Summons and Service of Foreign Summons

A summons is a court's formal call to a defendant to appear and answer the plaintiff's claim. It is the mechanism by which a court asserts personal jurisdiction over the defendant. Without valid service of summons, proceedings against the defendant are void.

Legal Framework

Contents of Summons (Order 5 R.2)

Every summons must:

1. Be signed by the judge or presiding officer
2. Bear the seal of the court
3. State the date fixed for appearance
4. Require the defendant to appear and answer the claim
5. Contain a copy of the plaint

Why: Summons must convey complete information so the defendant can prepare a defence.

Modes of Service (Order 5 R.9 to R.20)

Substituted service is an exception. The court must be satisfied that ordinary service is impracticable or that the defendant is evading service before ordering substituted service.

Why: If ordinary modes are always used for evaders, defendants could frustrate suits indefinitely.

Effect of Non-Service and Refusal

Service on Defendant in Another State (S.28)

Where the defendant resides in a different state, the issuing court sends the summons to a court in that state for service. The receiving court serves the summons as if it were its own.

Service of Foreign Summons (S.29)

S.29 deals with summons issued by foreign courts or courts outside India:

1. Summonses from (a) a civil or revenue court in a part of India to which the CPC does not extend, (b) a court established or continued by the Central Government outside India, or (c) any other court outside India to which the Central Government has applied the section by notification, may be sent to courts in India.
2. The Indian court serves the summons in the manner prescribed for service of its own summons.
3. S.29 itself does not say how proof of service is returned to the foreign court.

Why: International civil litigation requires cross-border service mechanisms. Without S.29, a foreign plaintiff could not enforce service on a defendant present in India.

Notification: For an ordinary foreign court, S.29 applies only if the Central Government has issued a notification under clause (c). There is no proviso to S.29.

Exemption from Personal Appearance (S.133)

S.133(1) entitles the following to exemption from personal appearance in court: the President, the Vice-President, the Speaker of the House of the People, Union Ministers, Supreme Court Judges, Governors and Administrators of Union territories, Speakers of State Legislative Assemblies, Chairmen of State Legislative Councils, State Ministers, High Court Judges, and persons to whom S.87B applies.

If such a person claims the exemption and must be examined by commission, he pays the costs of the commission unless the party requiring his evidence pays (S.133(3)). The exemption is from personal appearance, not from the duty to give evidence.

Old Law to New Law

• 1976 (Act 104 of 1976): O.V R.17 was amended to cover a defendant absent from his residence with no likelihood of being found there, and R.20(1A) was inserted requiring newspaper advertisements to be in a daily circulating where the defendant last resided or worked.
• 1999 and 2002 (Act 46 of 1999 and Act 22 of 2002, in force 1 July 2002): R.9 was substituted to allow service through approved courier services, registered post AD, speed post, fax and email under High Court rules, and R.9A allowed the plaintiff to serve the summons himself with the court's permission.

Requirements

To test whether a defendant was validly served, check:

1. Summons issued under S.27 with the contents in O.V R.2, signed and sealed (R.10).
2. Mode used is one authorised by O.V: personal service (R.12), agent (R.12 to R.14), adult family member (R.15), post, courier, fax or email (R.9(3)), or service by the plaintiff (R.9A).
3. If refused or the defendant cannot be found: affixing under R.17 and the court's declaration under R.19.
4. Substituted service only on the court's satisfaction under R.20(1); it is then as effectual as personal service (R.20(2)) and the court fixes a time for appearance (R.20(3)).
5. Outside the State or from abroad: S.28 or S.29.

Illustrations

1. Courier service: P sues D in Hyderabad. The court sends the summons through a court-approved courier under O.V R.9(3). The courier returns an acknowledgement signed by D. Service is valid; the cost is borne by the plaintiff.

2. Refusal: The process server tenders the summons to D, who refuses to sign. The server affixes a copy on the outer door (R.17) and returns the original with a report. The court examines the server under R.19 and declares service duly effected. D cannot later say he was not served.

3. Substituted service: D has moved without trace. After two failed attempts, the court is satisfied that the summons cannot be served in the ordinary way and orders service by affixing in the court-house and by advertisement in a local daily (R.20(1), (1A)). This is as effective as personal service (R.20(2)).

4. Exempt person: A Union Minister is a necessary witness. Under S.133 he is exempt from personal appearance; his evidence may be recorded on commission.

Key Cases

Sunil Poddar v Union Bank of India (2008) Sunil Poddar v Union Bank of India 2008
Issue: Whether defendants who knew of the proceedings could have an ex parte order set aside on the ground that summonses were not duly served.
Rule: O.IX R.13 allows an ex parte decree to be set aside where the summons was not duly served, but a defendant who had notice and suppresses that fact cannot rely on defective service.
Held: The defendants had filed a written statement and been represented while the suit was in the civil court; after transfer to the Debts Recovery Tribunal they did not appear. Their application to set aside the ex parte order, which suppressed these facts, was rightly dismissed.

Bhanu Kumar Jain v Archana Kumar (2005) Bhanu Kumar Jain v Archana Kumar 2005
Issue: What remedies a defendant has against an ex parte decree, and what may be argued in each.
Rule: An application under O.IX R.13 and a first appeal under S.96(2) are both available.
Held: If the O.IX R.13 application fails, the defendant cannot reargue non-service or sufficient cause in the appeal, but may argue on the merits that the plaintiff's evidence did not justify the decree, or that the court lacked jurisdiction.

Distinctions

Criticism and Debate

• Delay in service is a leading cause of delay in civil suits. The 1999 and 2002 amendments added courier, fax and email service and a thirty-day target in S.27, but in practice service still often takes months.
• Courier risk: Courier returns are easier to manipulate than service by a court officer, so courts must examine them carefully before proceeding ex parte.
• Balance: Sunil Poddar shows that the courts will not let a defendant who knew of the suit exploit a defect in service. The law aims at actual notice, not technical perfection.
• Conclusion: Electronic service under High Court rules is the most promising route to faster service.

Essay Outline

1. Introduction: Summons as the basis of the court's jurisdiction over the defendant and of natural justice.
2. Issue and contents: S.27; O.V R.1, R.2.
3. Modes of service: R.9, R.9A, R.12 to R.15, R.17, R.19, R.20.
4. Service outside the State and from abroad: S.28, S.29.
5. Exemption: S.133.
6. Consequences: ex parte proceedings and O.IX R.13; Sunil Poddar; Bhanu Kumar Jain.
7. Criticism and conclusion.

Recall Check

1. What are the contents of a summons under Order 5 R.2?
2. When can substituted service be ordered?
3. How does S.29 CPC facilitate service of foreign summons in India?
4. Who is exempt from personal appearance under S.133?
5. What does O.V R.17 require when the defendant refuses to accept service?
6. What did Sunil Poddar v Union Bank of India decide about defective service?

Flashcards