Description

Section 28 of the Code of Civil Procedure (CPC), 1908, deals with the service of summons on a defendant who resides in another state or outside the territorial jurisdiction of the court in which the suit has been filed. This provision ensures that the plaintiff can still initiate legal proceedings in their local court even if the defendant resides in a different state or jurisdiction, as long as the case falls within the jurisdictional limits allowed by the law.

The section lays down specific procedures to ensure the defendant is properly notified of the lawsuit, even if they are outside the geographical reach of the court, thus preserving the principles of natural justice and ensuring the defendant has an opportunity to defend themselves.

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Key Features of Section 28 - Service of Summons Where Defendant Resides in Another State

1. Service of Summons to Out-of-State Defendants:

   • Section 28 addresses the situation where a defendant resides in a different state from the one in which the suit is filed. It ensures that the court can still proceed with the suit even though the defendant is not physically located within its jurisdiction.
   • The section provides that summons can be served on the defendant even when they are located in another state of India.

2. Mode of Service:

   • The service of summons on an out-of-state defendant must be conducted according to the same procedures set out in the CPC, including personal service, registered post, or substitute service. However, the court can direct the summons to be sent to the appropriate court in the defendant's state of residence.
   • If the defendant cannot be personally served, the court may use registered post or substituted service, such as by posting the summons at the defendant's address or through public notices.

3. Role of the Court Where the Defendant Resides:

   • The court where the suit is filed can direct the process server or the concerned authorities to serve the summons to the defendant in the state where they reside. In practice, this means the court can send the summons to the District Court of the defendant's state for the proper delivery of the summons.
   • This allows the defendant to be notified about the proceedings, even if they are in another state, and prevents unnecessary delays in the judicial process.

4. Service through Registered Post:

   • If the defendant resides in a different state, the court may allow service through registered post, which can be done under the CPC's provisions. Registered post ensures that the defendant receives the summons, and the court receives a proof of delivery (acknowledgment receipt), confirming that the summons was served properly.

5. Substitute Service in Another State:

   • If personal service is not possible, the court may approve substituted service, even when the defendant resides in another state. Substituted service can include:
     • Sending the summons to an adult family member at the defendant's residence.
     • Publication of the summons in a newspaper with wide circulation in the area where the defendant resides.
   • The court can also authorize affixation of the summons at the defendant's residence or workplace, as a form of public notification.

6. Jurisdictional Issues:

   • Despite the defendant residing in another state, Section 28 ensures that the court where the suit is filed retains jurisdiction over the case, provided that the suit is properly filed in a court with the correct jurisdictional parameters.
   • The provision does not change the jurisdiction of the court, but it allows the court to take the necessary steps to serve summons on the defendant who is not within its territorial reach.

7. Time for Response:

   • The defendant, once served with the summons, typically has a specified period (usually 30 days) to file a written statement in response to the suit. The court may provide additional time if necessary, especially if there are logistical issues involved in serving a summons across state boundaries.

8. Court’s Authority to Ensure Proper Service:

   • If the defendant is residing in another state and the service of summons faces any issues or delays, the court may take proactive steps to expedite the service and ensure that justice is not delayed due to jurisdictional hurdles.
   • The court may also set specific directions for the service of summons through registered post or publication if service by regular methods is not feasible.

9. Service of Summons in Foreign Jurisdictions:

   • While Section 28 primarily addresses service within India, the procedures outlined can be extended for international service of summons if the defendant resides outside India. This follows the principles outlined in the Civil Procedure Code in conjunction with international treaties (like the Hague Service Convention).
   • In cases involving foreign countries, the summons may be served through the Indian embassy or consulate in the respective country, or by using international post services.

Punishment

1. Non-compliance with Service of Summons:

   • If the defendant fails to respond to the summons within the prescribed time frame, the court may proceed with the ex parte (in the defendant’s absence) proceedings, meaning the case will proceed based on the plaintiff's allegations alone.
   • The court will generally proceed in favor of the plaintiff if the defendant remains absent without valid reasons.

2. Failure to Serve Summons Effectively:

   • If the summons is not served properly, or if the court fails to make reasonable efforts for service in another state, the court may dismiss the suit or send the case back for proper service.
   • Improper or failed service may result in delays in the case, and the plaintiff may have to bear the costs involved in re-serving the summons.

3. Evading Service of Summons:

   • If the defendant deliberately evades service (for example, refusing to accept the summons or changing their address), the court may treat it as an obstruction to the legal process. The court could then issue a warrant for arrest or initiate contempt of court proceedings.
   • Additionally, the defendant may be penalized with costs or other penalties for obstructing the due course of law.

4. Failure to Appear After Service:

   • If the defendant fails to appear in court after being properly served, the court can pass an ex parte judgment in favor of the plaintiff. The defendant may lose the opportunity to defend the case, and the judgment will be based solely on the plaintiff’s evidence and claims.
   • The defendant may be liable to pay the costs incurred by the plaintiff for the proceedings.