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
| Provision | Subject |
|---|---|
| S.27 | Summons to defendant |
| S.28 | Service on defendant in another state |
| S.29 | Service of foreign summons |
| Order 5 | Issue and service of summons |
| Order 5 R.2 | Contents of summons |
| Order 5 R.9 to R.30 | Modes of service |
| Order 5 R.20 | Substituted service |
Contents of Summons (Order 5 R.2)
Every summons must:
- Be signed by the judge or presiding officer
- Bear the seal of the court
- State the date fixed for appearance
- Require the defendant to appear and answer the claim
- 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)
| Mode | When Used |
|---|---|
| Personal (direct) service | Delivering summons to defendant personally |
| Service on agent | Where defendant is absent, on authorised agent |
| Service on adult member of household | When defendant not found at residence |
| Substituted service (R.20) | When ordinary service impracticable; by affixing notice or newspaper |
| Service by post (R.9A) | By registered post with acknowledgment due |
| Electronic service | Where court permits (post-2002 amendment) |
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
| Situation | Effect |
|---|---|
| Defendant refuses to accept summons | Deemed served |
| Defendant cannot be found | Court may order substituted service |
| Summons returned unserved | Court re-issues summons |
| No appearance despite service | Ex-parte procedure (Order 9) |
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:
- A summons from a foreign court may be sent to a Civil Court in India for service.
- The Indian court serves the summons in the manner prescribed for service of its own summons.
- A certificate of service is sent back 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.
Reciprocal arrangements: The Indian government may enter into reciprocal arrangements with foreign countries for mutual service of summons (S.29 proviso).
Recall Check
- What are the contents of a summons under Order 5 R.2?
- When can substituted service be ordered?
- How does S.29 CPC facilitate service of foreign summons in India?
Key Cases
Madan Lal v. Mst. Gopi (1981) Madan-Lal-v-Mst-Gopi-1981 Issue: Whether service on an adult household member at the defendant's residence constitutes valid service. Rule: Order 5 R.12 permits service on an adult member of the defendant's family at the usual place of residence; such service creates a presumption of knowledge. Held: Service on an adult member of the household is valid even if the defendant is not personally present; a presumption of knowledge arises.
Bhanu Kumar Jain v. Archana Kumar (2005) Bhanu-Kumar-Jain-v-Archana-Kumar-2005 Issue: Whether a court can pass an ex-parte decree without verifying proper service of summons. Rule: Before proceeding ex-parte, the court must satisfy itself that summons was duly served; mechanical ex-parte proceedings without verifying service violate due process. Held: A court cannot pass an ex-parte decree without first applying its mind to whether service was proper.
Distinctions
| Aspect | Ordinary Service | Substituted Service |
|---|---|---|
| Method | Personal or to household | Affixing notice / newspaper |
| Condition | Default mode | Only when ordinary service impracticable |
| Court order needed | No | Yes |
| Validity | Immediately valid on tender | Valid after court satisfies itself |
Flashcards
Q: What is a summons? A: A court's formal call to a defendant to appear and answer the plaintiff's claim.
Q: Under Order 5 R.20, when can substituted service be ordered? A: When the court is satisfied that ordinary service is impracticable (defendant cannot be found or is evading service).
Q: What is the effect of a defendant refusing to accept a summons? A: The summons is deemed to have been duly served.
Q: What does S.29 CPC deal with? A: Service in India of summons issued by foreign courts. The Indian court serves the summons as its own and returns a certificate of service.
Q: What happens if the defendant does not appear despite valid service? A: The court may proceed ex-parte under Order 9.
Q: Can electronic service of summons be ordered? A: Yes, by order of court, following the 2002 amendment permitting electronic modes of service.
Exam Scenario
A foreign company in Germany obtains a court order requiring an Indian defendant to appear before a German court. The German court sends summons to an Indian civil court for service. The Indian defendant argues the Indian court has no authority to serve a German summons. Decide.
S.29 CPC expressly provides for service of foreign summons in India. A civil court in India can serve summons issued by a foreign court, treating it as its own summons for the purpose of service. The Indian court follows the modes prescribed under Order 5. The defendant's objection fails because S.29 provides the statutory authority. Once served, the certificate of service is returned to the German court. The Indian court's role is limited to service; it does not adjudicate the foreign dispute.