Advocate's Diary is a project aimed at addressing the dearth of literature on court practice and litigation advocacy. To this end, we aim to create a repository of columns on the essentials of court practice – ranging from civil suits to criminal trials, from ADR procedures to enforcement of decrees and judgments, and more.
The guest columns in the series aim to develop a conversation channel with seasoned practitioners, senior advocates, arbitrators and judges.
The civil justice system is premised on adversarial proceedings, where no party is ordinarily denied the opportunity of participating in the process. Each party is provided an opportunity to present its case, to refute the claims made by the opposite party with pleadings, evidence and legal arguments, in order to ensure a just outcome.
At the time of institution of any suit, which under the Civil Procedure Code 1908 (CPC) is through a plaint under Section 26 read with Order 7 Rule 1, the Court will issue summons to the defendant to: first, provide the defendant with sufficient notice that a suit has been filed against them, and second, to provide the defendant with an opportunity to appear in court and defend their position in respect of the claims made in the plaint.
For the first column of our series on essentials of a civil suit, we focus on summons – including the service of summons by courts or the plaintiff, the peculiarities in the service of summons as envisaged under the CPC, what transpires in situations where traditional modes of service are ineffective, summons through electronic modes and more.
Summons under the CPC are governed under Sections 27 and 28 and Order V of the Code. In tune with the purpose of the service of summons – which is to provide information to the defendant of the institution of the suit, and for appearance before the court – a typical summons will contain the following:
Purpose for service of summons;
Date on which the defendant is to appear before the court (containing the next date of hearing in the suit);
A copy of the plaint filed by the plaintiff (as mandated by Order V Rule 2 of the CPC);
The signature of the judge or his appointed officer, and the seal of the court;
Any other appropriate directions which are deemed necessary by the court.
Section 27 of the CPC provides for an outer limit of thirty days within which summons must be dispatched to the defendant. Order V Rule 1 gives the defendant thirty days from receiving the summons to appear before court and file a written statement under Order VIII Rule 1.
The second proviso to Rule 1 – which applies specifically to commercial suits under the Commercial Courts Act, 2015 - establishes a mandatory outer limit of 120 days from the date of service of summons upon the defendant to file their written statement, failing which no written statement shall be taken on record by the court. The mandatory timeline under the Commercial Courts Act was introduced in order to ensure that the underlying goal of ensuring efficient and time-bound adjudication of commercial disputes.
Upon receiving the summons, sub-rule (2) of Order V Rule 1 states that the defendant can appear either in person or through a pleader in order to answer the claims made against them, unless the defendant’s presence in person has been mandated by the court specifically under Order V Rule 3(1) of the Code. However, the requirement of personal presence of either party is qualified by Order V Rule 4, which states that such presence will not be ordered by the court unless the said party resides within the court’s ordinary original jurisdiction, or less than two hundred miles from the court.
The appearance of either party is not always sought by the court at the preliminary stage. Order V Rule 5, for instance, empowers the court to ascertain whether the summons shall be for the settlement of issues or final disposal, and accordingly determine the directions to be provided in the summons. The proviso to Rule 5 mandates the courts for small causes to issue summons only for final disposal of the suit. Rules 7 and 8 of Order V further contain situations where the defendant is directed, in the summons served, to produce documents which he seeks to rely upon to support its case, or (in cases of final disposal) to produce its witness on the day stipulated for its appearance before the court.
In evaluating whether summons has been effectively served upon the defendant, and in situations where the court will deem summons to have been effectively served for the suit to proceed, Order V Rule 9 of the CPC provides exhaustive stipulations for such service to be carried out by the court. While Rule 9 provides for service through a court officer (who is referred to as the bailiff), it also provides for service through postal or courier services – including through registered post acknowledgement due, speed post or courier as approved by the High Court/district court or through fax/email etc. The proviso to Rule 9 states that such service of summons is to be made by the court at the expense of the plaintiff. This practice usually is facilitated by the court’s office, where the appropriate fee can be paid by the plaintiff or their pleader.
Where such summons has been served by the court under Rule 5, but are returned on account of the defendant refusing to accept the same, the court is empowered to declare that summons has been duly served upon the defendant. The reason behind such a provision is to ensure that the plaintiff’s case – which might be based upon legitimate and bona fide claims – is not derailed because of the defendant’s explicit refusal to appear before court and defend their position.
Rule 9A of Order V allows the plaintiff to serve the summons personally upon the defendant, after filing an application to such effect which is to be allowed by the court. The prerogative is then placed on the plaintiff to ensure that the defendant acknowledges the service of summons, and such acknowledgement is captured in the return of the summons to the court. Rule 9A is one of the safeguards available under the CPC against defendants who refuse to acknowledge receipt of summons – which is effectively abuses the process of law.
The Supreme Court in its seminal judgement of Salem Advocate Bar Association v. Union of India (2005) cautioned against such abuse of process of law, and advised High Courts to issue appropriate rules or practice directions – such as filing of affidavits evidencing the service of summons by the plaintiff – to prevent mala fide attempts by defendants to avoid service.
Order XXVII of the SC Rules deal with the procedure of service of summons. When a suit is duly instituted, a summons is required to be issued to the defendant to appear and answer the claim. The defendant is given 28 days to enter his appearance (through an Advocate-on-Record) from the date of summons. Every summons is signed by the Registrar and bears the seal of the Court.
Order V Rule 17 of the CPC provides for substituted service of summons where the defendant is avoiding service of summons, or could not be located by the court officer at the address furnished by the plaintiff, or the summons could not be served in the ordinary course for any other reason. In such situations, the serving officer can carry out service by affixing a copy of the summons at the door of the defendant’s house, or at any other “conspicuous” part of the house where the defendant lives or ordinarily carries out business.
In order to ensure that such procedure is only exercised in circumstances where the defendant cannot be located after appropriate due diligence, or is avoiding the service of summons, Rules 17 and 18 of Order V require the serving pfficer to furnish a report containing details of the time and manner in which service was carried out, facts on affixing a copy of the summons at the defendant’s address, circumstances which necessitated such substituted service etc. Further, under Rule 19, the court is also empowered to examine the serving officer, to ascertain whether such summons had been served in the manner which could be deemed effective, and to make related inquiries as it sees fit. These safeguards are essential, since such substituted service should be carried out only in situations where ordinary modes of service have failed.
The court may also provide for substituted service of summons under Rules 20 and 20A of Order V, if it is satisfied that the defendant is avoiding service, or summons cannot be served in the ordinary course. Orders 20 and 20A provide for such substituted service either by (i) affixing a copy of summons at a “conspicuous” place in the court, and at the Defendant’s last known residence/place of business, or (ii) through publication in a daily newspaper which is circulated in the locality where the defendant was last known to reside/operate business out of.
Post the COVID-19 pandemic, and the advent of virtual court proceedings, a number of court procedures have been identified by courts as being redundant in modern times. The Bombay High Court in SBI Cards and Payment Services v. Rohidas Jadhav and the Delhi High Court in Tata Sons Ltd v. John Doe set the ball rolling when they recognised service of summons through instant messaging platforms like WhatsApp.
Most recently, the Punjab & Haryana High Court in Amar Singh v. Sanjeev Kumar issued directions to revenue courts in the State for service of summons, notices and pleadings through email, and even through instant messaging services like WhatsApp, Signal etc. The Court held that parties and their advocates should provide email IDs, along with their contact details on which they are registered with the said instant messaging services, for the service of summons, pleadings etc. The Court also decried the redundant practices of services, such as munadi (service through beating of a drum).
The adoption of electronic means of servicing summons is a welcome step in bringing this crucial court procedure to be in tune with changing times. With more courts supporting the service of summons through instant messaging platforms such as WhatsApp, Telegram, Signal etc, the future of service (and substituted service) certainly looks to align with the digital age of resolving disputes.
Usually when the issue of service of summons is to be decided in a case, the causelist reflects particularly that the matter is listed for service of summon/filing of status report of service/after notice matters. The hearing generally requires the petitioner and the court officer to be present on the date of hearing. Upon being satisfied that the requirements of Order V Rule 19 have been complied with, the court may either declare that the summon is served or direct further enquiry in the matter. This stage of the hearing is usually a procedural hearing.
In the Supreme Court, the status of service of summon is reflected in the office report which is uploaded on the website of the Supreme Court. The appearance, if any, entered on behalf of the defendant can also easily be located on the website.
Tanvi Dubey is an independent practitioner at the Supreme Court of India, with a diverse practice ranging from civil, commercial and constitutional disputes to service matters before the Supreme Court and other fora in Delhi.
Sumit Chatterjee is a civil and commercial dispute resolution lawyer at Arista Chambers, practicing before the Karnataka High Court, trial courts and a wide array of tribunals in Bangalore.
The authors would like to thank Devansh Verma (Vth Year, Institute of Law, Nirma University) and Yashika Singhal (IInd Year, Symbiosis Law School, Pune) (law trainees) for their assistance in research.