What is a Summons : Meaning
The common question is asked by many people is what is a summons.
when the plaintiff files a suit, the defendant has to be informed that the Suit has been filed against him and that he is required to appear in the Court to defend it. The intimation which is sent to the defendant by the court is technically known as “summons”.
Though the said expression (summons) has not been defined in the Code, according to the dictionary meaning,
“A summons is a document issued from the office of a court of justice, calling upon the person to whom it is directed to attend before a judge or ofncer of the court for a certain purpose.”
The answer of What Is a Summons is explained now we will discuss few things about summons.
(Also read : Codification of Law, Advantages and Disadvantages)
what is a summon and its Essentials
When a suit is filed by the plaintiff against the defendant and a relief is claimed, the defendant must be given an opportunity as to What he has to say against the prayer made by the plaintiff. This is in consonance with the principle of natural justice as no one can be condemned unheard (audi alteram partem). If the defendant is not served with the summons, a decree passed against him will not bind him and if he don’t know about What is a summons then he will be explained by the person.
Essentials of summons: Rules 1-2
Every summons shall be signed by the judge or such officer appointed by him and shall be sealed with the seal of the court, and must be accompanied by a plaint.
Form of summons
Every summons should be in the Forms prescribed in Appendix B to the (First) Schedule of the Code.
Summons to defendant: Section 27; Order 5 Rule 1
Order 5 deals with summons (what is a summons) to a defendant while Order 16 deals with summons to witnesses. When a suit has been duly filed by presentation of a plaint, the court must issue summons to the defendant calling “P0” him to appear and answer the claim of the plaintiff by filing a Wilma statement within thirty days from the date of service of summons. No summons, however, will be issued by the court if, at the time of presentation of a plaint, the defendant is present and admits the plaintiff’s claim.
Appearance in person: Rule 3
A defendant to whom a summons has been issued, may appear (I) in person; or (a) by a pleader duly instructed and able to answer all material questions relating to the suit; or (3) by a pleader accompanied by some person able to answer all such questions.141 The court, however, may order the defendant or plaintiff to appear in person.142
Exemption from appearance in person: Sections 132-33; Rule 4
No party shall be ordered to appear in person:
(1) unless he resides
(a) within the local limits of the court’s ordinary original jurisdiction or outside such limits, but at a place less than (i) so miles; or (ii) 200 miles (where public conveyance is available) from the courthouse or
(b) who is a woman not appearing in public; or
(6) who is entitled to exemption under the Code.
(h) Contents of summons: Rules 5-8
The summons must contain a direction whether the date fixed is for settle~ ment of issues only or for final disposal of the suit. In the latter case, the defendant should be directed to produce his witnesses. The court must give sufficient time to the defendant to enable him to appear and answer the claim of the plaintiff on the day fixed. The summons should also contain an order to the defendant to produce all documents or copies thereof in his possession or power upon which he intends to rely on in support of his case.
(i) Mode of service of summons: CPC Rules 9-30 of summon- Heading – “What is a Summon”
The service of summons is of primary importance as it is a fundamental rule of the law of procedure that a party must have a fair and reasonable notice of the legal proceedings initiated against him so that he can defend hims if. The problem of service of summons is one of the major causes of delay in the progress of the suit. It is common knowledge that defendants try to avoid service of summons. The Law Commission considered a, Problem and it was felt that certain amendments were necessary in Ill; direction and a defendant can be served by a plaintiff or through megt em means of communication. Accordingly, amendments were made in the Code in 1976, 1999 and 2002.
The Code prescribes five principal modes of serving a summons ma defendant:
( 1) Personal or direct service: CPC Rules 10-16, 18
Rules IO to 16 and I8 deal with personal or direct service of summonS upon the defendant. This is an ordinary mode of service of summons. Here the following principles must be remembered:
- Wherever it is practicable, the summons must be served to the defendant in person or to his authorised agent.”
(ii) Where the defendant is absent from his residence at the time of service of summons and there is no likelihood of him being found at his residence Within a reasonable time and he has no authorised agent, the summons may be served on any adult male or female member of the defendant’s family residing with him.” A servant, however, cannot be said to be a family member.”
(iii) In a suit relating to any business or work against a person, not residing within the territorial jurisdiction of the court issuing the summons, it may be served to the manager or agent carrying on such business or work.”
(iv) In a suit for immovable property, if the service of summons can not be made on the defendant personally and the defendant has no authorised agent, the service may be made on any agent of the defendant in charge of the property?” Where there are two or more defendants, service of summons should be made on each defendant.”
In all the above cases, service of summons should be made by delivering or tendering a copy thereof. Where the serving officer delivers or tenders a copy of summons to the defendant personally or to his agent or othei person on his behalf, the person to whom the copy is delivered or tendered must make an acknowledgment of service of summons.” The serving officer, thereafter, must make an endorsement on the original summon? stating the time and manner of service thereof and the name and address of the person, if any, identifying the person served and witnessing the delivery or tender of summons.
Service by court: CPC Rule 9
Summons to defendant residing within the jurisdiction of the court shall be served through court officer or approved courier service.“ Summons can. also he served by registered post, speed post, acknowledgment due (RPAD), courier service, fax, message, e-mail service or by any other per-l ,nissible means of transmission.161 Where the defendant is residing out-J side the jurisdiction of the court, the summons shall be served through an officer of the court within whose jurisdiction the defendant resides.
Though there can be no objection in giving an opportunity to the plainv tiff to serve summons on the defendant, there should be sufficient safee guards to avoid false report of service of summons. High Courts should make appropriate rules or issue practice directions to ensure that the pro« visions are properly implemented and there is no abuse of process of law.“
Service by plaintiff: CPC Rule 9-A
The court may also permit service of summons by the plaintiff in addition to service of summons by court.
Substituted service: CPC Rules 17, 19-20
“Substituted service” means the service of summons by a mode which is substituted for the ordinary mode of service of summons. There are two modes of substituted service. They are:
(a) (i) where the defendant or his agent refuses to sign the acknowledgment; or (ii) Where the serving officer, after due and reasonable diligence, cannot and the defendant who is absent from his residence at the time of service of summons and there is no likelihood of him being found at his residence within a reasonable time and there is no authorised agent nor any other person on whom service can be made, the service of summons can be made by afhxing a copy on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works. The serving officer shall then return the original to the court from which it was issued with a report endorsed thereon stating the fact about affixing the copy, the circumstances under which he did so, and the name and address fo the person, if any, by whom the house was identified and in whose presence copy was affixed.“‘ If the court is satisfied, either on the affidavit of the servin§ officer or on his examination on oath, that the summons has been duly served it may either declare that the summons has been duly served or may make further inquiry in the matter as it thinks fit.
(b) Where the court is satisfied that there is reason to believe that the defendant avoids service or for any other reason the summons cannot be served in the ordinary way, the service may be effected in the following manner by affixing a copy of the summons in some conspicuous place in the courthouse; and also upon some conspicuous part of the house in which the defendant is known to have last resided, carried on business or personally worked for gain; or (if) in such manner as the court thinks fit.
It, however, must be remembered that this is not a regular mode of service and hence, it should not normally be allowed and can be effected only as a last resort. Before more than a century ago, in Cohen v. Nursing Dassm, it was stated, “It is true that you may go to a man’s house and not find him, but that is not attempting to find him. You should go to his house, make enquiries and, if necessary, follow him. You should make enquiries to find out when he is likely to be at home, and go to the house at a time when he can be found. Before service like this can be effected it must be shown that proper efforts have been made to find out when and where the defendant is likely to be found-not as seems to be done in this country, to go to his house in a perfunctory way, and because he has not been found there, to affix a copy of the summons on the outer door of his house.”
Where the court orders service by an advertisement in a newspaper, the newspaper should be a daily newspaper circulating in the locality in which the defendant is last known to have actually or voluntarily resided, carried on business or personally worked for grain)” Such service is an effective service, even if the defendant is not the subscriber of the newspaper or is not reading it.
Under Rule 2.0, the service of summons is effected by the order of the court only after the court is satisfied that the defendant avoids service of summons or it cannot be served in the ordinary way. Such satisfaction must be recorded by the court in writing)” Substituted service is as effective as personal service)” The court must fix a time for the appearance of the defendant and give him a reasonable time to appear before the court.
Service by post
When an acknowledgment purporting to be signed by the defendant or his agent is received by the court, or the defendant or his agent refused to take delivery of summons when tendered to him, the court issuing the summons shall declare that the summons had been duly served on the defendant.180 The same principle applies in a case where the summons was properly addressed, prepaid and duly sent by registered post, acknowledgment due, and the acknowledgment is lost or not received by the court within thirty days from the date of issue of the summons. Where the summons sent by registered post is returned with an endorsement “refused”, the burden is on the defendant to prove that the endorsement is false.”‘
Where the defendant refuses to accept summons. He is deemed to have been served. Similarly, where an acknowledgment or receipt purported to have been signed by the defendant (or his agent) is received by the court that the defendant (or his agent) has refused to take the delivery of summons, the court will proceed treating the defendant as served.
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