25
Section 133 of code of civil procedure 1908
26
AM vs st Francis Xavier church AIR 1961 Mad 31

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Modes of Service of Summons

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The object of the service of a summons, in whatever way it may be
effected (other than substituted service to which other consideration
apply),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 suit27. Where the defendant is not served with
summons the mere fact that he had knowledge of the suit is immaterial28.

1) Personal or Direct Service

The service of summons may be made by delivering or transmitting a
copy thereof by registered post acknowledgment due addressed to the
defendant or to his agent empowered to accept the service or by speed
post or by such courier service as are approved by the High Court or by
fax or electronic mail service. These types of services shall be made at the
expenses of the plaintiff

2) Extended Service
Where no attempt is made to find the defendant and the summons is
served. The inquiry as to the where about of the defendants must not be
perfunctory29. Service of notice on a boy who is not an adult is not valid30
Service of notice on the husband of the defendant is not valid service
under this rule unless it is shown that the conditions mentioned in the rule
were satisfied 31. When summons intended for a pradanashin lady
tendered to a male member of the family who was separate it was held
not be sufficient32.if a pardanashin lady could not be found and adult
members refuse to accept service , copy of notice can be affixed on the
front door in the presence of witness 33

3) Substituted Service
it is not service in the ordinary sense of the word . its is a artificial
proceeding upon a fiction imported by necessity. Further , it should be
effected as a last resorts to it all the conditions laid down for it must be
fulfilled34 and an application for substituted service should not be allowed
automatically35 .service by publication should be ordered when the court
is satified that personal service is not possible36. Where the plaintiff knew
27
Bhomshetti vs Umabai (1897) ILR 21 BOM 223 225
28
Bengal chand and co vs Durga Shankar Gowri Shankar
29
Bharam Chand vs Kanak (1921) 26 CWN 359,68 IC 991 AIR 1921
30
BDB Prasad vs Bank of India AIR 1995 MP 234
31
Eravi Pillai Vs Maluk Mohammad 1953 ILR Tr & Co 405 AIR 1953
32
Labanga dibya vs Prahlad Patri 1960 ILR Cut 522
33
Mehtab Bai vs Mst motan bai 1960 ILR 10 Raj 1088
34
Johri lal vs income tax commissioner AIR 1967 All 170
35
Yallawwa vs Shantavva 1997 2 SCC 159
36
Advertising service vs The Hindustan times ltd AIR 1998 Del 14

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the where abouts of the defendant and in spite of the fact, obtained by a
false representation an order for substituted service by giving the court to
understand that the defendant had been deliberately avoiding service it
was held that the defendant had not been properly served37.
Where the order for substituted service was made on the representation
that the defendant has been residing at a particular place when as a
matter fact the defendant never resided there for sometime past and on
such representation the court was induced to hold that the substituted
service was properly effected the service was held not to be proper38 is
cast on the court to summon the defendant and for that purpose to pass
appropriate orders under under the code the duty is cast on the court to
summon the defendant and for that purpose to pass appropriate orders
under the rules no duty is cast on the plaintiff to take the summon him
self and to serve it on the defendant 39

Bibliography
1) Mulla (Code Of Civil Procedure) Abridged
2) Takwani (Code Of Civil Procedure)
37
Tarachand vs Santokh 1935 153 IC 80 AIR 1935 lah 129
38
Kedar v wazifunnessa 1934 60 Cal LJ 106
39
Jai hind timber depot vs Gian Chand AIR 1954 Punj 174

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3) Scribd.com

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