CHAPTER 10 Plaint (Order VII) SYNOPSIS PAINT What is a piaint. Pant is the pleading of plaintif and hence should conform io principles of pleading. i. VARIOUS PARTS OF A PLAINT Heading. Cause Tit Body of plaint. Prayer clause. Signature and verification. CONTENTS OF A PLAINT Name of court in which the suit is brought. Name, desotoion ond place of resience of plant ant detenc Representative character. on Minor or person of unsound mind. Cause of action, Description of immovable property. ( Interest of defendant. Misrepresentation, fraud etc. b legality of the contract. F Effect of contents of documents. 5 ADMISSION OF PLAINT «& RETURN OF PLAINT ON THE GROUND OF LACK OF JURISDICTION REJECTION OF PLAINT P 1 Goes not bring out any cause of action. - It the claim of plaintiff s undervalued. ¥ the plaint is written on a poper insufficiently stamped. Wf the suit i bored by any jaw. (218) || Plant 20 y tne plaint Is not fied in dupicate ir tnere 15 non-compliance of any statutory provision Other grounds for rejection of plaint Etfect of rejection of the plait MENTS REUED ON IN PLAINT Provisions of Order Vil are procedural and non-compfance thereof would not Invaldate the plant CHAPTER SUMMARY poe! Legal remedy is the right of every person. A person a approach the court of law and institute a suit for redressal of his grievance. For institution of suit, the aggrieved person shall present a “plaint” in the appropriate court of law. PLAINT [Order VI] Plaint is a document by presentation of which a suit is instituted. However, the plaint must be presented in the court having jurisdiction to entertain and try the subject-matter of suit. What is a plaint = Plaint may be defined as an application made before the court of law about a legal wrong, caused to the plaintif by the defendant. It is a document, by presentation of which the suit is instituted. It is a statement of claim of the plaintiff. It contains the entire narration of vil wrong caused to the plaintiff on which assistance of the court is sought. It is the pleading of the plaintiff Plaint is the pleading of plaintiff and hence should conform fo the principles of pleading = ich the entire case of the plaintiff Plaint is the pleading of plaintiff in whi is rected Therefore, the principles governing pleadings apply to plant also. vcccordingly, the plaint must contain and contain only @ statement of the terial facts on which the plaintiff relies for his claim. Tt must be in concise Fare it must disclose only facts and not the law. It should state all material fea and material facts only. Material facts are those on which the caust of tation of the plaintiff is founded and which are required to be proved in Order to establish the existence of cause of action. The plaint must describe the facts which are to be proved and not the evidence by which they are to be proved. Conciseness is the essence of plaint, but it does not ment that material facts should be omitted. The plaint should contain a statement of material facts in concise form. However, conciseness should not be achieved At the cost of precision. The plaint should be concise as also precise. The plant must be divided into properly numbered paragraphs, each containing, re allegation. If there is a case of misrepresentation, fraud, breach of trust, ortfal cefault, or undue influence, it must be specifically stated in the plaint VARIOUS PARTS OF A PLAINT : A plaint may be divided into following parts — (1) Heading: (2) Cause Title;Tha Coda of Civ Procodurs, 1908 m (3) Body of plaint; (4) Prayer clause; (8) Signature and verification Heading : Heading is given on the top of the plaint. 1 consists of sl (i) Name of the court in which the suit is brought; and (i) The registration number of a suit with year The registration number is allotted by the court on} after pre. of pint, Thus, the registration number is not available 4 the Preeentay fling of the suit, Hence, blankspace should be left 4° the Peaintie number, However, the year in which the plaint is being presente tation mi dearly mentioned: Us he In view of above, the heading of a plaint being filed before th Judge, Junior Division, Nagpur shall be as follows he Civ, IN THE COURT OF CIVIL JUDGE, JUNIOR DIVISION, NAGPU; Civil Suit No. of 2007 R Alter allotment of registration number, it is written by blank-space left for the purpose. Suppose the registration numi 265, then the civil suit number becomes 2345 of 2007 Which is ge abbreviated as 2345/07. This number becomes the identification meet ly pe ull whichis used in WS; in every application filed or eset”, = by court during pendency of the suit: and in the Judgment and decree passed by the court. In future also ie, after disposal of the sult, wa same rant’ 2345/07 shall be used to refer to this suit, Cause Title : hand’ in ber allotteg is the description of ties in a suit vz, any one, there can be no suit However, there may be several plaintiffs against one defendant; or one Plaintiff against several defendants; or several Plaintiffs against several defendants. The cause title of the plaint provides following particulars of the rival parties — (i Full name, age, occupation and complete postal address of the Plaintiff. If, there are two or more plaintiffs, they must be arranged serially with number and full name, age, occupation and complete Postal address of each plaintiff should be given. The place of residence of plaintiff or plaintiffs should be clearly, correctly and Specifically mentioned. Vague statements should not be made. Gi) Full name, age, occupation, and compete postal address of the defendant. If, there are two or more defendants, they must Ls arranged serially with number and full name, age, occupation ae complete postal address of each defendant should be given. i Place of residence of defendant or defendants should be clearly, it correctly and specifically mentioned. Vague statements should no! be made Thus, the cause-title of a Plaint may be as follows : PLAINTIFFS : (1) ABC s/o Sri DEFPast a aged about 50 yrs,, Occu “ Resident of Ramdaspeth, ae (2) GHI s/o Sri KL aged about 70 yrs., Occupation—Ri Resident of Khana, Nagpur roa VERSUS Q) MNO s/o Sri POR aged about 55 yrs, Occupation Busines Resident of Buldi, Nagpur. (2) STU s/o Sri VWX aged about 30 yrs., Occupation —Business Resident of Buldi, Nagpur. (ii) If 2 Corporation sues oF is sued, its name and complete postal address of place of its business must be given. At the same time, rity through whom the suit is filed or through whom the ‘be defended must be mentioned ¢., XYZ Corporation Limited, Seminary Hills, Nagpur Through its Managing Director fv) A suit by or against a minor can be instituted only through a next friend or guardian. Similarly, a suit by oF against a person of unsound mind can be instituted only through a next friend or ardian. In such a case, it should be so identified in the cause title of the plaint eg. UVW s/o Sri ZAB aged about 8 yrs. a minor through his next friend iz, his mother Mrs. CDE, Resident of Sadar, Nagpur The object of providing the causetitle is 10 disclose complete identity of the litigating parties so that there may be no mistake. pEFENDANTS + the Autho! suit is to \ Body of plaint : + The body of the plaint contains the entire gr his claim. It commences with a caption indicating and/or the law under which it is filed es. “SUIT FOR SPECIFIC PERFORMANCE OF CONTRACT” OR SUCCESSION CERTIFICATE UNDER “PETITION FOR GRANT OF iN: SECTION 372 OF THE INDIAN SUCCESSION ACT, 1925 OR OF COMPENSATION OF Rs. §,00,000/- ‘OF MOTOR VEHICLES ACT™ ven. It usually starts fevance of the plaintiff and the reason of the plaint “APPLICATION FOR GRANT UNDER SECTION 166 __ Below the caption, the story of the plaintiff is si with the opening sentence : “The plaintiff named above most humbly and respectfully submits as under” :pled igo Sr by Ge =et Sey Samset Ee. fen? eee ie ee ee Se ee fe aot sees at Gets. Flee Ge ileal meaniir aket = te a COUNSEL FOR PLAINTEF H Se Sot <6 She plant. after sigcatase, # shurdid be verted by OF= z my pe eee et eee be Se et Se ee ee oe eet 2 Mego on Ses De dy oF See DEFRENT CONTENTS OF A PLAINT [O-¢= VE Ries The pie ee sees Se oD Name of come me wh Se Se ee ee ee Swe Se ce Se ee ee ee eee peace Thos hes sheets See Soest ove SS Se © Nee Gece et ple eee oe ete SS pees ee ce es See Se Pie et ee Se be ee Se Ss See owe Se Ge pie es Te eS Ss Se eee 23 Hoes oso be Stowe Se Se Re Ses Sees oe Se PES 6 Sa be Ges Se eee es = 6 Miser of pesos of esd St Se Se or Se Gee woe See 2 Dees SE St Sg Sees SE Se Se Se gre Se pe Se Case of ace 45 Sse Sess wt os Se ose oe oe Se Se we BS Se ee Ee ee ee Ge ee Geced Coe OF se Sees Soe Ss oe se eS god wih ae cee © be owes by Se pee The oe oe ae mest preset E Gere s ro cose of aoe Se os et SE oe Of ace & Se backhoe of Se et es eee Se be Seer The dae of cose of acc & oe er Se i ssa ABS SOa a Tre Cove of Crd Procedure, 1908 sant exemption from law of Limitation shall be pleaded sh sd condonation of delay shall be prayed. Win, fG Scthart and Aswcutes.’ the Supreme Court held each breach was distinct and complete in itself and gave rise to a a that action. Hence, in view of Article 55 of Limitation Act, 1963, gy Mate pepet te each breach was required to be filed within three year “th happening of that breach. Years of © Jurkiton of eourt—The facts which show thatthe cour is eth junsdiction to entertain and ty the subject-matter of the ested weaded. It is not es suit my rent to say that “this Hon'ble Court jas a unis, © The ground on which the court mf ton to to be carly stated “the property in wg? feate within the ternitorial furs liction of thie Foe? juristichon fo entertain and try the me lal lots of jurisdiction of ths Hon bg Ret has jareicton to entertam and try the present oot € help oF assistance sought by the S SSun for medresal of fis grievance, Relief sought megy sessly mentioned. All the reliefs claimed mst P= eerperated in the plaint because a relief not prayed for shall not be by he court a Zs Stzte g the Apex Court observed mcrease the daim only by seckin ig amendment of the plaint art-fee on the amended claim. However, the * would depend on limitation and may not be Pesmited alter exriry of the period of limitation. {S Set-off ox relinguishment—The amount set-off or relinquished by Se phase if any, must be clearly shown in the plaint. Nalue of the suit for the purposes of jurisdiction f the suit for the purposes of court fees must be manifestly Shown. Sometimes the va of the subject-matter of the suit is the same for recovery of money. But sometimes - © 2 suit fOr possession of immovable must distinctly state the valuation for the Sion end valuation for the purpose of court fee. (iD Amount cliimed—lf the suit is a money-suit and the plaintiff seeks Y, the plant shall state the precise amount claimed case of claim for nese profs, or for movables in the possession of which the value he cannot estimate, it would némate amount or value. (1) Desciption of immovable property.—if the subject-matter of suit & ixcarrable propecty Gesciption of ‘such property along with its ey mumbers shall be specified. ‘eroog, it was held that the description of the st be sufficient to identify it, The property can be identifiable by b ma public record of settlement or survey. It can be sefSomt to state appro: z XC aL 2 AR 30s X sm - Gg 2 sco as. 3 GOED DSCC 83 AR 2S SC awr Paint 228 bed even by plaint map showing the location of the disputed scr ovale property. In the present case, the suit property has been described imvthe plaintiff in the plaint not only by the boundaries but also by the municipal number, and by giving its description in the plaint map. Such description 1s sufficient to identify suit property, By no stretch of imagination, can it be aid that the suit property was not identifiable. In P. Chandrasekharan v. S. Kanokarajan,' the Supreme Court observed that the plaintiff, before his suit is decreed, must establish the cause of action in respect of the property in question wherefor the relief for recovery of “Ression has been claimed. In case the suit is decreed, the executing court Psst be able to deliver possession thereof and thus there cannot be any doubt Mpatsoever that the property in suit must be adequately identifiable. When wich a relief is claimed the plaintiff must show what he had purchased and how the court, in the event 2 dispute arises, would determine the identity of the property. A bare comparison of the deed of sale on the basis of which the appellants claim their right, title and interest with the rough plan purported to have been drawn up 07 the basis of the Service Settlement Plan Peeefor, must lead to proper identification of the suit property. It may be that between the period 1935 and the date of institution of the suit surrounding properties have changed many hands or the original owners might have died; but when the plaintiffs themselves relied upon a sketch to Sateblish identity of the properties in suit vis-a-vis the existence of lanes and the constructed platform etc,, it was for them to show that the description of the property tallies with the one stated in the deed of sale. ‘Any misdescription of the suit-property may be allowed by the court to be come by way of amendment at a later stage, but before commencement of trial. In Sajjan Kumar v. Ram Kishan,? the description of suit property in the plaint was incorrect. The amendment of plaint was sought in final stages of the suit. The Apex Court observed that the d pex Court observed that proposed amendment was necessary to bring real question in controversy between the parties to the fore. Berea to permit amendment was likely to create needless complications at ne stage of execution in the event of success of the plaintiff in the suit. erefore the amendment must be allowed. Wea eater y pe Gs Pillai,’ there was misdescription of suit Property in the plain. Therefor, the application for amendment thereof was fe. It was held that such application was to be allowed. tel ae nerestot cetendan tate plaint shall show that the defendant is eee ec matter and that he is liable to be called upon to (14) Misrepresentation, fraud etc—If the plainti i : i y plaintiff relies on am Fae Pree aN, fraud, breach of trust, wilful default or undue ialuenae’ particulars thereof must be provided in the plaint. Ee a Megality of the contract—If the plaintiff challenges any contract ground of illegality, an allegation to that effect be made in the plaint. ___@6) Effect of contents of documents.—Where the contents of the 1 (2007) 5 SCC 669 : 2 (2005) 13 SCC 89. Re eaaiaae 3. (2006) 4 SCC 484 : AIR 2006 SC 1567.qe oom of Od PE bc) - te ete thereal without setting out the dormer, docusemts =F 5 2 dest a the rales of pleadings shall pply. 4 3 aoe. be ia pais ac and not the law; @) a: (9) mast tae Be BS OO state only Tie plas & reqered t aooex a list of the produced along admitted, t coir te coy of Ge plait for deledant 1) there are two or more Sloviers. ene copy for each shall be supplied. The copies shall be supplied Soin Ge toe pescbed by Ge cout The plaintif shall also pay ay er be fr the serve of semsmors on the defendants within seven days RETURN OF PLAINT ON THE GROUND OF LACK OF JURISDICTION [O=der Vil, Rule 16] In oder to beng 2 su, the resents 2 plaint before a court. If ech cout discovers that i is incompetent to entertain and try the suit due ki ream the plaint to be presented before the cm. The court may return the plaint at any ¢. the Judge shall endorse thereon to te plaintif. Thereafter the plaintif may mzke an application to the court that he proposes to present the plaint in such and such court and a date may be fixed for the appearance of the parties in that court. Accordingly, the court may fix a date for eppezrance of the parties in the court in which the plaint is proposed to be presented and give a notice thereof to the plaintiff and the defendant The said notice shell be deemed to be a summons for the appearance of the defendant in the court in which the plaint is presented on the date so fixed. No further notice shall be necessary. In Harstad Chimanlal Modi (11) v. DLF Universal Limited,’ the Apex Court held that presentation of plaint in the correct court after its return is not the case of “transfer’. It is 2 case of lack of jurisdiction of the first court. It is not a continuation of proceeding mitiated in the wrong court. Hence the Correct court cannot take up the proceedings from the stage at which they flood in the wrong court since the proceedings were void ab initio. The correct court would have to take up the ese from the stage of presentation of plaint it th Praom Pandurang Patil v. Executive Engineer, Pradhan Mantri Gram Sadak Yoana, Sangli,’ the Bombay High Court distinguished between the court and alternative dispute resolution forum. {t held that the proceedings in court are different than proceedings initiated and/or referred before dispute resolution mechanism and/or the forum like arbitration, mediation, conciliation and Lok 1, BIR 6K CAs (DB) NSEC 2 BMG) Ma Ly 573.Pert a Adalat “Forum” is not “Court as contemplated under Civil Procedure Code. The court further held that when alleged forum is not competent to grant deciarative/interim reliefs, parties are not ed to imitate and/or to file a qvil swt in competent Court for such relieis. Court, in such situation is required to pass order based upon matenal available and/or merits of mater Return of plaint for presentation before proper forum by invoking Order VIL Rule 10, Civil Procedure Code, is not proper. REJECTION OF PLAINT [Order VI, Rules 11 to 13]: The defendant alone is entitled to make an application for rejection of pEee Application for rejection of plaint The defendant may make an application for rejection of plaint Such application must be made before filing of his written statement. The application must clearly bring out the grounds on wi rejection of plai is sought If such application is made, i 2 first If the court allows the pplication, application is dismissed on any gro that case, the defendant shall be en: In RK Row v. US. Rayudu,’ it was held that an application for rejection of plaint can be filed by defendant before filing of his wnitten statement. The court must dispose 2pplication before proceeding with tial In case of dismissal of application, defendant is entitled to fle written statement Application is liable to be rejected, if considering plaint as a whole, entire plaint falls under situations covered by Clauses (a) to ( of Rule 11. Application should not be considered on basis of defendant's allegation in wnitten statement or allegations made in application for rejection of plaint However, application for rejection under Rule 11 cannot be made as a ruse for retrieving lost opporturuty to file written statement. In Souruk Sd v. Subhas Chandra Su> the appellant's mother (Plaintiff 1) and the appellanc (Plaintiff 2) resided in the two-room Flat, which was matrimonial home of Plaintiff 1. The defendant father/husband filed a suit for dissolution of marriage The Plaintiffs filed a suit before the City Civil Court against the husband/father (respondent-defendant) for undisturbed Possession, use and enjoyment of the said flat. In divorce case, a compromise decree came to be passed directing the husband to Pay to the wife permanent alimony provided the wife hands over the vecant possession of the rooms to the husband. In compliance of the order, the wife delivered vacant possession to her husband and filed an application before the City Civil Court. for deletion of her name as Plaintiff 1 from the said suit. Thereupon, the defendant (husband/father) filed an application for rejection of plaint under Order 7 Rule 11 (a)CPC on the ground that after deletion of name of plaintiff 1, the remaining plaintiff had no cause of action to institute the suit against the defendant and that the plaint does not disclose any cause of action. The City Civil Court rejected the said application. The defendant filed revision against the said order before the High Court. The High Court after perusing the facts and after considering the averments made in the plaint held that L 916) 14 SCC 275. 2 (2015) 5 SCC 732 : AIR 2014 SC 1931. |sg Coin of Ord Process, (0A the plaint, it is dear from miaintilt 1 fren ol Mires of action, and accor pes NO CHU the MY hel ction to proceed with the sro Gite oe on the High Court and thereby Plaintiff 2 being the 5° action in the matter In view of the above, the Hig Tie ander of te trial court, all ved the application and ee aint the plaintiff filed an appeal before Supreme Court on apy acul tial wt ead preperty Io a trust preiperly and that the appellant ja, te there as une of the trustees, and that he, as a legal heir and Js entitled to 1 the sull property in terme oy jel that the plaint discloses no Caure of action vibe jon of flat to defendant, for retainin dent cruse of mi of the eit premis er of pe Conus) revert rene a right to 6 eon of the respamderit fie trot deed Ih was f vives aller handing over of po a tn and the a i rphitly attracts provisions of Order % Rule 11 (a) dn the plaint appellatit plaintiff did not aver that his rights flow from trust deed as he tried to paint out only in the appeal and in the Separate it washeld that the survival /subsistence of Cause of action is tg be determined solely in terms af whal is averted In plaint and not what plaints pleads in appeal or in some other suit, Hence, plaint cannot be saved from rejection un the basls that one of the plaintiffs may be entitled 10 the relies cought in the rejected plain’ on the basis of averments made in fevialon/appeal ayainst tls rejection, oF, In some other sult, as In present cage, The High Court has caneetly ascertained the position and rejected the plain, The appellant for the fit time in appeal took the ground that the said property is a trust property and that the appellant has 4 right to reside there as one of the (rus and that he, asa legal helr and son of the respondent, fs entitled to reside in the sult property in term of the trust deed. The same is rejected, since in the plaint the appellant-plainiff did not aver that his rights flow from the trust deed as he tried to point out only in the appeal, Grounds for rejection of plaint The court Is bound to decide the application for rejection of plaint, if made, before proceeding with the tral. For this purpose, the court shall only look into the pleadings of plaintiff made in the plaint. The grounds raised by the defendant in the application for rejection are immaterial. A plaint shall be rejected on following grounds — (If it does not bring ont any cause of action + As already discussed, the cause of action is the most important factor for maintainability of a suit, Cause of action denotes a bundle of facts leading fo institution of suit, Hence, cause of action must pre-exist and must be Proved by the plaintiff, If no cause of action can be deduced from the pleadings of the plaintiff, the court shall reject the plaint. In Hardesh Ores (P) Lid, v. Hede and Co,' the Supreme Court observed that whether a plaint discloses a cause of action is essentially a question of fact, but whether it does or does not must be found out from reading the Plaint itself, The test is whether the averments made in the plaint, if taken to be correct in their entirety, a decree would be passed. The averments made in the plaint as a whole have to be seen to find out whether Order Vil, Rule (NNT) 5 SCC OUPart ae 11 (4) i spa m Pe ee cull out a sentence or a passage and to re € context in isolation. Although it is the substance and not merely the form that has to be locked into, the pleading has to be construed as it stands without addition or subtraction of words or change of jis apparent grammatical sense. In Jagestwari Devi v. Shatrughan Ram,’ reection of plaint was sought mainly on ground of non-disclosure of cause of action. It was held that difference cvists between non-disclosure of cause of action and defective cause of action. While the former comes within the scope of Order VII, Rule 11. the latter is to be decided during trial of the suit. The plea that cause of acon disclosed is vague and incompetent is not a ground for rejection of lain P In Manjula Bharat Kumar Banker v. Salima Suleman Corner,’ the Bombay High Court held that exercise of power under Order VII, Rule 11 (a) is only ‘on the basis of the averments contained in plaint. The court must determine from the averments as they stand as to whether a cause of action has been made out. In Kishorbhai Premchand Shah v. Hirji Bhojraj and Sons Kutchi Oswal Jain Chhatralay Trust, it was held by Bombay High Court that for rejection of plaint, the averments in the plaint are relevant and not the defence pleas taken by the defendant in the written statement. Gi) If the claim of plaintiff is undervalued : The value of the suit is required to be ascertained for the purposes of jurisdiction and court fees. The valuation is done by the plaintiff himself and iy clearly shown in the plaint. The plaintiff is supposed to value the suit properly. He should not overvalue or undervalue the suit. If it is found that the relief claimed by the plaintiff is undervalued, the court may direct him to correct the valuation within a specified time. The court may further extend the time if it is satisfied that the plaintiff was prevented by any cause of an exceptional nature and that refusal to extend such time would cause grave injustice to the plaintiff. If, the plaintiff fails to correct the valuation within the prescribed time or within so extended time, the court shall reject the plaint. (iii) If the plaint is written on a paper insufficiently stamped : If the plaint is insufficiently stamped, the court may direct the plaintiff to supply the requisite stamp-paper within a’ stipulated time. The time may be extended by the court if it is satisfied that the plaintiff was prevented by any cause of an exceptional nature and that refusal to extend such time would cause grave injustice to the plaintiff. If, the plaintiff fails to supply the requisite stamp-paper within prescribed period or within so extended time, the court shall reject the plaint. (iv) If the suit is barred by any law : If the pleadings of plaintiff disclose that his claim is barred by limitation, the plaint may be rejected . 1. 2007 (15) SCC 52. 2. 2014(1) Mh. LJ 896, 3, 2014(2) Mh. LJ 187.The Code of Ci Procedure, 1908 mm In Bay Berry Apartments (P) Ltd. v. Shobha,’ the Supreme Court he if the cause of action arose during pendency of the suit and if the suit fe that in view the subsequent events is found not to be barred b; ion? relief granted in such suit 1s not liable to be interfered with the In Sul G. Angur 6. ML Saree," the Supreme Court held that the ee is bound to take notice of the change in law and is bound to administee law as it was when the suit came up for hearing. If the court has Jurisdi to try the suit when it comes up for disposal, then it cannot refuse to - jurisdiction by reason of the fact that it had no jurisdiction to entertain the date of institution. it 9 it The phi may also be rejected if there are no pleadings as 16 lint In Ram Prakash Gupta v. Rajio Kumar Gupta,’ the Apex Court hel alae under Order VI, Rule 1(@), the plant is able to be rejected i it ie contin necessary averments relating to imitation. For this purpose, the pay"! Aig application for rection of pant has to sats the court tha here does not dislose how the same is in time. The duty of court is to wre fie entre point averments and not to read few lines or passages in ice before deciding the said issue ion Where the court before which the plaint has been presented institution of suit lacks jurisdiction to deal with the subject mattered the plaint is liable to be rejected. ed, In Asif Ahmedally Porbunderwalla vy. Daulat Akbarali y limita ion, Porbunderwalla, the Bombay High Court held that when subject-matter of suit is beyond jurisdiction of trial Court, plaint must be rejected and not retumed under Order VII, Rule 10, However, misjoinder of parties or misjoinder of causes of action does not render the plaint barred by any law In Om Aggarwal v. Haryana Financial Corporation? question of rejection of plaint on ground that suit is barred by a law can be raised at any time by defendant. Adjudication in respect of that question would depend upon facts and circumstances of each case. For deciding that question, only averments made in plaint are relevant. The dismissal of civil suit in present case in view of the law concerned which excluded the jurisdiction of civil court in the matter concerned was proper. (0) If the plaint is not filed in duplicate : Two copies of a plaint are required to be filed. If, the plaintiff fails to | file the plaint in duplicate, the plaint may be rejected. (oi) If there is non-compliance of any statutory provision : If any of the statutory provision is not complied with, the plaint will be rejected. it was held that the (vii) Other grounds for rejection of plaint : The grounds for rejection of a plaint as mentioned in Order VII, Rule (2006) 13 SCC 737 : AIR 2007 SC 226. i 2 AIR 2006 SC 351 : (2006) 1 SCC 141. 3. 007) 10 SCC 59 ‘“ 5 201402) Mh. L210, (2015) 4 SCC 371: AIR 2015 SC 1288,Part at 11 are not restrictive or exhaustive. That is to say the list of relevant grounds i arjot end there. The plaint is lable to be rejected on varios oles Grounds. For example, a plaint signed by an unauthorized person is sufficient ound for rejecting it. Similarly, a plaint unable to disclose any nght vesting Br the plaintiff or any infringement of such right may be rejected. A premature iit is also not maintainable. In Bay Berry Apartments (P) Ltd. v. Shobha,’ the respondent-plaintiff daughters instituted a suit that since they were the beneficiaries under the Gait the sale of immovable property be set aside. The suit was held to be premature for the reason that the declaration prayed for could have been Prsnted in their favour only upon death of their father and not prior thereto Plaint cannot be rejected at a belated stage : If the plaint suffers from any of the shortcomings mentioned under Rules 41 to 13, it must be rejected at initial stage itself. The plaint cannot be rejected at a belated stage. The Apex Court has categorically disapproved the rejection of plaint at a belated stage after filing of written statement, framing of issues and cross-examination. Effect of rejection of the plaint : The Judge shall record an order for rejection of plaint with the reasons therefor. The rejection of plaint of any of the above grounds shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. An order rejecting the plaint shall be deemed to be a decree and hence it is appealable. In Shreya Vidyarthi v. Ashok Vidyarthi, it was held that rejection of plaint is not a bar for presentation of fresh suit. In the instant case, the earlier suit was rejected for non-payment of requisite court fee, but it does not act as bar for present suit filed by respondent-plaintiff and his suit was maintainable. PISS SRS RELIED ON IN PLAINT [Order VIL Rules 14 to 17] : If the plaintiff relies on a document, he shall produce it in the court at the time of presentation of the plaint and shall also deliver a copy of it. The plaintiff shall annex with the plaint the list of other documents relied by him as evidence in support of his claim. If, any such document is not in the possession of the piaintiff, he shall state in whose possession the document Where the suit is founded upon a fost negotiable instrument and the plaintiff has given an indemnity against the claims of any other person upon such instrument, the court may pass such decree as it wouid have passed if the plaintiff had produced the instrument in court and delivered a copy of the instrument to be filed with the plaint. Where the document on which the plaintiff sues is an entry in shop-book or other account in his possession, the plaintiff shall produce the book or account at the time of filing the plaint together with a copy of the entry on which he relies. The court shall forthwith mark the document for the purpose of identification and compare the copy with the original. If it is found correct 1. @00e) 13 SCC 737 AIR 2007 SC 226. 2 @O15) 16 SCE 46» AIR 2016 SC 139.ON book to the py mw The Code of Civil Procedure, 1908 the court will certify the copy to be correct and retum the and cause the copy to be filed. A document which must have been produced in court been entered i9 the lst annexed to the plaint by the plainuft not actually produced or entered, shall not be received in e4j behalf at the hearing of the suit. However, the court may nN hig to the painuff for the same. However, the rule docs net DPE Son documents produced for cross-examination of the defendants Witness. the answer {0 any case set up by the defendant or handed to a wines OF to refresh his memory. S Merely ln Amar Nath Agarwalla v. Diillon Transport Agency, the ae that the documents filed by plaintif, which were not exhibisel at thet hela Prove the subletting, cannot be looked into since they fe evidence and the defendant had no opportunity of documents. In Vera Lelisa Viegas Pereira v. Agnelo Caetano Colaco? an applicati made to produce addtional dcumens. The avemment in tie wes me Tespondents had encroached into property. Site plan sought wha os with regard to structures existing in suit property. wae consistent averments in original plaint. The Bombay High Court held that the court wet not justified in refusing leave to Tely on said report. Impugned order feline leave to produce said site plan quashed and set aside sed Petitioners grancg leave to rely upon said documents. ‘d intigg T Must but wi bev dence gn” is Were not put °° replying to th Provisions of Order VII, are not invalidate the plaint : The requirements of Order Vil, are procedural in nature. Any omission therefore, would not entail automatic rejection of the plaint Z In Uday Shankar Triyar v. Ram Kalewar Prasad Sin, held that non-compliance with any procedural requirement relating to 4 Pleading, memorandum of appeal or application or petition for sels should Rot entail automatic dismissal or rejection, unless the relevant statute or rule S0 mandates. Procedural defects and irregularities which are curable should Tot be allowed to defeat substantive rights or to cause injustice Procedure, a handmaiden to justice, should never be made a tool to deny justice or Pesbetuate injustice, by eny oppressive or punitive use. The well recognized exceptions to this principle are — (1) where the statute prescribing the procedure also prescribes specifically the consequence of non-compliance; 2) where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it; () where the non-compliance or violation is proved to be deliberate or mischievious; (4) where the rectification of defect would affect to case on merits or will affect the jurisdiction of the court; and @) in case of memorandum of appeal, there is complete absence of 1 QDI7) SCC 308 AIR 2007 SC 2400 2 20181) Mh. L170 3 (2005) 1 SCC 75. AIR 2006 SC 260, Procedural and non-compliance thereof would wh? the Apex CourtPiaint a authority and the appeal is presented without the knowledge, gonsent and authority of the appellant CHAPTER SUMMARY A plaint is an application made before the court about a legal wrong Pthe plaintiff by the defendant. It is a document by presentation of ed eich the suit is instituted. It is a statement of claim of the plaintiff. It ins the entire narration of civil wrong ‘caused to the plaintiff on which sesistance ‘of the court is sought. It is the pleading of the plaintiff and hence the rules of pleadings apply to it. Accordingly, the plaint must contain in a concise form a statement Pf the material facts on which the plaintiff relies for his claim. It must disclose only facts ‘and not the law. It should state all material facts and material facts only- The plaint must describe the facts which gre to be proved and not the Svidence by which they are to be proved The plaint should be concise as also precise. The plaint must be divided into properly numbered paragraphs, each containing one allegation. A plaint may be divided into following parts— ; i (i) Heading, which is given on the top of the plaint. It consists of the name of the court in which the suit is brought and the registration number of a suit with year. (ii) Cause Title, which follows the heading and contains the description of litigating parties. There must be at least two contesting arties in a suit iz. a plaintiff and a defendant. In the absence of any Pre, there can be no suit. However, there may be several plaintiffs against one defendant; or one plaintiff against several defendants; or several plaintiffs against several defendants The cause-title of the plaint provides full name, age, occupation and complete postal address of the plaintiff or of plaintiffs if they are many; and the similar particulars of Fie defendant or of defendants if they are many. If a Corporation sues tris sued, its name and complete postal address of place of its business must be given along with the designation of the Authority through whom the suit is filed or through whom the suit is to be defended. A suit by or against a minor, or by or against a person of unsound mind can be instituted only through a next friend or guardian, hence it should be so identified in the plaint. The object of providing the cause-title is to disclose complete identity of the litigating parties so that there may be no mistake. eee ad of plaint, which contains the entire grievance of the re nS ta ; ai laim. It commences with a caption indicating, the reason otf te aia) 7or the law under which it is filed. Below the caption, hb ah re foes of the plaintiff is given as to how and in what manner See ere ee eee ue deseipnon is in third person. The ; ical vi containin gion! tick cae ly divided into paragraphs, each Be pe) Prayer clause, which is given after entire narration of the story plaintiff and in which the relief prayed for by the plaintiff is set out. When there are several reliefs prayed, they are given in a sequence, by systematically allotting cach prayer a number. The relief claimed mayCHAPTER 11 to Defendant to Appear ang Summons Answer the Claim (Sections 27, 28 and 29 and Order V) SYNOPSIS SUMMONS TO DEFENDANTS What (s summons. Who issues summons. To whom summons Is issued. When summons may be Issued. When a suit is said to be duly instituted. For what purpose summons may be issued. Meaning of ‘to appear and answer the claim". Meaning of ‘may be served". Copy or statement to be annexed to summons, Object of summons. APPEARANCE OF DEFENDANTS Choice of defendant as to appearance in court. Court may order defendant or plaintiff to appear in person. No party to be ordered to appear in person unless resident within certain limits. CONTENTS OF SUMMONS Summons fo be either to settle issues or for final disposal Fidrg day for appearance of defendant. Summons to order defendant to produce documents relied on by him. On Issue of summons for final disposal, defendant to be directed to produce his witnesses Summons must be signed and sealed. SERVICE OF SUMMONS PERSONS ON WHOM SUMMONS SHALL BE SERVED SERVICE OF SUMMONS BY COURT If the defendant himself resides within the jurisdiction of court. If the defendant's agent resides within the jurisdiction of such court If the defendant resides outside the jursaiction of court. Wren summons are said to be duly served on defendant. SUMMONS GIVEN TO PLAINTIFF FOR SERVICE : SER\ + SERVI IMONS BY PLAINTIFF THROUGH "HAMDAST” a ACKNOWLEDGEMENT AND ENDORSEMENT (236 ) posSummons to Defendant to Appear and ne 5 Answer yest SERVICE ep defendant refuses fo accept se when Slgence oF has no agent—by ence Of & obsont tom ne t Is deliberately i wt the defendan fely voll ‘summons—by newspaper oc of summons—by affixing pect of substituted service fe SUMMONS WHERE DEFENDANT Mr on of Section 28, RESIDES IN ANOTHER STATE Opject of Section 28. genvice OF SUMMONS IN SPECIAL CASES CF ne defendant resides within jutscicton of another cour i summons is fo be served within Prestdency-towns. ‘ puty of court fo which summons is sent ir ine defendant Is confined in pron. tt defendant resides out of India and fas no agent. service in foreign feritory through Poltical Agent or Cour. Sammonses to be sent fo officer to foreign eoiniies defengant is a civil public ir ne ve iocal authority. cane fnbeemadiaabiaadbacaate Lesesieetal ir detendiant 1s @ soialer or saflor or airman. it defendant Is a Corporation. ir defendants are partners in a Fim. Duty of person fo whom summons is delivered or sent for service. SERVICE OF FOREIGN SUMMONS CHAPTER SUMMARY SER ‘After the suit is duly instituted, it is necessary to give intimation to the defendant to appear and rebut the allegations made against him. The intimation which is sent to the defendant is technically known as summons. SUMMONS TO DEFENDANTS TO APPEAR AND ANSWER THE CLAIM [Section 27] = Where a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and may be served in manner prescribed ‘on such day not beyond thirty days from date of istitution of suit. Section 27 provides that after institution of a suit, the court may issue summons to the defendant to appear and answer the claim. What is summons + Summons is a document which is issued by the court calling upon the defendant to appear and rebut the allegations made by the plaintiff against him. In other words, summons is an intimation sent to the defendant by the court as to institution of a suit against him and the date and time on which he should appear before the court to ans eontaine the details such as (i) nae of ba (ii) provision of law under which summons is issued, 5 and'place of residence of the defendant, (i) bref of the claim made by the plaintiff against the defendant, (v) clear direction to appea!Tha Code of Civ} Procodure, 1008 eader, (vi) date and time at which th ov through a pleader, (vi) . either personally ie ot tho defendant and (vil) signature of the aes man sea) of the ¢ bahay vans is issued by the court before which he summons is issued by instituted he To whom summons is issued [Section 27 and Order V, Rule stp 0 The summons is issued to the defendant. The purpose is to in forme dofendant that a suit has been instituted against him so that he is aware of the allegations that he has to meet, However, no such summons shal issued when the defendant has appeared at the Presentation of the plaing aa admutied the plant's dim. A summons can also be issued to a Withee i appear and give evidence. @ suit has been When summons may be issued [Section 27 and Order V, Rule 1] ; A summons may be issued to the defendant after the suit has been dul instituted. But where the defendant has appeared at the presentation of the plaint and admitted the plaintiff's claim, there is no need to issue summons, When @ suit is said to be duly instituted : A suit may be brought by presenting a plaint in a civil court. presentation of plaint does not amount to institution of a suit, A to be duly instituted only when it is registered by the court and a eae number is allotted. Such registration is done by the court only after scrutinizing the contents of the plaint. In course of scrutiny, the court Satisfies self as to (i) whether the plaint unequivocally discloses the cause of action, @) whether the plaint has been filed within the limitation period, and whether itis accompanied by an application for condonation of, delay; (ii) whether the court is prim facie vested with territorial and” pecunia jurisdiction to entertain the plaint and adjudicate upon the cause; (iv) whether the court before which plaint is filed prima facie enjoys authority over the subject-matter of the suit; (v) whether title of the plaint discloses complete ‘entity of the plaintiff and defendant such as name, age, occupation, and full Postal address etc; (vi) whether the body of the plaint properly declares the Feason of the plaint and the law under which it is filed; (vii) whether the relief claimed can be granted by the court; (viii) whether the plaintiff has duly signed and verified the plaint; (ix) whether proper court fee has been Paid: etc If everything is in order, the plaint shall be registered. In case there 1S any objection, the piaint shall not be registered until all the objections are removed. It is for the plaintiff to remove the objections within stipulated time. After removal of objections, the plaint shall be registered and upon such epistration, a suit is said to have been duly instituted. But mere Suit is said if not, Be what purpose summons may be issued [Section 27 and Order V, Rule A summons may be issued to the defendant in order to inform about tad Fen Of Suit of against him so that he may appear and answer the claim wearin Welles sitement of his defence. The defendant tee to Bla bib wnitten statement within thirty days from the date of service of summons onsummons to Oefondant to Appear and Answer the Ciaim 29 he defendant fails to file the written statement withi te re court may allow him to file the same on ee i ened by the court. which shall not be later than ninety days a ou Fi oat ‘service of summons. If, the court extends the time for filing of writt date rat, it shall ‘record the reasons in writing. an fement m car and answer the claim” : ing of “to arpe il 4 Meats je summons, the court prescribes a date on which it expects the rendant to appeat and answer the claim. Usually, the court does not pass del vorder on the plaint without hearing the defendant. But, if the defendant ony to appear on the stipulated date and place, the court may pass such fa . rs as may be deemed fit in the facts and circumstances of the case. order ig not necessary that the defendant may appear personally before the tin compliance of summons He may also give his appearance through oe angel or authorized representative. Thus, it is the choice of the defendant ear either personally or through counsel. (0 Fe expression "to appear and answer the claim" denotes an opportunity the defendant to meet the claim or to show cause against the claim put Peward by the plaintiff in the sult. Meaning of “may be served” : It may be appreciated that mere issuance of summons is not sufficient. f summons on the defendant is necessary. If the summons is regued but not served upon the defendant, the very purpose of summons would be defeated. Due service can be effected in the manner prescribed by the Code. When summons is received by the defendant under an ihe onledgement, it is said to have been duly served. The object of service ack’wamons is that the defendant may be informed of the institution of suit in due time before the date fixed for hearing. It is to give an opportunity to the defendant to appear and answer the claim raised by plaintiff. The Simmons along with a copy of the plaint may be served upon the defendant in any of the modes recognized by the Code. In Gitanjali Lifestyle Ltd. In the matter between : Fountainhead Promotions and Events Pot. Lid. v. Gitanyjali Lifestyle Lid," the Bombay High Court held that service of writ of summons on holding company though at the same address that of subsidiary company would not amount to service on subsidiary company or vice-versa. The service 0! [Order V, Rule 2] : the defendant along with the bbe accompanied by a concise Copy or statement to be annexed to summons A copy of the plaint shall be sent to summons. If so permitted, the summons may statement. In Nahar Enterprises v. Hyderabad Allyn Ltd,’ the Apex Court held thst when a summons is sent calling upon a defendant to appear in the court and file his written statement, it is obligatory on the part of the court 10 send a copy of the plaint and other documents appended thereto, in fermé of Order V, Rule 2. In the absence of a copy of plaint and other documents, the defendant would be unable to file his written statement. 1. 2014(1) Mh. LJ 468. 2 (2007) 9 SCC 466,20 ‘The Code of Ovi Procedure, 1908 Object of summons It i one of the settled principles of natural justice that no one should be condemned unheard. In other words, opportunity of being heard must be afforded to the partes. This principle is known as audi alteram partem. Section 2 gives effect to this principle. Therefore, after institution of a suit, the court issues summons to the defendants. The object behind issuance of summons ls to give an opportunity to the defendant of being heard to refute the allegations made against him. The summons is accompanied by a copy of the plaint so that he is not in dark as to the claims made against him. APPEARANCE OF DEFENDANTS : [Order V, Rules 1, 3 and 4] : A defendant, to whom a summons for appearance has been issued, ig bound to comply with it Choice of defendant as to appearance in court {Order V, Rule 1] : The defendant enjoys a choice either to appear in person or by a pleader duly instructed and able to answer all material questions relating to the suit or by a pleader accompanied by some person able to answer all such questions. But, where the court requires personal appearance of the defendant, the summons shall order him to appear in person in court on the day therein specified. In such a case, the options available to the defendant shall cease to exist. Court may order defendant or plaintiff to appear in person [Order V, Rule as If, the court requires the personal appearance of the defendant, the summons shall order him to appear in person in court on the day therein specified. If, the court requires the personal appearance of the plaintiff on the tame day, it shall make an order for such appearance. No party to be ordered to appear in person unless resident within certain limits [Order V, Rule 4] : Only those parties may be ordered to appear in person under Rule 3 who reside : (i) within the local limits of the court's ordinary original jurisdiction, or (li) outside such limits but at a Place less than 50 miles or where public conveyance is available less than 200 miles from the court-house. CONTENTS OF SUMMONS [Order V, Rules 5 to 8): () Summons to be either to settle issues or for final disposal {Order V, Rule 5}: The summons shall contain a direction whether the date fixed is for settlement of issues only or for the final disposal of the suit. If the summons {8 for the final disposal of the suit, it shall also direct the defendant to produce all witnesses upon whose evidence he intends to rely in support of Nis case. However, in case where the suit is heard by Small Causes Court, the summons shall be for the final disposal of the suit. (ii) Fixing day for appearance of defendant [Order V, Rule 6] : The day for the appearance of the defendant shall be so fixed as to allow the defendant sufficient time to appear and answer on such day.‘Summons to Defendant to Appear and Answer the Ciaim 2ay (iii) Summons to order defendant to produce documents relied on by him [Order V, Rule 7] : The summons to appear and answer shall also contain an order to the defendant to produce all documents in his possession or power upon which he intends to rely in support of his case. (iv) On issue of summons for final disposal, defendant to be directed to produce his witnesses [Order V, Rule 8] Where the summons is for the final disposal of the suit, it shall also direct the defendant to produce all witnesses upon whose evidence he intends to rely in support of his case. () Summons must be signed and sealed : ‘A summons must be signed by the Judge or any officer appointed in this behalf. It must be sealed with the seal of the court. SERVICE OF SUMMONS : Settled principles of natural justice demand that the defendant must be afforded an opportunity of being heard. This is exactly the reason why the summons is issued to the defendant intimating him the date on which his appearance is sought by the court to refute the allegations. However, only issuance of summons to the defendant is not enough. The summons must reach the defendant. It is required to be served on the defendant. In other words, service of summons to the defendant must be effected. When summons is received by the defendant under an acknowledgement, it is said to have been duly served. In Prabin Ram Phukan v. State of Assam,’ it was held that there is a distinction between non-service of notice and a notice though served but with some kind of procedural irregularities in serving. In the case of former category of cases, all consequential actions, if taken, would be rendered bad in law once the fact of non-service is proved. In the case of latter category of cases, the consequential action, if taken, would be sustained. It is for the reason that in the case of former, since the notice was not served on the person concerned, he was completely unaware of the proceedings which were held to be behind his back thereby rendering the action “illegal”. In the case of latter, he was otherwise aware of the proceedings having received the notice though with procedural irregularity committed in making service of such notice on him. If a person has a knowledge of the action proposed in the notice, then the action taken thereon cannot be held as being bad in law by finding fault in the manner of effecting service unless he is able to show substantial prejudice caused to him due to procedural lapse in making service on him. It, however, depends upon individual case to case to find out the nature of procedural lapse complained of and the resultant prejudice caused. The case in hand falls in former category of case. It is mandatory on the part of the State to serve a proper notice to a person, who is liable to pay any kind of State’s dues, strictly in the manner prescribed in the Regulation. It is equally mandatory on the part of the State to give prior notice to the defaulter for recovery of dues before his properties, movable or/and immovable, are put to sale in the manner prescribed in the Regulations. It is a settled principle T. (2015) 3 SCC 605 : AIR 2015 SC 1252.if y 2 Tho Code of Civil Procedure, 1908 of law that no person can be deprived of his property or any interest in the property, save by authority of law. Article 300-A of recognizes this constitutional right of a person, which was till as the fundamental right of a citizen. Indeed whether the fundamental or constitutional, the fact remains that it has always been Tecognized as a Tight guaranteed under the Constitution in favour of a citizen/person and hence no person cannot be deprived of this valuable right which the Constitution has given to him save by authority of law. In the case in hand, the appellants were deprived of the land in question without following the Procedure prescribed in law because the so-called auction wa: is conducted by the State behind their back and without their knowledge. The action of the State was thus clearly violative of the appellants’ constitutional right guaranteed under Article 300-A, and hence, such action cannot be sustained in law Thus, the action taken by the State for realization of arrears of land revenue dues from the appellants is also bad in law yet for another reason which neither tre Board nor the High Court took noie of it. the “Constitution 1978 recognized PERSONS ON WHOM SUMMONS SHALL BE SERVED [Order V, Rules 10 to 15] : A summons shall be served on following persons :-— () The defendant—A summons shall be served on the defendant by delivering a copy of summons on him. (Rule 10) Gi) Each defendant, if there are several defendants. —The service of the summons shall be made on each defendant, ‘if the number of defendants is two or more. (Rule 11) Gi) Defendant’s agent empowered to acce practicable, the service of summons shall be ma otherwise service can be made on his a service. (Rule 12) (iv) Defendant's Manager.—If, the suit relates to business or work of the defendant but the defendant does not teside within the jurisdiction of court issuing summons, service of summons can be made on any manager or agent who personally carries on such business or work for such defendent (Rule 13) pt the service—As far as ide on defendant in person, gent who is empowered to accept (v) Any agent of the defendant—If, the suit relates to immovable Property and service cannot be made on the defendant in person and there 's no agent empowered to accept the service, the service may be made on any agent of the defendant in charge of the property. (Rule 14) (i) Any adult member of defendant's family.—If, at the time of service of summons, the defendant is absent from his residence and is not likely to be available within a reasonable time and there is no agent empowered to accept the summons, service may be made on any adult member of the family residing with him. (Rule 15) SERVICE OF SUMMONS BY COURT [Order V, Rule 9] : If the defendant himself resides within the jurisdiction of court : Tf, the defendant hi ‘imself resides within the jurisdiction of the court in Which the suit is instituted, the summons shall be served through proper‘Summons to Defendant to Appear and Answer the Ciaim 2463, officer of the court or through approved courier service. The summons may also be served by registered post acknowledgement due, by speed post, by courier service, fax, e-mail or by any other permissible means. The expenses of such service of summons shall be made borne by the plaintiff. If the defendant’s agent resides within the jurisdiction of such court : The officer of the court may serve the summons on the agent of the defendant if such agent resides within the jurisdiction of court in which suit is instituted and is empowered to accept the service of the summons. The summons may also be sent to such agent through approved courier service or by registered post acknowledgement due or by speed post or by fax or by e-mail or by any other permissible means. The expenses of such service of summons shall be made bore by the plaintiff. If the defendant resides outside the jurisdiction of court : If, a defendant resides outside the jurisdiction of the Court in which the suit is instituted, the summons shall be served through proper officer of the court within whose jurisdiction the defendant resides. When summons are said to be duly served on defendant : The court issuing the summons shall declare that the summons have been duly Served on the defendant when : (a) an acknowledgment or any other receipt signed by the defendant or his agent is received by the court; or the postal article in which summons was sent is received back by the court with an endorsement of a postal employee or of any authorized person of the courier service saying that the defendant or his agent had refused to take delivery of the postal article, or (©) If the summons was sent by registered post acknowledgement due © on proper address, but the acknowledgment been lost or has not been received by the court within thirty days from the date of issue ~) of summons. SUMMONS GIVEN TO PLAINTIFF FOR SERVICE : SERVICE OF SUMMONS BY PLAINTIFF THROUGH "HAMDAST" [Order V, Rule 9-A] : A plaintiff may make an application to the court saying that he himself would serve the summons on the defendant. The court may allow the application and permit the plaintiff to effect service of summons on the defendant: In that case, the court issues the summons for the appearance of the defendant and delivers it to such plaintiff for service. The summons so handed over to the plaintiff for serving on the defendant is known as “Hamdast’ or “Dasti', iz., by hand. The "Hamdast" is allowed in addition to service of summons by court. Where the plaintiff has been allowed to himself effect the service of summons on defendant, the plaintiff shall personally deliver a copy of summons on the defendant. The plaintiff shall obtain the signature of defendant on the acknowledgement. If, such summons is refused, or if, the defendant refuses to sign an acknowledgment or for any other reason such’ summons cannot be served personally, the court may re-issue such summons to be served by the court. ©)The Cove of Cit Procedure, 1908 ACKNOWLEDGEMENT AND ENDORSEMENT [Order V, Rules 16 and 1S] When a copy of the summons is delivered to the defendant Personal} er to lus agent or to any other person on his behalf, the signature of sy, person shall be obtained towards acknowledgement of service, endorseq o the onginal summons. The serving officer shall also endorse 2 Tetum stating — @ time when the summons was served on the defendant. (a) manner in which the summons was served. (i) name and address of the person who identified the person serveq wv) name and address of person in whose presence the summons wag delivered. SUBSTITUTED SERVICE [Order V, Rules 17 The term “substituted service" dé This kind of service is different from ordinary methods of service des. above. Recourse to substituted service can be taken only when or methods fail to effect the service of summons on the defendant. substituted service is not the Tegular mode of service and it should be only as last resort. The circumstances in which substituted service called in aid are as follows :-— @ When the defendant or his agent refuses to summons and does not sign the acknowl (G) When at the time of service of si from his residence. GG) If defendant has ro agent empowered to accept service of the summons on his behalf. Gv) If the defendant is deliberately avoiding service of summons, When defendant refuses to accept service or is absent from his residence or has no agent-by affixing summons [Order V, Rule 17] : This rule contemplates three kinds of situations that may arise while effecting service of notice to the defendant by the courts officer viz, : — © the defendant or his agent refuses to sign the acknowledgement; (S) at the time of service of summons, the defendant is abSent from his residence and is not likely to available at the residence within a reasonable time; (Gi) the defendant has no a summons on his behalf. ‘The rule provides that in these circumstances, affix a copy of the summons on the outer door or part of the house in which the defendant ordinai business cr personally works for gain. After so affixing the copy of summons, the serving officer shall return the original summons to the issuing court with a report stating about :— ( affixture of copy of summons by him; (a) the circumstances under which he affixed the summons; (Gi) name and address of the person who identified the house; and and 20] : fenotes a service by altemative modes, ‘cribeg ‘din allowed can be accept the service of ledgement. summons, the defendant is absent gent empowered to accept service of the the serving officer shall some other conspicuous ily resides or carries onSummons to Defendant to Appear and Answer the Claim 245 (iv) name and address of the person in whose presence the copy was affixed. This kind of service is often called as “chaspa service”. The word “chaspa means to stick or to paste or to affix. In T. Vijendradas v. M. Subramanian,' the purported intimation given to the plaintiff-respondents was also found to be an act of fraud on his part in as much as the purported notice to the plaintiff-respondents had deliberately been sent at a wrong address. The contents of the notice have also not been brought on record. In the suit only the registered cover had been filed but the contents thereof had not been disclosed. It was obligatory on the part of the appellant to bring the office copy of the said notice on the record. Despite having sufficient means he voluntarily suffered an ex parte decree. He never objected to reduction of upset price. He, despite the fact did not contest the suit, participated in the auction-sale and purchased the property in the name of his wife. Not only that, the auction-purchaser sold the property to a third party, who again despite the knowledge of pendency of the suit transferred the property in favour of the appellants. It was held that filing of the registered cover of the notice is not enough. The contents of the notice have also to be brought on record. If the defendant is deliberately avoiding service of summons by affixing summons—by newspaper advertisement [Order V, Rule 20] : Where the Court is satisfied that the defendant is purposefully avoiding service of summons or that for any other reason the summons cannot be served in the ordinary way, it may order that the summons may be served by -— (i) affixing a copy of the summons in some conspicuous place in the court-house. (ii) affixing a copy of summons in some conspicuous part of the house, in which the defendant last resided or carried on business or personally worked for gain. (ii) advertisement in a daily newspaper having circulation in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or -personally worked for gain. Where service is substituted by order of the court, the court shall fix such time for the appearance of the defendant as the case may require. Effect of substituted service : Substituted service can be made only by order of court. It is as effective and valid as personal service by court. Substituted service is deemed to be service made on the defendant personally. In Great Punjab Agro Industries Limited v. Khushian,? the appellant was residing in Bombay. The notice was served on him by way of substituted service published in the newspapers circulated only in the State of Punjab. It was held that the procedure prescribed under Order V, Rule 20 (1-A) has been violated. The summons upon the appellant cannot be said to be 1. (2007) 8 SCC 751. 2 (2005) 13 SCC 503.Be The Code of Civil Procedure, 1908 effectively served. Hence ex parte decree was set aside. The trial court wa dhrected to proceed in accordance with law after serving proper notice to the defendant SERVICE OF SUMMONS WHERE DEFENDANT RESIDES IN ANOTHER STATE [Section 28] (VA summons may be sent for service in another State to such Court and ch manner as may be prescribed by rules in force in that State, 2) The Court to eich such summons is sent shall, upon receipt thereo proceed as if it had been d by such Court and shall then return the ;. to the Court of issue together with the record (if any) of its proceedings reto. (3) Where the language of the summons. sent for service in another State is different from the language of the record referred to in sub-section (2), a translation of the record, — (a) in Hindi, where the language of the or summons with regard Court issuing the summons is Hing; (®) in Hondi or English where the language of such record is other than Hind or English, shall also be sent together with the record sent under that sub Provision of Section 28 : This section deals with the situation wi herein the defendant resides in another State. It provides for the procedure of effecting service of summon on such a defendant. Sub-section (1) states that in such case, the issuing court may send the summons for service to a court in another State where the defendant resides. Subsection (2) says that after receiving the summons, the court to which Summons is sent, will retum the summons after service to the issuing court. ‘The court shall also send the record of proceeding of service of summons, if any. On such return reasonable presumption arises that the serving court had comecily served the summons. Sub-section (3) provides that if the language of summons is different than that of record of proceeding of service of summons, a translation of record shall also be sent by the serving court. This translation shall be Hindi Sanslation if the language of issuing court is Hindi. If the language of such record is other than Hindi or English, then either Hindi translation or English translation shall be sent. Object of Section 28 : Where the court issuing summons is situate in one State but the defendant resides in another State, a difficulty might arise in serving summons upon him. Section 28 seeks to resolve this difficulty by providing that a Sumunons may be sent for service in another State to such Court and that Court shail return the summons to the issuing Court together with the record of its proceedings. Sub-section (3) has been inserted with a view to avoid difficulty that may arise when the language of the court issuing summons is different trons She language of the court to which summons is sent for service. It may section,Summons to Defendant to Appear and Answer the Claim 267 appreciated that when a summons is sent for service to a court outside the State, the record of service of summons is likely to be in the court language of that State. The language of the serving court and the language of issuing court may not be the same. In such case, while trying the dispute, it may be difficult for the issuing court to conclude that the summons has’ been duly served. In order to deal with such a situation, it is made obligatory on the part of court returning the summons to send translation of the record of the Proceedings relating to service of summons in Hindi or English. SERVICE OF SUMMONS IN SPECIAL CASES : If the defendant resides within jurisdiction of another court (Order V, Rule aie If the defendant resides within the jurisdiction of another court, the summons may be sent to the court in whose jurisdiction the defendant resides. The issuing court may send the summons either by one of its officers or by post. Such court will serve the summons. is If summons is to be served within Presidency-towns : [Order V, Rule 22] Where the summons is issued by a court not being the courts at Calcutta, Madras and Bombay, but it is to be served within the Presidency towns of Calcutta, Madras and Bombay, such summons shall be sent to the Court of Small Causes within whose jurisdiction it is to be served. Duty of court to which summons is sent [Order V, Rule 23] : The court to which a summons is sent, shall proceed as if it had been issued by such court only. After service, the serving court shall return the summons to the issuing court, together with the record of its proceedings. If the defendant is confined in prison [Order V, Rule 24] : Where the defendant is confined in a prison, the summons shall be delivered or sent by post to the officer-in-charge of the prison for service on the defendant. If defendant resides out of India and has no agent [Order V, Rule 25] : Where the defendant resides out of India and has no agent in India empowered to accept service, the summons shall be sent to him at the place of his residence by post or by fax, or by e-mail. Service in foreign territory through Political Agent or Court [Order V, Rule 26) : If the defendant resides in a foreign country in which a Political Agent has been appointed by the Central Government, the summons may be sent to such Political Agent by post. The return sent by the Political Agent with an endorsement that the summons has been served on the defendant shall be evidence of service. If the defendant resides in a foreign country in which a court has been established or continued by the Central Government, the summons may be sent to such court by post. The return sent by the court with an endorsement that the summons has been served on the defendant shall be evidence of service.