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APPEARANCE OF THE PARTIES AND EFFECT OF NON APPEARANCE/ EXPARTE DECREE
QUESTION BANK
Q.1. State provisions as to the appearance of the parties and consequences of non-appearance.
Q.2. What are the modes of service of summons?
Q.3. What are the rules as to the issue of summons?
SHORT NOTES
1) Setting aside ex parte decree.
2) Consequences of non-appearance of the parties.
3) Modes of service of summons.
4) Rules as to issue of summons.
SYNOPSIS
I. APPEARANCE AND CONSEQUENCES OF NON-APPEARANCE [ORDER IX]
1. Foundational Principle
2. Rules of Appearance and Judicial Action [Rule 1]
3. The Three Dimensions of Non-Appearance
A. Dismissal for Default of Both Parties [Rule 3 & Rule 4]
B. Procedure When Only the Plaintiff Appears [Rule 6, Rule 7 & Rule 10]
C. Procedure When Only the Defendant Appears [Rule 8 & Rule 11]
4. Defective, Delayed, or Unserved Summons [Rule 2, Rule 5 & Rule 6]
5. Setting Aside an Ex-Parte Decree [Rule 13 & Rule 14]
A. The Dual Grounds for Relief
B. Statutory Limitations and Protections
II. ISSUE AND SERVICE OF SUMMONS [ORDER V & SECTION 27]
1. Definition and Legal Mandate
2. Rules of Issuance [Rule 1 to Rule 8]
3. Absolute Exemptions from Personal Attendance [Section 132, Section 133 & Rule 4]
4. Statutory Modes of Service [Rule 9 to Rule 30]
A. Personal or Direct Service [Rule 10 to Rule 17]
B. Procedure on Refusal or Inability to Locate [Rule 17 & Rule 19]
C. Service by Court via Modern Media [Rule 9]
D. Service by the Plaintiff (Dasti Service) [Rule 9A]
E. Substituted Service [Rule 20]
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MODEL FORM OF A SUMMONS TO A DEFENDANT
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I. APPEARANCE AND CONSEQUENCES OF NON-APPEARANCE [ORDER IX]
1. Foundational Principle
The procedural architecture of Order IX of the Code of Civil Procedure, 1908 (CPC) is anchored firmly upon the cardinal principle of natural justice: audi alteram partemâ"no person shall be condemned unheard." The statute mandates that both sides be afforded a fair, just, and equal opportunity to present their respective cases before a court of competent jurisdiction. It details the exhaustive rules governing the formal appearance of litigants and establishes strict legal consequences for default. This framework ensures that judicial proceedings are conducted with equity, preventing arbitrary adjudications while safeguarding the statutory rights of both plaintiffs and defendants.
2. Rules of Appearance and Judicial Action [Rule 1]
On the day fixed in the summons for the defendant to appear and answer, the parties are statutorily required to attend the Court, either in person or through their duly appointed pleaders or advocates. Once the defendant's answer or written statement is filed, the Court shall proceed to hear the matter on the merits, unless an adjournment is explicitly directed to a future date for sufficient cause. The personal attendance of the parties is governed by the absolute discretion of the Court, keeping in view the requirements of the trial and the specific directions contained within the summons.
3. The Three Dimensions of Non-Appearance
A. Dismissal for Default of Both Parties [Rule 3 & Rule 4]
Where neither the plaintiff nor the defendant appears when the civil suit is called out for hearing by the bench clerk, the Court is empowered under Rule 3 to pass an order dismissing the suit. This structural remedy addresses mutual non-appearance and cleanses the judicial docket of inactive litigation.
Regarding remedies under Rule 4, such a dismissal does not extinguish the plaintiff's primary right to seek substantive justice. The plaintiff is legally entitled to pursue either of two mutually exclusive remedies. First, the plaintiff can file a fresh suit on the same cause of action, provided it is initiated within the limitation period prescribed under the Limitation Act, 1963. Second, the plaintiff can file an application before the same court to set aside the dismissal order by demonstrating a "sufficient cause" that actively prevented their appearance when the matter was called for hearing. If the court is satisfied with the explanation, it will order the restoration of the suit upon such terms as to costs as it deems fit.
B. Procedure When Only the Plaintiff Appears [Rule 6, Rule 7 & Rule 10]
Where the plaintiff attends the scheduled hearing but the defendant fails to appear when the suit is called out, the Courtâs course of action depends entirely on the verification of the service of summons.
Under Rule 6(1)(a), the procedure for an ex-parte hearing is initiated if it is proved to the satisfaction of the Court that the summons was duly served upon the defendant in sufficient time to enable them to appear and answer. In such circumstances, the Court may direct that the suit be heard ex-parte. If the plaintiff successfully substantiates their claims through an affidavit or oral evidence, the Court will pass an ex-parte decree.
Under Rule 7, an adjourned ex-parte relief mechanism is provided. Where the Court has adjourned the hearing of the suit ex-parte, and the defendant appears at or before such adjourned hearing, assigning a "good cause" for their previous non-appearance, the defendant may be heard in answer to the plaint. The Court will permit this entry into the defense upon such terms as to costs or otherwise as it directs, effectively reverting the suit to a contested state.
Under Rule 10, the code governs the partial appearance of plaintiffs. Where there are two or more plaintiffs, and some appear while others default, the Court may permit the suit to proceed at the instance of the appearing plaintiffs. The suit continues as if all plaintiffs had appeared, or the Court may pass such other order as it deems fit under the circumstances.
C. Procedure When Only the Defendant Appears [Rule 8 & Rule 11]
Where the defendant appears but the plaintiff fails to attend the court when the suit is called on for hearing, the Court must pass an order dismissing the suit under Rule 8, unless a statutory exception applies.
The exception of admission dictates that if the defendant explicitly admits the plaintiff's claim, either wholly or in part, the Court will bypass the absolute dismissal. Instead, it will pass a decree against the defendant to the extent of such admission, dismissing the remainder of the suit where the claim is contested or unadmitted.
The statutory bar under Rule 9 dictates that a dismissal under Rule 8 completely precludes the plaintiff from bringing a fresh suit on the exact same cause of action. The sole remedy available to the aggrieved plaintiff is to apply for an order to set the dismissal aside. The plaintiff must prove a "sufficient cause" that blocked their appearance, such as a sudden medical emergency or an act of God. An application under this rule must be made within 30 days from the date of the dismissal order as per the Limitation Act, 1963.
Under Rule 11, the partial appearance of defendants is outlined. Where there are two or more defendants, and some appear while others default, the suit shall proceed against the appearing defendants. The record is preserved as if all had attended, and the liability of the non-appearing defendants is determined at the final adjudication of the suit.
4. Defective, Delayed, or Unserved Summons [Rule 2, Rule 5 & Rule 6]
Under Rule 2, the plaintiff's financial default can lead to dismissal. If on the day fixed for the hearing it is discovered that the summons was not served upon the defendant due to the plaintiffâs failure to pay court fees, default in paying postal charges, or failure to supply the necessary plain copies of the plaint, the Court may dismiss the suit. However, no such dismissal order shall be passed if the defendant attends in person or through an agent on the day of the hearing despite the non-service.
Under Rule 5, a clear timeline governs the failure to apply after return. Where a summons is returned unserved by the bailiff, and the plaintiff fails to apply for the issuance of a fresh summons within a statutory period of 7 days from the date of the return, the Court shall dismiss the suit. The only escape from this dismissal is if the plaintiff establishes sufficient cause for the delay, such as proving that they made diligent search for the defendant's whereabouts but failed to locate them.
Under Rule 6(1)(b) and Rule 6(1)(c), procedural orders for fresh issuance are laid down. If service of the summons is not proved, the Court shall direct a fresh summons to be issued to the defendant. If the summons was served but not in sufficient time to allow the defendant to prepare an answer and appear on the fixed day, the Court must postpone the hearing to a future date. The Court will give formal notice of the adjournment to the defendant to preserve their right to a fair trial.
5. Setting Aside an Ex-Parte Decree [Rule 13 & Rule 14]
A. The Dual Grounds for Relief
Under Order IX, Rule 13, a defendant against whom an ex-parte decree has been passed may apply to the issuing court, or any court to which the decree has been transferred for execution, to have it set aside. The applicant must satisfy the Court on either of two independent counts. First, they must prove that the summons was not duly served upon them through any recognized legal channel. Second, they must prove that they were prevented by a genuine "sufficient cause" from appearing when the suit was called on for hearing. The expression "sufficient cause" is construed liberally by Indian courts to advance substantial justice, excluding cases of gross negligence or deliberate inaction.
B. Statutory Limitations and Protections
The rule against technicalities is embedded within the second proviso to Rule 13. It mandates that the Court shall not set aside an ex-parte decree merely on the ground of an irregularity in the service of summons, if it is completely satisfied that the defendant had clear, actual notice of the date of hearing and possessed sufficient time to appear and answer the plaintiff's claim.
The joint liability extension provides that if the nature of the decree is such that it cannot be set aside against the applying defendant alone due to a joint and inseparable liabilityâsuch as in a partition suit, a suit for specific performance, or a joint debt liabilityâit may be set aside against all or any of the other co-defendants as well, even if those co-defendants did not formally apply for relief.
Under Rule 14, mandatory notice is prescribed. No ex-parte decree shall be set aside under Rule 13 unless a formal notice of the application, along with its grounds, has been served upon the opposite party. This gives the plaintiff a fair opportunity of being heard, thereby upholding the principles of natural justice.
II. ISSUE AND SERVICE OF SUMMONS [ORDER V & SECTION 27]
1. Definition and Legal Mandate
A "Summons" is a formal judicial 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 an authorized judicial officer for a specific purpose. Under Section 27 of the CPC, once a civil suit is validly instituted by the presentation of a plaint, the Court must issue a summons to the defendant to inform them of the nature of the claim and demand their appearance. The exception to this rule is that no summons is required if the defendant appears at the time of the presentation of the plaint and admits the plaintiff's claim in full, rendering formal notice redundant.
2. Rules of Issuance [Rule 1 to Rule 8]
Under Rule 1, a strict statutory timeline is established. The summons calls upon the defendant to appear and answer the claim within 30 days from the date of the institution of the suit by filing a written statement. This period can be extended by the Court for reasons to be recorded in writing, but it cannot exceed 90 days, or as amended by specific state regulations and commercial court acts.
Under Rule 2, the modes of appearance are clearly defined. The defendant may appear in person, by a pleader or advocate who is fully instructed and able to answer all material questions, or by a pleader accompanied by some person able to answer such material questions.
Regarding authentication, every summons must be signed by the Judge or an authorized officer of the Court, sealed with the official seal of the Court, and accompanied by a true copy of the plaint. This ensures the legitimacy of the judicial command.
Under Rule 8, summons for final disposal can be issued. In suits of a summary or simple nature, or in matters before Small Cause Courts, the summons may be issued specifically for the final disposal of the suit. This explicitly directs the defendant to produce all their witnesses, documentary evidence, or electronic records on the very first appearance date, accelerating the adjudication process.
3. Absolute Exemptions from Personal Attendance [Section 132, Section 133 & Rule 4]
The Court cannot order the personal appearance of a party if they fall under any of the following protective statutory categories.
Under Rule 4, distance constraints are established. A party cannot be ordered to appear in person unless they reside within the local limits of the Courtâs ordinary original jurisdiction. If they reside outside such limits, they are exempt if the place of residence is more than 50 miles away from the courthouse. If public conveyance like railways, buses, or steamers is available for at least five-sixths of the distance, the exemption applies if the distance is more than 200 miles away.
Under Section 132, protection is extended to pardanashin women. Women who, according to the customs and manners of their community, ought not to be compelled to appear in public, hold an absolute exemption from personal appearance in court. A commission may instead be issued to record their evidence.
Under Section 133, dignitaries and high officials are exempt. High constitutional functionaries exempt by law include the President of India, the Vice-President of India, the Speaker of the Lok Sabha, Union Ministers, Governors of States, Speakers of State Legislative Assemblies, Judges of the Supreme Court of India and the various High Courts, and other high-ranking officials notified in the Official Gazette.
4. Statutory Modes of Service [Rule 9 to Rule 30]
The Code provides four main channels for serving a summons to ensure that actual or constructive notice reaches the defendant. These comprise Personal or Direct Service under Rule 10, Service by Court under Rule 9, Service by Plaintiff under Rule 9A, and Substituted Service under Rule 20.
A. Personal or Direct Service [Rule 10 to Rule 17]
This remains the primary mode of service under the CPC. It is executed by physically delivering or tendering a duplicate copy of the summons, signed by the Judge and sealed, directly to the party or their authorized representative.
Under Rule 12, service on an agent is preferred wherever practicable. Service should be made on the defendant in person or an agent authorized to accept service of process on their behalf.
Under Rule 15, the adult family member rule is invoked where the defendant is absent from their residence and cannot be found within a reasonable time. If there is no authorized agent, the summons may be served on any adult member of the family (whether male or female) residing with them. A crucial statutory clarification notes that a domestic servant is not considered a member of the family under this rule.
Under Rule 13, service on business managers is permitted. In suits regarding a business or commercial work against a non-resident defendant, service on the manager or agent personally carrying on the trade or business within the local limits of the court's jurisdiction is deemed good service.
Under Rule 14, service on immovable property agents is allowed. In suits for obtaining relief respecting immovable property, if personal service cannot be effected on the defendant and they have no authorized agent, the summons can be validly served on any agent in charge of the land or property.
B. Procedure on Refusal or Inability to Locate [Rule 17 & Rule 19]
If the defendant or their agent refuses to sign the acknowledgment slip, or if the serving officer cannot find the defendant after exercising due diligence, the officer must follow the mandatory "affixture" procedure under Rule 17.
The serving officer must affix a copy of the summons on the outer door or some other conspicuous part of the house where the defendant ordinarily resides, carries on business, or personally works for gain. They must then return the original summons to the Court with a verified report detailing the affixture, identifying the witnesses who witnessed the affixture, and stating the underlying circumstances.
Under Rule 19, the Court, after examining the serving officer on oath, may either formally declare that the summons has been duly served or order a fresh service as it deems fit.
C. Service by Court via Modern Media [Rule 9]
Where the defendant resides within the court's jurisdiction, the summons can be served via a process server or bailiff, or through approved courier services. The modern procedural framework allows simultaneous service via Registered Post Acknowledgement Due (RPAD), Speed Post, Fax, E-mail, or any other electronic messaging media permitted by the rules of the respective High Court.
Regarding refusal as deemed service, if the defendant or their agent refuses to accept delivery of the registered parcel containing the summons, the Court treats the postal endorsement of "refused" or "unclaimed" as a valid and complete service of process.
A presumption of service arises if the summons was properly addressed, prepaid, and duly sent via registered post. The Court will draw a statutory presumption of valid service under Section 27 of the General Clauses Act, 1897, and Section 114 of the Indian Evidence Act, 1872, even if the acknowledgment slip is lost, provided a specific period of 30 days has elapsed from the date of posting.
D. Service by the Plaintiff (Dasti Service) [Rule 9A]
In addition to the official service conducted by the court registry, the Court may, upon an application made by the plaintiff, permit them to take the summons and serve it directly upon the defendant. This is popularly known as Dasti service. The plaintiff must deliver the summons personally and return the duplicate copy to the court with the endorsement and signature of the defendant.
E. Substituted Service [Rule 20]
Where the Court is fully satisfied that there is reason to believe the defendant is deliberately keeping out of the way to avoid service, or that the summons cannot be served via ordinary channels despite diligent efforts, it can order Substituted Service.
This can be done by affixture, which involves affixing a copy of the summons in a conspicuous place in the Courthouse, and also upon the last known residence, workplace, or business premises of the defendant.
Alternatively, it can be done via newspaper publication. This involves publishing the summons in a daily local newspaper circulating widely in the locality where the defendant last actually and voluntarily resided, worked, or carried on business.
The legal effect of substituted service is that it operates as a legal fiction. It holds the exact same potency, validity, and legal effect as if personal service had been directly executed on the defendant in real time.
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MODEL FORM OF A SUMMONS TO A DEFENDANT
IN THE COURT OF THE CIVIL JUDGE, JUNIOR DIVISION, PUNE AT PUNE
REGULAR CIVIL SUIT NO. 27 OF 2026
Shri Ramrao Bajirao Pawar,
Age: 45 years, Occupation: Business,
Residing at: 12, Shivajinagar, Pune. ... PLAINTIFF
VERSUS
Shri Ashok Sahebrao Jadhav,
Age: 55 years, Occupation: Agriculturist,
Residing at: Chinchwad, Pune. ... DEFENDANT
TO,
Shri Ashok Sahebrao Jadhav,
Defendant above-named.
WHEREAS, the Plaintiff above-named has instituted a civil suit against you in this Court for the Recovery of Money Lent, amounting to Rs. 5,00,000/- (Rupees Five Lakhs Only), along with accrued interest, as detailed in the accompanying copy of the plaint;
YOU ARE HEREBY SUMMONED to appear in this Court, either in person or by a pleader/advocate duly instructed and able to answer all material questions relating to the suit, on the 25th day of September, 2026, at 11:00 O'clock in the forenoon, to answer the claim of the Plaintiff;
TAKE FURTHER NOTICE that you are required to produce a written statement of your defense within 30 days from the service of this summons, and to bring all documents, books of accounts, or electronic records upon which you intend to rely in support of your case on the day fixed for your appearance;
TAKE NOTE that in default of your appearance on the day and time specified above, the suit will be heard, determined, and disposed of ex-parte in your absence.
Given under my hand and the seal of this Court, on this 1st day of October, 2016.
Seal of the Court
Sd/-
Civil Judge, Junior Division,
Pune
*****
I. GENERAL-
II. RULES AS TO APPEARANCE AND EFFECTS OF NON-APPEARANCE OF PARTIES-
1) Appearance of parties (R. 1)-
2) Where neither party appears (R. 3)-
3) Where only the plaintiff appears (R. 6, 7 & 10)-
4) Where only the defendant appears (R.8 & R. 11)-
5) Where a summons is not served (R. 2, 5 & 6)-
6) Remedy to plaintiff on dismissal of a suit (R. 4)-
7) Setting aside ex-parte decree (R. 13)-
a) Remedies to the defendant against ex parte decree-
b) Setting aside ex parte decree (R. 13)-
c) Notice to opposite party (R. 14)-
8) Form of summons.
III. MODES OF SERVICE OF SUMMONS ON DEFENDANT (O. V)-
A] AS TO SUMMONS
B]. RULES AS TO ISSUE OF SUMMONS-
1) Summons to the defendant (S. 27 O. V, R. 1)-
2) Appearance of the defendant (R. 2)-
3) How is it drawn? (R. 2)-
4) Personal attendance of defendant or plaintiff (R. 3 & 4, Ss. 132 & 133)-
5) Fixing day for the appearance of the defendant (R. 6)-
6) Summons to the odder defendant to produce documents relied on by him (R. 7)-
7) Summons for final disposal (R. 8)-
C]. RULES AS TO MODES OF SERVICE OF SUMMONS (Rr. 9 to 30).
1) Personal or direct service-
Rules as to personal service of summons-
2) Service by Court (R. 9)-
3) Service of summons by the plaintiff (R. 9 A)-
4) Substituted service (R. 20)-
5) Service by post-
I. GENERAL-
âNo person shall be condemned unheardâ (i.e. every party to the suit must be given an opportunity of hearing) is the important principle of natural law. O. IX incorporates this principle. It provides for the appearance of the parties and the consequences of the non-appearance of the parties.
II. RULES AS TO APPEARANCE AND EFFECTS OF NON-APPEARANCE OF PARTIES-
1) Appearance of parties (R. 1)-
The parties to the suit should appear personally or through their pleader on the day fixed in the summons. The defendant must appear to answer the complaint. The court then hears the matter after receiving the defendantâs answer unless the hearing is adjourned to a future date.
2) Where neither party appears (R. 3)-
Where neither party appears when the suit is called on for a hearing, the Court can order that the suit be dismissed.
3) Where only the plaintiff appears / Ex-parte proceeding (R. 6, 7 & 10)-
Where the plaintiff appears, and the defendant does not appear, the plaintiff has to prove service of summons on the defendant. Once the service of summons is proved, the Court may proceed ex parte against the defendant and may pass a decree in favour of the plaintiff (R. 6). Such a decree is called an ex-parte decree.
However, where the Court had adjourned the hearing of the suit ex parte, and the defendant, at or before such hearing, appears and assigns the good reason for his previous non-appearance, he may (upon such terms as the Court directs as to costs or otherwise), be heard in answer to the plaint (R. 7).
According to R. 10, where two or more plaintiffs and one or more of them appear, and the others do not, the Court may permit the suit to proceed as if all the plaintiffs had appeared.
4) Where only the defendant appears (R.8 & R. 11)-
Where the defendant appears, and the plaintiff does not appear, and the defendant does not admit the plaintiffâs claim, the Court shall pass an order dismissing the suit. However, if the defendant admits the plaintiffâs claim as a whole or in part, the Court will pass a decree against the defendant upon such admission.
Where there are two or more defendants and one or more of them appear, and the others do not appear, the Court may permit the suit to proceed as if all the defendants had appeared (R. 11).
5) Where a summons is not served (R. 2, 5 & 6)-
Where on the day fixed for the hearing, it appears that the summons was not properly served upon the defendant owing to the plaintiff's failure to pay the Court fee, postal charges, or copies of the complaint, the Court may dismiss the suit (R. 2) or order the plaintiff to pay costs (R. 6 (2).
Where the plaintiff fails to apply for a fresh summons for seven days after the summons on the defendant is returned un-served, the Court shall dismiss the suit. However, if the plaintiff satisfies the Court with sufficient cause for his failure, the Court may extend the time for the service of summons (R. 5).
Where it is not proved that the summons is duly served on the defendant, the Court will direct a fresh summons to be issued and served on the defendant (R. 6 (1) (b).
Suppose it is proved that the summons was served on the defendant but not in sufficient time to enable him to appear and answer on the day fixed in the summons. In that case, the Court shall postpone the hearing of the suit to a future day to be fixed by the Court and shall direct notice of such day to be given to the defendant (R. 6 (1) (c).
6) Remedy to plaintiff on dismissal of a suit (R. 4)-
Where the suit is dismissed against the plaintiff as mentioned above, he may-
(i) bring a fresh suit (subject to the law of limitation), or
(ii) apply for setting aside dismissal on sufficient grounds.
7) Setting aside ex-parte decree (R. 13)-
As discussed above, where the plaintiff appears, and the defendant does not appear when the suit is called out for hearing, and if the defendant is duly served, the Court may hear the suit ex parte and pass a decree against him. In other words, if a defendant does not appear before the Court even after service of the summons to him, the Court will proceed ex-parte, and if the plaintiff proves his case, the Court will pass the decree accordingly.
a) Remedies to the defendant against ex-parte decree-
The following remedies are available to the defendant against whom an ex-parte decree has been passed:
i) to apply for setting aside ex-parte decree to the same Court (under R. 13),
ii) to prefer an appeal against such decree (S. 96 (2).
iii) to prefer review (O. 47)
iv) to file a fresh suit on the grounds of non-service of summons or fraud.
b) Setting aside ex parte decree (R. 13)-
If the defendant wishes to get an ex-parte decree set aside, he will have to put up an application stating sufficient grounds for it. If the defendant is able to satisfy the Court that either the summons was not duly served or, due to any other sufficient reason, he could not appear when the suit was called on for hearing, the Court may set aside the decree passed against him and appoint a day for hearing. While setting aside ex parte decree, the Court may order for payment of appropriate costs.
Proviso to R. 13 provides that if such ex-parte decree which is prayed to be set aside cannot be set aside against the applying defendant only (if there are more defendants against whom the order of ex parte decree has been passed), then the Court may set it aside against all those defendants.
As per R. 6, an ex-party decree can be passed if, despite the service of summons on the defendant, he does not appear. Therefore, if the service of summons is not proved on the defendant, the ex-parte decree can not be passed or may be set aside if already passed. However, proviso to R. 13 provides that the Court shall not set aside an ex parte decree merely on the ground of irregularity in service of summons.
c) Notice to opposite party (R. 14)-
No decree shall be set aside on any such application as aforesaid unless notice thereof has been served on the opposite party.
III. MODES OF SERVICE OF SUMMONS ON DEFENDANT (O. V)-
A) As to Summons-
O. V, deals with the modes of issue and service of summons on the defendant, whereas O. 16 deals with a summons to witnesses. It is an important natural principle that âno person should be condemned unheard,â, i.e. another party to the suit is also to be heard. Therefore, when the plaintiff files a suit against the defendant, it is mandatory for the Court to call or inform the defendant to answer the plaintiffâs plaint. Such calling or informing the defendant is called a âsummonsâ. The word âsummonsâ is not defined in the Code; however, it is to demand the presence of or call upon a person to appear. According to Dictionary, a summons 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.
B]. RULES AS TO ISSUE OF SUMMONS-
1) Summons to the defendant (S. 27 O. V, R. 1)-
When a suit is duly filed by the presentation of a plaint, the Court must issue a summons to the defendant, calling upon him to appear on a day specified therein and answer the claim of the plaintiff within thirty days from the institution of the suit by filing a written statement. However, no summons is to be issued if, at the time of presentation of the suit, the defendant is present and admits the suit.
2) Appearance of the defendant (R. 2)-
The defendant to whom the summons is issued may appear (a) in person, (b) by a pleader duly instructed and able to answer all material questions relating to the suit, or (c) by a pleader accompanied by some person able to answer all such questions.
3) How to be drawn? (R. 2)-
Every summons is to be signed by the judge or such officer appointed by him and shall be sealed with the court's seal and must be accompanied by the plant.
4) Personal attendance of defendant or plaintiff (R. 3 & 4, Ss. 132 & 133)-
Where the Court sees reasons to require the personal appearance of the defendant, the summons shall order him to appear in person in Court on the day specified therein.
However, no party shall be ordered to appear in person-
a) within the local limits of the Courtâs ordinary original jurisdiction or
b) without such limits but at a place (i) less than fifty miles or (ii) less than 200 miles if means of public conveyance is available like railway or steamer, etc.) (R. 4).
c) if a woman does not appear in public (S. 132).
d) who is entitled to exemption under the Code, like the President, the Vice-President, the Speaker, the Ministers of the Union, etc. (R. 133).
5) Fixing day for the appearance of the defendant (R. 6)-
The court has to fix a day for the defendant's appearance, taking into consideration the court's current business, the defendant's place of residence, the time necessary for the service of the summons, and sufficient time to enable the defendant to appear and answer on such a day.
6) Summons to order the defendant to produce documents relied on by him (R. 7)-
The summons to appear and answer shall also order the defendant to produce all documents or copies he intends to rely on in support of his case.
7) Summons for final disposal (R. 8)-
Where the summons is for final disposal of the suit, it shall also direct the defendant to produce, on the day fixed for his appearance, all witnesses upon whose evidence he intends to rely in support of his case.
8) Form of summons.
C]. RULES AS TO MODES OF SERVICE OF SUMMONS (Rr. 9 to 30).
There are the following modes of service of summons on the defendant, viz.
1) Personal or direct service-
Service of summons by delivering or tendering a copy thereof signed by the judge or such officer as he appoints on this behalf and sealed with the seal of the Court is called direct or personal service (R. 10).
Rules as to personal service of summons-
a) Whenever it is practicable, the summons shall be served on the defendant in person or on his authorised agent (R. 12).
b) Where there are two or more defendants, summons should be served on each defendant (R. 11).
c) 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 of the family, whether male or female, but not on the servant. (R. 15)
d) in a suit relating to any business or work against a person who does not reside within the local limits of the jurisdiction of the Court from which the summons is issued, service on any manager or agent, who, at the time of service, personally carries on such business or work for such person within such limits, is good service (R. 13).
e) In a suit for immovable property, service may be made on the agent in charge of the property if the defendant cannot be personally served and has no agent empowered to accept the service (R. 14).
f) Where the defendant refuses to accept service or cannot be found (R. 17 & 19).
If the defendant or his agent -
i) refuses to sign the acknowledgement or
ii) The serving officer, after due diligence, cannot find the defendant or
iii) there is no agent appointed to accept the summons or
iv) there is no other person upon whom service of summons can be made,
-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 return the original to the Court, with a report stating (i) that he has affixed copy (ii) the circumstances under which he affixed a copy of summons (iii) by whom the house was identified (R. 17). The Court after getting above report may on the affidavit of serving officer or his examination on oath and after further inquiry as it thinks fit, declare that the summons is duly served, or order such service of summons (re-issue) as it thinks fit. (R. 19).
2) Service by Court (R. 9)-
Where the defendant resides within the jurisdiction of the Court in which the suit is instituted or has an authorised agent residing within that jurisdiction, the summons shall be served through a Court officer or approved courier service upon him.
Summons can also be served by registered post, speed post, courier service, fax, e-mail, or by any other means permitted.
Where the defendant is residing outside the jurisdiction of the Court, the summons shall be served through an officer of the Court within whose jurisdiction the defendant resides.
The court treats refusal of acceptance of summons as a valid service of summons.
Where the summons is properly addressed, prepaid, and duly sent through the registered post, there will be a presumption of valid service in the absence of an acknowledgement slip.
3) Service of summons by the plaintiff (R. 9 A)-
In addition to the above means of service of summons, the Court may permit the plaintiff to serve summons upon the defendant.
4) Substituted service (R. 20)-
Service of summons by means other than mentioned above is called a âsubstituted service.
R. 20 provides that 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 ordinarily, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in Courthouse, and also upon some conspicuous part of the house 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.
The Court may order service of summons to be effected by publication in a local newspaper, which shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain.
The substituted service has the same effect as the personal or direct service of summons.
5) Service by post-
The Court may, in addition to, and simultaneously with the issue of summons for service, also direct the summons to be served by registered post acknowledgement due, addressed to the defendant or his agent empowered to accept the service, at the place where the defendant or his agent actually and voluntarily resides or carries on business or personally works for gain. (In fact, the Code of Civil Procedure Amendment Act 1999 has omitted the provision of âservice by postâ; however, some states, including Maharashtra, West-Bengal, and Tamil Nadu, have retained the provision with some changes)
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