Ayesha Islam Kanta

Z. H. Sikder University of Science and Technology

Summons

1. Introduction
When the plaintiff files a suit, the defendant has to be informed that the suit has been filed against
him, and that he is required to appear in the court to defend it. The intimation which is sent to the
defendant by the Court is technically known as Summons.
Section 27 and order v deals with the serving of summons.
According to section 27, where a suit has been duly instituted, a summon may be issued to the
defendant to appear and answer the claim and may be served in manner prescribed.

2. Meaning and Definition of Summons

Though the expression summons has not been defined in the code, according to the dictionary
meaning,
A summon is a document issued from the office of a court of justice, calling upon the person to
whom it is directed to attend before a judge or officer of the court for a certain purpose.
In other words,
A summon is a court order to an individual to appear in court at a specified time and place.

3. Object of issuing summons

A summon may be issued in both civil and criminal cases. When a suit is filed by the plaintiff
against the defendant and a relief is claimed, the defendant must be given an opportunity as to
what he has to say against the prayer made by the plaintiff. This is in consonance with principle of
natural justice as audi alteram partem that means no one can be condemned unheard. If the
defendant is not served with the summons, a decree passed against him will not bind him.

Order V
When a suit has been duly instated, a summon shall be issued by the officer of the court appointed
in his behalf to the defendant within five working days, from the date of filling the suit appear and
answer the claim on a day to be specified therein. But if the officer of the court fails to issue the
summon within the said of time, he shall be liable for misconduct. However, no such summons

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shall be issued when a defendant has appeared at the presentation of plaint and admitted the
plaintiffs claim.
A defendant to whom a summon has been issued under sub rule (1) may appear-
a. In person
b. By a pleader duly instituted and able to answer all material question relating to the suit.
c. By a pleader accompanied by some person able to answer all question.

4. Essentials of summons1
Every summons shall be signed by the judge or such officer appointed by him and shall be
sealed with the seal of the court.

Case Law
In Soinath agrwal vs. Srinath (1981), if a defendant appears before the court after registration
of the suit and he is informed about the case and the date fixed for reply, he shall be deemed
to have waived his right to have summon served on him.
In Panjab vs. Kuanwar Latif,
The court gives permission to plaintiff to sue in forma pauperism and registers the suit,
summons has to be served upon the defendant failing which the exparte decree passed must be
set aside.

Rule 2
Copy or statement annexed to summons. Summons cannot be deemed to have been served
unless it is accompanied by a copy of the plaint, where the court would not permit to furnished
with the summons-
General Auto vs. Hazari (1977)

Rule 3
If the court see reason to require the personal appearance of the defendant, the court shall order
him to appear in reason in on the day specified therein.
The court also may require the personal appearance of the plaintiff on the same day.

1
Rule 1(3) of CPC

2
 Case Law
Tashi vs. Birendra, Conditional order that the case shall stand dismissed for non-appearance
of party is illegal.

5. Appearance in Person
If the Court sees reason to require the personal appearance of the defendant, the court shall
order him to appear in person in Court on the day therein specified.2 The Court also may require
the personal appearance of the plaintiff on the same day.3 Apart from above circumstances the
court may require personal attendance where his pleader or the person accompanying the
pleader refuses or unable to answer any material question relating to the suit.4

6. Exemption from Appearance

a. No party shall be ordered to appear in person unless he resides:5

i. Within the local limits of the Courts ordinary original jurisdiction, or

ii. Without such limits but at place less than fifty or (where there is railway or steamer
communication or other established public conveyance for five-sixths of the
distance between the place where he resides and the place where the Court is
situated) less than two hundred miles distance from the court-house)

b. Women who, according to the customs and manners of the country, ought not to be
compelled to appear in public shall be exempt from personal appearance in court.6 But a
lady can no longer claim, as of right, the statutory exemption formulated in section 132, if
she has by a change in her made of life ceased to fall within the section. 7 A pardanashin
lady can get exemption from personal appearance in court.

2
Rule 3(1), Order V of the Code of Civil procedure, 1908
3
Rule 3(2), Order V of the Code of Civil procedure, 1908
4
Rule 4, Order X of the Code of Civil procedure, 1908
5
Rule 4, Order V of the Code of Civil procedure, 1908
6
S. 132(1) of the Code of Civil procedure, 1908
7
AIR 1918 cal. 743

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 c. The Government may exempt from personal appearance in court any person whose rank
entitles him to the privilege of exemption.8 But where any person exempted and he has
been examined by commission, he shall pay the costs of that commission.9
The service of summons is of primary importance as it is a fundamental rule of the law of
procedure that a party must have a fair and reasonable notice of the legal proceedings initiated
against him so that he can defend himself.
The Code prescribed the following modes of serving a summons to a defendant-
a. Personal service
b. Service on an agent
c. Service on adult male member
d. Service by affixation
e. Service by post
f. Substituted service

7. Personal service

Ordinary the service should so far as practicable be made personally on the defendant but if he has
an agent empowered to accept service, in which case service on such agent shall be sufficient.
Where the defendant is absent from his residence at the time when the service of summons is
sought to be effected on him at his residence and there is no likelihood of his being found at the
residence within a reasonable time and he has no agent empowered to accept service of the
summons on his behalf, service may be made on any adult member or his family, whether male or
female, but not a servant.

Case law
In RP Saha vs. Commission of IT, when a notice is served by way of summons, the authority
issuing the notice has to prove that the service had been served in accordance with the provision
of r. 12.
In Tripura Modern Bank vs. Been Senand CO, in order to treat a service on agent as valid, it must
be established that the agent was duly authorized to accept service on behalf of the defendant.

8. Service on agent

8
S. 133(1) of the Code of Civil procedure, 1908
9
S. 133(3) of the Code of Civil procedure, 1908

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A person who does not reside within the local limits of the jurisdiction of the court will be bound
by the service of notice on his manager or agent, provided at the time of service such manager or
agent personally carried on business or work for such person. Rule 13(1)
For the purpose of this rule the master of a ship shall be deemed to be the agent of the owner or
charter. Rule 13(2)
In Md. Omar vs. RM ins Co. Ltd service on the agent of a foreign company is valid if he has power
to enter into contract on the behalf of the company.
In Mahalaxmie Bank vs. Mhammad, a notice on a corporation may be served on the secretary or
on the Direction or other principal officer at the Register officer, but service by hanging the notice
on the outer swelling of the manager in charge is not service.

9. Service on adult member10

Where in any suit the defendant cannot be found and has no agent empowered to accept service of
the summons on his behalf, service may be made on any adult member of the family who is
residing with him. Service may be made on any male or female adult member. But a servant is not
a member of the family within meaning of adult member. In order to serve summons on an adult
member of the family two condition must be fulfilled.
1. The absence of the defendant must be from the residence and not from the place of business
and there must be no likelihood of the defendant being thereat within a reasonable time.
2. There is no agent empowered to accept service.

Case Law
In Abdur Rob Molla vs. Shahabuddin Ahmed, Mother not being an authorized agent of the
defendant, service of summons on mother is not valid service.

10. Service by post11

Before passing an exparte decree, the court should look into the service return and be satisfied
about the service of summons on the defendant. While giving decision on service of summons, the
court should also give decision on service through post. An acknowledgement purporting to be
signed by the defendant or an endorsement by postman that the defendant refused to take delivery
is prima facie proof of service. Under sub rule 2, the court shall declare that the summons has been
duly served in the circumstances therein, but this does not debar the defendant to show that
postman did never bring it to him and he did not refuse to receive summons. Examination of the

10
Rule 15 of CPC
11 Rule 19 of CPC

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postman is not always necessary and a denial of service by a party may be found incorrect from
his own admission or conduct.

11. Service by Affixing a Copy of Summons on Defendants House without an Order of the
Court:
Where the defendant or his agent or in their absence an adult member of the family refuses to sign
the acknowledgment, or where the serving officer, after using due diligence, cannot find the
defendant who is absent from his residence at the time when service is sought to be effected on
him at his residence and within a reasonable time and there is no such other person on whom
service can be effected, the serving officer shall affix a copy of the summons on the outer door or
some other conspicuous part of the house in which the defendant ordinarily resides or carries on
business or personally works for gain, and then shall return the original to the court from which it
was issued, with a report endorsed thereon stating that he has so affixed the copy, the circumstances
under which he did so, and the name and address of the person (if any) by whom the house was
identified and in whose presence the copy was affixed. If the court is satisfied it declares the service
to have been duly effected.

12. Delivery of Summons by Court

Where the defendant resides within the jurisdiction of the court in which the suit is instituted, or
has an agent resident within the jurisdiction who is empowered to accept the service of the
summons, the summons shall, unless the court otherwise directs, be delivered or sent either to the
proper officer to be served by him or one of his subordinates or to such courier services as are
approved by the court. The proper officer may be an officer of a court other than that in which the
suit is instituted and, where he is such an officer, the summons may be sent to him in such manner
as the court may direct. The service of summons may be made by delivering or transmitting a copy
thereof by registered post acknowledgment due, addressed to the defendant or his agent
empowered to accept the service or by speed post or by such courier services as are approved by
the High Court or by the court referred to in sub-rule (1) or by any other means of transmission of
documents including fax message or electronic mail service provided by the rules made by the
High Court.

13. Summons Given to the Plaintiff for Service

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The court may, in addition to the service of summons under rule 9, on the application of the
plaintiff for the issue of a summons for the appearance of the defendant permit such plaintiff to
effect service of such summons on such defendant and shall, in such a case, deliver the summons
to such plaintiff for service. The service of such summons shall be effected by or on behalf of such
plaintiff by delivering or tending to the defendant personally a copy thereof signed by the Judge
or such officer of the court as he may approve in this behalf and sealed with the seal of the court
or by such mode of service as is referred to in sub-rule (3) of rule 9. The provisions of rule 18 shall
apply to a summons personally served under this rule as if the person effecting service were a
serving officer.

It such summons, when tendered, is refused or if the person served refuses to sign any
acknowledgment of service or for any reason such summons cannot be served personally, the court
shall on the application of the party, re-issue such summons to be served by the Court in the same
manner as a summons to a defendant.

14. Substituted service

Where 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 reason the summons cannot be served in
the ordinary way, the court shall order the summons to be served by affixing a copy thereof in
some conspicuous place in the court house and also upon some 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 in such other manner as the court thinks fit. Service may be ordered to be
effected by publication in a local daily newspaper. Service substituted by order of the court shall
be as effectual as if it had been made on the defendant personally. (O. 5, R. 20).

15. Service of summons where defendant resides within the jurisdiction of another court. (O.
V, R. 21):
A summons may be sent by the court by which it is issued, whether within or without the state
either by one of its officers or by post or by such courier service as may be approved by the High
Court, by fax message or by Electronic Mail Service or by any other means as may be provided
by the rules made by the High Court, to any court (not being the High Court) having jurisdiction
in the place where the defendant resides.

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16. Service on defendant in prison. (O. V, R. 29):
Where the defendant is confined in a prison, the summons shall be delivered or sent by post or by
such courier service as may be approved by the High Court, by fax message or by Electronic Mail
Service or by any other means as may be provided by the rules made by the High Court, to the
officer-in-charge of the prison for service on the defendant.

17. Service on Civil Public Officer or on servant of Railway Company or local authority (O.
V, R. 27)
Where the defendant is a public officer, officer (not belonging to the Indian military, navel or, air
force) or is the servant of a railway company or local authority the Court may, if it appears to it
that the summons may be most conveniently so served, send it for service on the defendant to the
head of the office in which he is employed together with copy to be retained by the defendant.

18. Service on soldiers or sailors or airman (O. V, R. 28):

Where the defendant is a soldier, sailor or airman, the court shall send the summons for service to
his commanding officer together with a copy to be retained by the defendant.

19. Conclusion

Summons is a service, where informed to the defendant about the suit which was filed by the
plaintiff. It is the judicial process to inform the defendant to submit his appearance on behalf of
him and he get the chance to say something about the suit. Whether he is liable or not. Section 27
and order V provides the provision of summons. Here provides the provision of service of
summons. Even how a summons will serve in case of the absence of the defendant. If the defendant
is public servant of Bangladesh, then which procedure will be followed that is also specified in
that Code.

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Bibliography
1. Mahmudul Islam the Law of Civil Procedure,

2. Abdul Halim, Text Book on Civil Procedure

3. J. Mohammad Hamidul Haque, Trial of civil suit and Criminal cases, second edition,
2011

4. Hand Book On Code of Civil Procedure, Mahamud Wazed

5. C. K. Takwani, Civil Procedure, 7th edition