‘summon’
The word ‘summon’ has not been defined anywhere in the code. The definition of summons as given by
the Oxford dictionary states that, “a document which is issued from the court of justice and calls upon a
person to whom it is directed, to be present before a judge or court for a specific reason is called a
summon.” Order 5 and sections 27 to 29 of the Civil Procedure Code deal with summons under civil
litigation
Objective of summons
The following are the objectives of summons:
It is important to inform a person about any legal action that has been taken against them.
It gives an opportunity to the defendant to present his case and side of the story.
The basis of summons lies in the maxim “Audi Alteram Partem”, which means to hear both
sides.
It further helps in following the principles of natural justice and ensures fair proceedings and
trial.
Essentials of summons
The essentials of a summon are given under Order 5, Rules 1 and 2 of the code. These are:
Every summon must be signed by the judge or any other officer whom he appoints to do
so on his behalf.
It must be sealed properly.
The court will not issue any summons to the defendant if he has appeared before the
court at the time of the institution of the plaint.
Methods of Service
1. Personal or Direct Service
The summons must be served on the defendant in person or by an authorised
representative wherever possible. If the defendant is absent from his residence at the time
of service of summons, the summons may be served on any adult member or female
member of the defendant’s family. A servant cannot be said to be a family member.Where
there are two or more defendants, the summons should be served on each defendant.The
service of the summons should be made by delivering a copy of the summons. After that,
the serving officer must make an endorsement on the original summons regarding the
delivery of the summons.
2. Service by Court
When a defendant is residing within the court’s jurisdiction, the summons shall be served
through the court officer or any approved courier service. Where the defendant is residing
outside the court’s jurisdiction, the summons will be served through an officer of the court
within whose jurisdiction such defendant resides.
3. Service by Plaintiff
In addition to the service of summons by the court, the court may allow the plaintiff to serve
the summons.
4. Substituted Service
Substituted service can be done in the following circumstances:
If the defendant or his agent refuses to sign the acknowledgement, or if the serving officer is
unable to locate the defendant after due diligence and there appears to be no chance of
finding him, the service of summons can be done by fixing a copy of the summons on the
outer door or some conspicuous (noticeable) part of the house in which the defendant
resides or carries on business or personally works for gain.
Where the court is satisfied that the defendant is avoiding service of summons or the
summons cannot be served on the defendant in an ordinary way, the service may be
achieved either by affixing a copy of the summons in the conspicuous place in the
courthouse and also where the defendant last resided, carried on a business, or where he
personally worked for gain or in such manner as the court thinks fit.
In Basant Singh vs Roman Catholic Mission (2002), the court stated that one must remember
that this is not a regular mode of service. Hence it should not normally be allowed and
should only be used as the last resort.
5. Service by Post
When the court receives an acknowledgement purporting to be signed by the defendant or
his agent, or when the defendant or his agent refuses to accept delivery of the summons
when it is tendered to him, the court issuing the summons shall declare that the summons
had been properly served.
