Bailabel Type : bailable

Description

Order 5 of the Civil Procedure Code (CPC) deals with the issue and service of summons in civil suits. Summons is a formal document issued by the court to notify a defendant about the suit filed against them and to direct them to appear in court on a specified date. This order ensures that the defendant is made aware of the legal action and is given an opportunity to respond to the suit.

Key Provisions of Order 5 - Issue and Service of Summons

Order 5 outlines the procedures that govern the issuance and delivery (service) of summons to the defendant and other parties involved in a civil suit.

Rule 1: Issue of Summons

• When Summons is Issued:
  After the plaint is filed and the court has admitted the suit, the court will issue a summons to the defendant (or defendants). A summons is essentially a notification to the defendant, informing them that a suit has been filed against them and requiring them to appear in court on a specified date.

• Content of the Summons:
  The summons must contain certain essential details, including:

  • The names of the parties involved in the suit.
  • The nature of the suit (e.g., a property dispute, contract issue).
  • The date and time of the first hearing.
  • Instructions to the defendant on how to respond to the suit.

  A summons is usually served by the court or its officer, and it must be done in a manner that ensures the defendant is properly notified.

Rule 2: Service of Summons

• How Summons is Served:
  Summons can be served to the defendant in several ways, such as:
  • Personal Service: The summons is delivered to the defendant personally by a court officer or process server.
  • Substituted Service: If the defendant cannot be found, the court may allow substituted service. This can include publishing a notice in a newspaper or posting it at the defendant's residence or business.
  • Service by Post: In some cases, a summons may be sent by registered post or courier, and the defendant is considered served once the summons is delivered to the address.
  The process must be conducted in a way that reasonably ensures that the defendant has received the summons.

Rule 3: Service on Corporation or Body of Persons

• Corporations and Other Entities:
  If the defendant is a corporation, company, or other body of persons (e.g., a partnership), the summons should be served on an authorized officer of the corporation or the company (such as a director, managing director, or secretary).

Rule 4: Service on Foreign Defendants

• Foreign Service:
  If the defendant resides outside the country, the summons must be sent through the appropriate diplomatic channels or as directed by international conventions. This can be a more complicated process, as it often involves the cooperation of foreign authorities to ensure proper service.

Rule 5: Time for Appearance

• Time Period for Defendant to Appear:
  Once the defendant receives the summons, they are generally required to appear before the court on the date specified in the summons. This is usually a minimum of 30 days from the date the summons is served, but the court may specify a longer period depending on the nature of the case.

Rule 6: Substituted Service

• Conditions for Substituted Service:
  If the defendant cannot be personally served despite diligent efforts (for example, if they cannot be found or refuse to accept the summons), the court may allow substituted service. The court will then issue an order for alternate methods of service, such as:
  • Public Notice: Publishing a notice in a newspaper that is likely to come to the defendant’s attention.
  • Posting at the Defendant’s Premises: If the defendant’s residence or office is known, a copy of the summons may be affixed to the door or notice board.

Rule 7: Service by Registered Post

• Service by Registered Post:
  The summons can be served by sending it via registered post, acknowledgment due. If the defendant receives it and signs the acknowledgment, it is deemed to be sufficient service. If the defendant refuses to accept the summons, the court may consider the summons to be served once the postal acknowledgment is received.

Rule 8: Service on an Agent or Pleader

• Service on an Authorized Agent or Pleader:
  If the defendant has authorized an agent or a pleader (e.g., a lawyer) to represent them in the case, the summons may be served to that agent or pleader instead of directly to the defendant. The service on the authorized representative is considered valid.

Rule 9: Consequence of Non-Compliance with Service

• Failure to Serve:
  If the summons is not served properly or if the defendant does not appear in court on the given date (without a valid reason), the court may proceed with the case in their absence. This is typically referred to as ex parte proceedings, where the plaintiff’s case is considered without the defendant's participation.

  The court can also order fresh service or substituted service if the original service attempt was unsuccessful.

Rule 10: Proof of Service

• Affidavit of Service:
  The person who serves the summons must file an affidavit or return of service with the court to prove that the summons was delivered to the defendant as per the required procedure. The affidavit should detail the time, manner, and place of service.

Additional Considerations Regarding Summons:

• Summons to Multiple Defendants:
  If there are multiple defendants in a suit, each defendant must be served with a separate summons. The court will issue multiple summonses, and each defendant will be required to respond individually.

• Non-appearance of Defendant:
  If the defendant fails to appear before the court after being properly served with summons, the court may pass an ex parte judgment in favor of the plaintiff.

• Urgency in Service:
  In some cases, the court may issue a fast-track summons if the matter is urgent (e.g., in injunctions or temporary relief applications). This speeds up the process of service and hearing.

Punishment

While there is no direct "punishment" for the defendant’s non-compliance with summons, consequences include:

• Ex Parte Proceedings:
  If the defendant fails to appear without a valid reason, the court may proceed with the case in the defendant's absence.

• Costs and Legal Sanctions:
  The defendant may be required to bear the cost of repeated service or other sanctions if they deliberately evade the service of summons.