Volume 1 Chapter 1 Part-D
PART D. —
SERVICE OF PROCESSES
ISSUE OF SUMMONS TO THE DEFENDANT.
1. Summons for final disposal or settlement issues:- In Order V Rule 5, of
the Code of Civil Procedure, it is laid down that 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; and a proviso to the rule adds that in every
suit heard by a Court of Small Causes the summons must be for the final
disposal of the suit.
2. When summonses for final disposal may Issues:- In determining
whether the summons shall be for the settlement of issues only, or for the
final disposal of the case, the Court must be guided by the nature of the suit,
and the probability or otherwise of the facts stated in the plaint being disputed
by the defendant on grounds which will require the production of much
evidence or will involve much contention. Where the case appears simple, and
it seems probable that a correct judgment can be formed at the first hearing
from the examination of the parties ortheir agents, and such evidence, oral or
documentary, as they can bring with them, the summons should be for the
final disposal of the case.
3. Adjournment of case in case of summonses for final disposal:- It will
however, be remembered that when the summons is for final disposal, the
Court is not bound to dispose of the case on the date fixed for hearing, but
can adjourn the case to another date, to enable the parties to produce
evidence when this seems necessary in the interests of justice, and especially
when there is reason to believe, that one party has been taken by surprise
by the pleadingsof, or statements made on examination by the other.
4. Suitors should be made to know what summons for final disposal
means:- Care should be taken to make suitors understand, in cases in
which the summons is for final disposal, that all their evidence must be
produced on the day fixed for disposal.
5. Distinctive colour of summons for final disposal:- The form of summons
for the final disposal of a suit should be printed in the vernacular on coloured
paper, as this will tend to impress the distinction between this form and that
for settlement of issues, both upon the minds of the people, and upon the
officers of the Courts. Presiding Officers should take care in such cases that
the plaintiff understands that, if he wishes for the assistance of the Court for
the purpose of causing the production of his evidence, he must make timely
application.
6. Summons to be signed and seated. Copy of plaint to accompany it:-
Summonses should be clearly and legibly written and signed and, the seal
of the Court must be affixed. Order V, Rule 1 (3) of the Code requires that
the summons shall be signed by the Judge or such officer as he appoints.
In Courts, provided with a Superintendent or Clerk of Court he may be
authorized to sign summonses; in all other Courts the Reader may be
authorised to sign them. The signature should in all cases be fully and
legibly written. A copyor concise statement of the plaint should be attached to
each summons.
7. References:- As regards the general procedure to be followed in effecting
service of processes, personal attention to service and proof of service, special
procedure in the case of Government servants, and persons in Military
employ, etc., the time to be allowed for service of processes in foreign
countries, Chapter 7, Volume IV, "Processes—Civil Courts" may be referred
to. For service of Processes of Appellate Courts-- See Chapter 14-B, Volume I.
