Overview:
Summonses are extremely significant in civil litigation because they advise the defendants about the
evidence against them and a capability of replying to it. Proper service of summons is critical in
supporting natural justice and provide fair trial since flaw service of summons may result in ex-parte
judgment or infringe a party’s right to an audience. This chapter will also explain the legal roles of
summonses as the Civil Procedure Code shows with reference to the role that they play in protecting the
fairness of processes.
1.2 Review of Literature
Speaking in the context of Indian law, M.P. Jain, in his work, “Indian Constitutional Law” discusses the
very principles of natural justice that require that summonses be served correctly.
In ‘Civil Procedure,’ C.K. Takwani goes further and analyses the procedures involved in summons under
the CPC and the implications of the improper serving of any summons.
Relevant Articles: The Indian Journal of Law and Justice among other journals contain articles focusing
on the practical issues of serving summons and the cases as passed by the courts.
Statement of Problem
Problems arise when the either the serving of the summons is ill-fitted or served inappropriately and
delay the fair trial process and may lead to unfair verdicts and ex-parte orders. This paper aims at
exploring challenges faced in giving efficient service under the CPC with special reference to how such
observed inefficiencies impact the rights accrued to a fair trial.
1.4 Hypothesis
The hypothesis of this paper is that proper service of summons is necessary to ensure the administration
of justice because it affords the defendant a reasonable time and opportunity to answer. Shortcoming in
the above-stated process an encroach the rights of the parties involved and may even be against the
principles of natural justice.
Research Objectives
1. To analyse the role of summons in CPC process, and its effects on the constitutionally protected fair
trial rights.
2. In order to measure the procedural rules and techniques of serving of summons.
3. To examine the challenges associated with poor service of summons and their impact on delivery of
justice.
1.6 Research Questions
1. In what regard do proper service of summons fit within the overall structure of the CPC?
2. How does improper service of summons impact on the right to fair trial?
3. What is required legally before serving summons, and what procedures surround the enforcement of
the same?
Research Methodology
This research applies the doctrinal and analytical approach to focus on legal instruments, case laws, and
secondary sources to assess the role of summons service. The methodology encompasses:
Case Law Analysis: Reviewing of legal precedence on summons service.
Literature Review: Where information is explored through legal commentary and scholarly essays.
Statutory Analysis: Examining part of the CPC that governs summons service.
1.8 Limitation of the study
That is why the scope of the presented research is limited only to the analysis of the summons service
according to the Civil Procedure Code, stressing its importance for having a fair trial. Hypothesis used an
absence of empirical analysis to qualify the derived findings; this study relies on secondary data and
legal authorities as its main supporting source.
Conclusion :
In conclusion the proper service of summons under Order 5 of the CPC is central to providing a fair trial
to parties in civil cases. Notice has been time and again upheld judicial opinions as an ingrain component
of natural justice as one is entitled to be informed about the proceeding. Likewise in Neerja Realtors Pvt.
Ltd. v. Janglu (2018), the occurrence of the emperor pointed that in a trial process it cannot be assumed
that it is fairly for a party that has not been given proper information and heard its side of the case.
Proper summons service is in itself gives strength to the legal adage ‘Audi Alteram Partem’ which means
Hear the other side, which is indeed the base of Natural Justice.
The directions, which the Court has elaborated in Salem Advocate Bar Association v. In Union of India
(2005), it is made abundantly clear that clear and efficient procedures of serving summons must be
followed because procedural informalities could easily impede justice processes. This ruling stresses on
both efficiency and equity by promoting electronic service and introducing strict time frame on serving
written statements so that the resultant FileSystem/Operating System created by civil litigants cannot
and should not be used to abuse the process or procedure to delay the litigation process.
Cases like Kailash v. Nanhku, (2005) and Puwada Venkateswara Rao v. Chidamana Venkata Ramana
(1976) also explain that the rule of law that are envisioned have a thought process behind them that
defendants cannot manipulate processes and bog the courts down with evasion or lack of cooperation.
However, when a defendant/ accused does this deliberately so that s/he does not get served with a
summons, the court will go ahead and serve him/her as would be deemed appropriate in order to
uphold the principle of ‘no trial, no swap’ so that justice may not only not be done but also be seen not
to be done.
As previously noted when deciding on various cases, judicial opinions have personally declared and, in
effect, considered summons to be as essential as fairly and efficiently serving the rights of the plaintiffs
on the one hand and the rights of defendants to adequate notice on the other hand. Together, these
precedents affirm that procedural fairness in summons service is essential, allowing both sides to be
heard and contributing to the rule of law as defined by Justice H.R. Khanna: To me the rule of law as
representing the complete opposite of arbitrariness. Compliance with rules of serving summons is
important for containing responsibility, recognizing accountability as well as upholding fair trial status in
any judicial procedure.
Chapter 4: The significance of Service of Summons under Civil Procedure Code in matter pertaining to
fair trial.
Rights of Proper Service of Summons in a Fair Trial
Proper service of summons is a prerequisite of commencing proceedings legally. Adequate service
guarantees an opportunity for the defendant to defend the case, as the jury cannot withstand the
temptation to side with the plaintiff and not gives the defendant a chance to counterclaim and make
sure that justice works equally as plaintiff and defendant.
Due Process and Procedural Fairness: According to the Indian Constitution under Article 21 the right to
life and personal liberty comprises the rights to fair trial. The CPC’s provisions for summons do not
infringe on constitutional rights, thus, defendants cannot be condemned without a chance to speak.
4.2 Dissertations of CPC Provisions for Fair Trial
Order V, Rule 1: Suggests that summons should Be issued to the defendant with a view of affording him
ample time to prepare his response.
Order V, Rule 9A: Permits the plaintiff or the plaintiff’s agent to serve summons making sure that the
defendant will respond. This other method may prove useful in increasing the rate of handling cases
whenever there is a scarcity of judicial officers.
4.3 Judicial opinions and landmark judgments
Sangram Singh v. Election Tribunal, Kotah (1955): The Supreme Court reiterated that a fair trial has to be
carried out in accordance with procedural law. The court emphasized the necessity of adequate serving
of summons so that the defendant might be heard.
D.K. Basu v. State of West Bengal: This was a criminal law case, but this ruling reminded litigants and
practitioners again the necessary protective measures in the preparation and execution of legal
documents. The court stated that the requirements of procedural fairness must necessarily always form
a part of any notion of a fair trial.
Justice V.R. Krishna Iyer: However, in delivering his judicial opinions, Justice Iyer pointed out that
procedural justice begins with notification. Service of summons is the first step to fair trial since it ushers
in the defendant into court through the open door, giving him/her a right of answer to the allegations
made against him/her.
4.4 Importance of proper service as a measure towards prevention of ex parte decree
Inadequate serving of summons creates voidable decrees in which judgment is made without the
knowledge or presence of the defendant in the wrong side of the case thus working hard to give a bad
ruling. This minimises such risks because through proper service, defendants are informed and appear
before the court to defend themselves.
4.5 Critique of Scholarly Articles on Fairness in Service Delivery
Legal Scholars’ Views: M.P. Jain and D.D. Basu also agree with the proposers of the code by stating that
provisions like service of summons are very vital in as much as they are instruments of defending due
process rights. It preserves the ‘equals balance’ that is the judiciary since the party petitioning gets a fair
hearings the same way the respondent does.
4.6 Key Judgments as far as the Role of Summons in a Fair Trial is concerned
M.C. Mehta v. Union of India: Although this case mainly arose under the domain of environmental law,
with regard to procedural fairness the court went over the right to be informed, and fairness starts with
that.
Krishan Lal v. State of Haryana: This judgment stressed that serving of summons is an essential
component of fulfillment of an individual’s right to be heard.
1. Right to Notice and Participation
Order 5, Rule 1 mandates that after a suit is filed, a summons must be issued to the defendant,
informing them of the proceedings. This ensures the defendant’s right to be informed and enables them
to participate in the trial process.
2. Adherence to Principles of Natural Justice
The proper service of summons under Order 5 supports Audi Alteram Partem (the right to be heard).
This principle of natural justice ensures the defendant has a fair chance to respond, which is
foundational to a fair trial.
3. Procedural Regularity and Fairness
Order 5 prescribes various methods for serving summons, such as personal service (Rule 10) and service
through registered post (Rule 9), ensuring that summons reach the defendant through an accountable,
traceable process, which helps avoid unfair trials due to procedural lapses.
4. Avoiding Ex Parte Proceedings
Correct service under Order 5 prevents ex parte judgments, which can occur if the defendant is unaware
of the proceedings. Rules 17-20 further detail alternative modes, like substituted service, to ensure the
defendant has the opportunity to participate even if direct service fails.
5. Time-bound Responses and Case Management
Order 5, Rule 1(1) and Rule 1(3) specify that the summons must require the defendant to file a written
statement within 30 days of receiving the summons, extendable to 90 days if justified. This provision
ensures timely responses, which help in efficient case management and prevents unnecessary delays.
6. Upholding the Integrity of Judicial Proceedings
Proper service of summons reinforces procedural legitimacy and integrity. Rules under Order 5, such as
Rule 9A allowing the plaintiff to serve summons in certain cases, ensure procedural compliance,
preventing accusations of arbitrariness or bias, and enhancing public confidence in the judicial process.
7. Protection Against Potential Evasion
Order 5 includes provisions like substituted service under Rule 20, which allows summons to be affixed
in a visible place if the defendant is deliberately avoiding service. This prevents evasion from stalling the
legal process, ensuring that the trial can proceed fairly.
8. Streamlining Legal Procedures to Avoid Delays
Order 5 also addresses practical issues to prevent delay, including service through other jurisdictions
(Section 28 and Rule 26), and service through electronic modes in specific cases. These provisions
support timely proceedings, ensuring the trial process is not unduly extended due to delays in serving
summons.
In essence, Order 5 of the CPC plays a crucial role in ensuring that summons are served properly, which
is fundamental to maintaining fairness, efficiency, and transparency in judicial proceedings, aligning with
the principles of a fair trial.
3. Modes of Service
Summons may be served in different ways, as outlined below:
(a) Personal Service (Rules 10-16 and 18)
Direct service involves delivering the summons to the defendant or their authorized agent. If the
defendant is absent, the summons may be given to an adult family member residing with them.
Rule 10: Service must be done by delivering or tendering a copy signed by the judge or an authorized
officer.
Rule 15: Allows service on an adult member of the defendant’s family if the defendant is not available.
Case Law: Cohen v. Nursing Dass (1892) - The court here stressed that to effect personal service, efforts
should be made to locate and serve the defendant personally rather than simply affixing the summons
on their door. This case underscores the importance of diligently attempting to serve the defendant
directly.
(b) Service by Court (Rule 9)
If the defendant is within the court’s jurisdiction, the summons may be served by an officer or a certified
courier service. The court can also use methods like registered post, speed post, or email.
Case Law: Salem Advocate Bar Association v. Union of India (2005) - The Supreme Court held that the
court should adopt safeguards to prevent false service reports and ensure the proper implementation of
summons service rules. This case established the need for accuracy and accountability in the service
process.
(c) Service by Plaintiff (Rule 9A)
The court may permit the plaintiff to serve the summons directly. The plaintiff must follow the same
process as court officers for personal service and comply with Rules 16 and 18.
(d) Substituted Service (Rules 17, 19, 20)
Substituted service applies if the defendant cannot be found or refuses to accept the summons. In such
cases, the summons can be affixed to the door of their residence or workplace, or published in a
newspaper.
Rule 20: The court must be satisfied that the defendant is evading service or that normal service is
impractical.
Case Law: S.V.P. Chockalingam Chettiar v. C. Rajarathnam (1964) - In this case, the court permitted
substituted service by publication in a newspaper, reinforcing that substituted service is equally valid as
personal service when properly ordered.
(e) Service by Post (Rule 9(3))
The CPC allows the service of summons by registered post or approved courier services. If the summons
is refused, the court may declare it "duly served."
Case Law: V. Rajakumari v. P. Subbarama Naidu - The court held that if the postal service returns the
summons as "refused," it is presumed that the summons was duly served. This case emphasized the
validity of service through registered post in ensuring the defendant's receipt of the summons.
4. Special Cases in Service of Summons
The CPC outlines specific rules for certain circumstances:
(a) Defendant in Another Jurisdiction (Section 28 and Order V, Rule 21)
If the defendant resides outside the court’s jurisdiction, the summons can be sent to a court in the
defendant’s jurisdiction. This facilitates cross-jurisdictional service.
Section 28: States that if the defendant resides in another state, the summons can be served through
the procedures followed in that state.
(b) Service in Foreign Territory (Section 29, Rules 25-26A)
Summons can be served in foreign countries through diplomatic or court channels, or through a
specified officer of the Indian government in foreign territory.
Section 29: Specifies that summonses from Indian courts can be served in other countries that have an
agreement with India for mutual judicial cooperation.
Rule 26: Summons can be sent to the Ministry of External Affairs for service in foreign jurisdictions.
(c) Exemptions for Certain Individuals (Section 133)
High-ranking officials, including the President, Vice-President, Supreme Court judges, and state
governors, are exempt from personal appearance in court under Section 133. This rule protects public
officials from undue personal inconvenience.
(d) Service on Corporations (Order XXIX)
For corporate defendants, summons can be served on a principal officer, director, or other authorized
representatives, or delivered to the registered office.
Case Law: National Sewing Thread Co. Ltd. v. James Chadwick & Bros. Ltd. - The court emphasized the
importance of serving corporations through their registered agents or office to establish proper
jurisdiction.
5. Case Law on Procedural Irregularities
Procedural irregularities in summons can affect the validity of proceedings. Courts typically assess
whether these irregularities have prejudiced the defendant.
Bheru Lal v. Shanti Lal (1985): The court ruled that objections regarding improper service must be raised
promptly. Delay in raising objections can be seen as waiver, allowing the proceedings to continue.
Prabin Ram Phukan v. State of Assam (2015): The Supreme Court ruled that if procedural irregularity in
summons service leads to significant prejudice against the defendant, the proceedings may be
invalidated.
Chapter 2: Cp Summon in the Civil Procedure Code
Overview
In civil procedure a ‘summons’ refers to a notice from the court to a defendant advising them of the
case filed against them. A summons is especially intended to inform the defendant about the case
brought forward by the plaintiff in order for the defendant to answer it.
2.1 Definition and Purpose of Summons
Definition by Jurists: The common feature of the analytics of the summons’ definition Black’s Law
Dictionary that can be retrieved online defines a summons as “a writ or process directed to an officer
and requiring the officer to notify the person named in the writ that a legal proceeding has been
commenced against him”.
Purpose: Summons are cornerstone methods for guaranteeing procedural fairness as well as the right
for a person to be heard. If there is no valid summons, a defendant is denied an opportunity to answer
the case against them and constitutional justice is not done.
2.2 Types of Summons under CPC
The CPC categorizes summons in various ways, including:
1. Ordinary Summons: Served to compel an attendance of a defendant to answer to a plaint.
2. Summons for Appearance: Mandates a defendant to present himself or herself in court at some
particular time.
3. Summons for Judgment: Which may be relevant where a summary judgment may be available (Order
XXXVII, CPC).
2.3 Sections of CPC Connected to Summons
Section 27: Rules that summons should only be served to the defendant after instituting the case.
Order V, Rule 1: Proves that the summons have to be served to the defendant for him to address the
claim within a given timeframe.
Order V, Rule 10: Outlines the first basic function of delivering summons correctly as a responsibility of
the courts.
