Summons

According to section 27 and Order V rule 1, When a suit has been duly instituted, a summons shall
be issued by the officer of the Court appointed in this behalf to the defendant within five working
days from the date of filing the suit to appear and answer the claim on a day to be therein specified.
As per proviso of Or V rule 1, no such summons shall be issued when the defendant has appeared
at the presentation of the plaint and admitted the plaintiff's claim.
A defendant to whom a summons has been issued under sub-rule (1) may appear-
1. in person, or
2. by a pleader duly instructed and able to answer all material questions relating to the suit,
or
3. by a pleader accompanied by some person able to answer all such questions,
Under rule 5, The Court shall determine, at the time of issuing the summons, whether it shall be
for the settlement of issues only, or for the final disposal of the suit; and the summons shall contain
a direction accordingly.
As per rule 9, Where the defendant resides within the jurisdiction of the Court in which the suit is
instituted, or has an agent resident within that jurisdiction who is empowered to accept the service
of the summons, the summons shall be delivered or sent either to the proper officer to be served
by him or one of his subordinates or through courier service enlisted by the District Judge.
If there is any irregularity in the service or if there is no due or proper service, all subsequent steps
taken in the suit will have no legal effect. The Judge is to see whether in serving the summons, the
serving officer strictly followed the rules specially the rules 12-19 of Order V and rules 69- 78 of
the C.R.0. volume 1.
From the different rules (12 to 20) it appears that there are different modes of service-
❖ Personal Service;
❖ Service upon an agent;
❖ Service upon adult male members;
❖ Service by affixing copy of the summons;
❖ Service by registered post; and
❖ Substituted service
Personal service
As per Or V rule 12, wherever it is practicable, service shall be made on the defendant in person.
When the summons is delivered personally to the defendant, the serving officer shall obtain the
signature of that defendant and an endorsement as to the delivery in the original summons and in
the return the servicing officer shall mention the time, manner of delivery, name of the identifier,

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Sorted by Parvez Rahman from Hamidul Haque
if any, and names and addresses of the persons witnessing the delivery. Vide rules 16 and 18 of
Order V.
In a case reported in 44 DLR (AD) 98, was held that there was no due service because the serving
officer failed to comply with the provisions of rules 16 and 13 of Order V as he failed to state the
time when the service was made, the manner in which it was served and the names and addresses
of the persons identifying the person served and witnessing the delivery or tender of the summons.
Service upon an agent
If the service is made upon an agent, the agent must be an agent empowered to accept the service-
vide rules 12-14 of Order V, if no evidence is produced before the process-server that the person
accepting the summons is the authorized agent of the person to whom the summons is addressed,
there will be no proper service.
Service was not found to be due service because there was no evidence that the husband was the
authorized agent of the wife. Vide 7 BLT (AD) 125. The agent must be an agent within meaning
of Order III rules 1 and 2 and under rule 3, service upon a recognized agent shall be as effectual
as if the same had been served on the party in person.
Service upon an adult male member
When the defendant is absent and there is no likelihood of his being available, and when he has no
agent empowered to accept the summons, service may be made on any adult member of the family
of the defendant residing with such a defendant. So, if service is made on the father, brother or
brother's son of the defendant, it cannot be considered as due service unless it is proved that the
person receiving the summons resides with the defendant or is a member of his family. In case of
service upon an adult member, the facts as mentioned in rule 15 are to be stated in the return.
According to explanation, a servant is not a member of the family within the meaning of this rule.
Service by affixing copy of the summons
Rule 17 of Order V relates to the procedure for service by affixing a copy of the summons on the
outer door or at any other conspicuous part of the house of the defendant. The Judge must be very
careful before accepting service by affixation. The circumstances under which such service is
permissible are clearly stated in rule 17 which also provides that in the return, the process-server
must also state the facts and circumstances under which he served the summons by affixation.
Under the following circumstances such service can be made:
1. when the defendant or his agent refused to sign the acknowledgement,
2. when the defendant is absent and there is no likelihood of his being found within a
reasonable time;
3. when there is no authorized agent nor any other person available on whom service can be
made.
The defendant being a pordanashin woman could not come out to receive the summons, the
process-server finding no adult member or authorized agent to receive the summons, read over the
contents in presence of witnesses and affixed a copy of the summons and the plaint on the outer
doors of the house. The service was not due service because there is nothing to show that the
defendant refused to receive the summons.
Such service may be considered due and proper:
1. if the affixation is made under the above circumstances,
2. if all these facts and circumstances are clearly stated in the return,
3. if the name and address of the identifier (if any) and the persons in whose presence the
copy was affixed are mentioned in the return.
Service by registered post
In addition to service in accordance with other rules of Order V, the summons also shall be issued
and served by registered post with acknowledgement due addressed to the defendant or his agent
empowered to accept the service or an agent who voluntarily resides, carries on the business or
works for gain.
However, when the court considers it unnecessary, it may not pass any order for service by
registered post. When such summons is issued, if the defendant or the addressee refuses to take
delivery, in that case if there is such an endorsement by the postal employee, the court may declare
that the summons had been duly served. However, such a declaration will be valid only when the
address is correctly written and it is pre-paid with acknowledgement due. Even if the
acknowledgement is not received within thirty days, declaration of due service may be made by
the court. Vide rule 19B (2).
In view of sub-rules (3) and (4) to rule 9 of Order V, on the application of the plaintiff, the court
may pass an order for issuance of summons through fax message or electronic service at plaintiff’s
cost or though courier services.
Substituted service
Substituted service is permissible under rule 20 of Order V if the court is satisfied that there is
reason to believe
✓ that the defendant is keeping out of the way for the purpose of avoiding service, or
✓ that for any other reason the summons cannot be served in the ordinary way.
From the language of the rule, it is clear that the court must be satisfied and such satisfaction will
be based on some reasons. The expression 'reason to believe' makes it necessary to record the
reasons for passing an order for substituted service. Such order for substituted service may be
passed Suo moto by the court after examining the process-server who was assigned the duty of
effecting service or on the application of the plaintiff.
Without the order of the court, substituted service cannot be made. Rule 20 itself provides the
manner which are as follows:
1. by affixing a copy of the summons in some conspicuous place in the court house; and
 2. Upon any conspicuous part of the house, if any, in which the defendant is known to have
last resided or carried on business or personally worked for gain or;
3. in such other manner as the court thinks fit.
Such other manner may include publication of the notice in a widely circulated local newspaper.
When such service is affected by affixing copy of the summons in any conspicuous place as
provided in rule 20, affixation shall also be made in presence of at least two witnesses.
Proof of service
In most of the cases, to prove 'due service', the process-server is to be examined. Examination of
the process-server is necessary in order to ascertain the truth or otherwise of his report. Moreover,
the relevant rules also provide the circumstances and the manner of effecting service.
Rule 19 of Order V empowers the court to examine the serving officer on oath and to make such
an inquiry as it thinks fit to ascertain whether there was due service-or not. Such examination is
mandatory if the return has not been verified by the affidavit of the serving officer. See 40 DLR
147.
Rule 19A provides that a declaration made and subscribed by the serving officer shall be received
as evidence of the fact as to the service or attempted service of summons. However, it has been
decided that rule 19A did not take away the responsibility of the court to make any inquiry by
examining the serving officer on oath.
The High Court Division, upon consideration of the provisions of rule 17, 19 and 19A of Order V
of the Code of Civil Procedure, held the view that the process-server in his report having shown
that the summons was served by hanging, it was the requirement of the law to examine the process-
server on oath.