Summons

Section 27 – 29 and Order V of the civil procedure code, 1908

deals with the procedure of service of summons.
Summons is a document that is used just to intimate the
person of him being involved in a suit. It is an opportunity
given to the defendant, to appear in the court of justice and
answer the claims made by the plaintiff. Any decree passed
against him without giving summons will not be binding upon
him.

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Forms and Essentials

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Every summons shall be signed by the judge and shall be
sealed with the seal of the court, and must be accompanied

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by a plaint .Every summons should be in the forms as

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prescribed in appendix B to the first schedule of the code.

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Content of Summons
3. Court may order defendanttr-5Q
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person.—(1) Where the court sees reason to require the

to appear in

personal appearance of the defendant, the summons shall

order him to appear in person in Court on the day therein
specified. (2) Where the Court sees reason to require the
personal appearance of the plaintiff on the 9Tsame 0P3P
day, it shall
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make an order for such appearance
. R(4). No party to be ordered to appear in person unless
resident within certain limits.—No party shall be ordered to
appear in person unless he resides— (a) within the local
limits of the Court's ordinary original jurisdiction, or (b)
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 situate) less than two hundred miles distance from
the court-house.

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The court shall determine whether the date fixed is for
settlement of issues only or for final disposal of the suit and

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should contain direction regarding that. If it is for the final

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disposal of the suit then defendant should be directed to
produce his witness .The court would also specify fixed time

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as to allow the defendant with sufficient time to appear and

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answer the claims made by the plaintiff against him. The

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summons should also contain an order to the defendant to

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produce all documents or copies thereof in his possession or
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in support of his

Modes of Service of Summons Issue of summon and

delivery of summon are different.
Issue of summons- Handing over to the court officer for
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its delivery.
When the summon is taken to the person it is called
service of summons.
Modes of service of summons
9. Delivery of summons by Court.—(1) Where the defendant
resides within the jurisdiction of the Court or has an agent
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 to
such courier services as are approved by the Court.
(3) The services of summons may be made by delivering or
transmitting a copy thereof by registered post

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acknowledgment due or by speed post or by such courier

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services as are approved by the High Court or by the above

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mentioned Court or by any other means of transmission of

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documents (including fax message or electronic mail service)
provided by the rules made by the High Court

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It is to be noted that the service of summons under this

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sub-rule shall be made at the expenses of the plaintiff.
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21. Service of summons where defendant resides within
jurisdiction of another Court.—A summons may be sent by
the Court by which it is issued to any Court having jurisdiction
in the place where the defendant resides.

Declaration as to service of summons

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When an acknowledgment or any other receipt purporting to
be signed by the defendant or his agent is received by the
Court or postal article with an endorsement that the
defendant or his agent has refused to take delivery of the
postal the Court shall declare that the summons had been
duly served on the defendant. Also that where the summons
was properly addressed, pre-paid and duly sent by registered
post acknowledgment due, such declaration shall be made
even if the acknowledgment having been lost or mislaid or
has not been received by the Court within thirty days from
the date of issue of summons.
(6) The High Court or the District Judge shall prepare a panel
of courier agencies for the purpose of service .

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In central electricity regulatory commission v. national

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hydroelectric power corporation ltd. Supreme court of India

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gave assent to the service of notice via email but in addition

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Service by plaintiff
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to the copy of the notice to be sent through post.

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9A. Summons given to the plaintiff for service.—(1)

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The Court may,
on the application of the plaintiff
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in addition to the service of summons under rule 9

permit such plaintiff to effect service of such summons on
such defendant and shall,
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deliver the summons to such plaintiff for service. (2) The

service of such summons shall be effected by or on behalf of
such plaintiff by delivering or tendering to the defendant
personally a copy by such mode of service as is referred to in
sub rule 9.
(4) If such summons, when tendered, is refused or if the
person served refuses to sign an 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.
Personal service

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10. Mode of service.—Service of the summons shall be made
by delivering or tendering a copy of the summons sealed and
signed by the court.
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11. Service on several defendants.— where there are more

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on each defendant. p
defendants than one, service of the summons shall be made

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12. Service to be on defendant in tr-person
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or on his agent who is empowered such service shall be

when
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sufficient.
13. In a suit relating to any business or work where
defendant does not reside within the local limits of the
jurisdiction of the Court, service on agent 0P3P
by whom
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defendant carries on business shall be deemed good service.
14. Service on agent in charge in suits for immovable
property.— Where in a suit to obtain relief respecting, or
compensation for wrong to, immovable property, service
cannot be made on the defendant in person, and the
defendant has no agent empowered to accept the service, it
may be made on any agent of the defendant in charge of the
property.
15. Where service may be on an adult member of
defendant's family.— Where the defendant is absent from
his residence at the time when the service of summons is

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found at the residence within a reasonable time and he has
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sought to be effected and there is no likelihood of his being

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no agent empowered to accept service of the summons on
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his behalf, service may be made on any adult member of the
family, whether male or female, who is residing with him.

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Explanation. —A servant is not a member of the family within

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the meaning of this rule.

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16. Person served to sign acknowledgement.— Where the
serving officer delivers or tenders atr-5Q
copy
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the defendant personally, or to an agent or other person on

the summons to
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his behalf, he shall require the signature of the person to

whom the copy is so delivered or tendered to an
acknowledgment of service endorsed on the original
summons.
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18. Endorsement of time and manner of service.—The

serving officer shall, where the summons is served under rule
16, endorse or annex on or to the original summons, the time
,the manner of service of summons and the name and
address of the person identifying the person served and
witnessing the delivery or tender of the summons.
Substituted Services
17. Procedure when defendant refuses to accept service, or
cannot be found.—
a) Where the defendant or his agent refuses to sign the
acknowledgment, or
b)Where the serving officer cannot find the defendant, and
there is no likelihood of his being found at the residence
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within a reasonable time and there is no agent empowered
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other person on whom service can be made
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to accept service of the summons on his behalf, nor any

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the serving officer shall affix a copy of the summons on

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the outer door or some other conspicuous part of the house

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in which the defendant ordinarily resides or carries on
business or personally works for gain,tr-5Q 1T
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the original to the Court from which it was issued, with a

shall then return
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report of such affixation , 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.
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Commissioner of Income Tax, West v. Ramendra Nath
Ghosh in this case the service was affected by affixture by
the inspector of income tax but in his report he did not
mentions the names and address of the person who
identified the place of business of the assessed nor did he
mention in his affidavit, so submitted, that he has the
personal knowledge of the same. The SC held that the service
of notice was not in accordance with law.
19. Examination of serving officer.—Where a summons is
returned under rule 17, the Court shall, if the return under
that rule has not been verified by the affidavit of the serving
officer, and may, if it has been so verified, examine the

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serving officer on oath, or cause him to be so examined by
another Court, touching his proceedings, and may make such

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further enquiry in the matter as it thinks fit; and shall either

such service as it thinks fit.

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declare that the summons has been duly served or order

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20. Substituted service.—(1) Where the Court is satisfied that

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the defendant is avoiding service, or

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that for any other reason the summons cannot be served in
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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 in which
the defendant is known to have last resided or carried on
business or personally worked for tr-gain, or0P3Pin such other
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manner as the Court thinks fit.

1A. Where the Court acting under sub-rule (1) orders service
by an advertisement in a newspaper, the newspaper 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.
(2) Effect of substituted service.—Service substituted by
order of the Court shall be as effectual as if it had been made
on the defendant personally.
Also read R24, 25, 27, 28, and 30 .

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AMENDMENT OF PLEADING
PLEADINGS: Pleadings are statement in writing delivered by
each party alternately to his opponent, stating what his
contentions will be at the trial, giving all such details as his
opponent needs to know in order to prepare his case in
answer. It is an essential requirement of pleading that
material fact and necessary particulars must be stated in the
pleadings and the decisions cannot be based on the grounds

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outside the pleadings. But many a time the party may find it
necessary to amend his pleadings before or during the trial of

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the case. O6R17 provides for Amendment of pleading.
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Or. 6 R. 17 : Amendment of Pleadings : The Court may at

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any stage of the proceedings allow either party to alter or
amend his pleadings in such manner and on such terms as

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may be just, and all such amendments shall be made as may
be necessary for the purpose of determining the real

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questions in controversy between the1J1T8F8Nparties:
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Provided that
no application for amendment shall be allowed after the trial
has commenced, unless the Court comes to the conclusion
that in spite of due diligence, the party could not have raised
the matter before the commencement of trial.
In the year 1999, the Legislature, on the
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recommendation of Jus. Malimath Committee, with a view to
avoid delay and to ensure expeditious disposal of suits,
deleted the Rule 17 from Or. 6 of C.P.C. Later in the year
2002, the Legislature reconsidered the objections of lawyers
and public at large in deleting the Rule 17 from Or. 6 C.P.C.
and restored the same with introduction and insertion of the
afore said proviso to the Rule 17.
In Salem Advocate Bar Association, Tamil Nadu V. Union
of India & Ors., (2005) 6 SCC 344, the Supreme Court has held
that the object of adding the proviso is to prevent frivolous
applications which are filed to delay the trial
Interpretation of Rule 17 of Order 6 CPC. The rules of

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interpretation to be followed in interpreting this provision

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are very simple. The provision can be divided into two parts.
The first part is discretionary (“may”) and gives wide and

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unfettered discretion to decide on case to case basis

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whenever it appears to be just. The court may or may not
allow the amendment to the proceeding for determining the

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real questions of controversy. The approach of the Court
should be liberal and not hypothetical. Hence, the

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amendment to proceedings is not a right; 1T
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rather it is in the
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discretion of the court. However, the court must exercise the

discretion applying the judicial mind according to the well-
established principles.

The second part is mandatory (“Shall”)

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and orders the
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court to accept all the applications necessary for the purpose

of determining the real issue between the parties if it finds
that the parties could not have raised the issue in spite of the
due diligence before the commencement of the trial.
 OBJECT : The object of rule 17 is to minimize the
litigation, minimize the delay and to avoid multiplicity of
suits. Therefore it has been included to do justice and not to
shut out justice merely on technicality of pleadings. Rule 17
was considered by Hon'ble Supreme Court in P.H. Patil vs.
K.S. Patil that “Courts should by the merits of the cases that
come before them and should consequently allow all
amendments that may be necessary for determining the real

not cause injustice or prejudice to the other side.

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question in controversy between the parties provided it does

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CARDINAL TEST : The cardinal test for deciding an
application for amendment is that :

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(i)

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Whether the amendment is necessary for the
determination of the real question in controversy.
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Can the amendment be allowed without injustice

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to other side.

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If the first condition is
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satisfied
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amendment is necessary to decide the “real

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that the

controversy” between the parties, the amendment

should be allowed.
Similarly the second condition is also equally
important, according to which, no amendment will
be allowed which will cause tr-5Q1T8N9U9T injustice
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opposite party. It is settled law that the
amendment can be allowed if it can be made
without injustice to the other side. But it is also a
cardinal rule that “there is no injustice if the other
side can be compensated by costs.”
Rule of interpretation - Provisions relating to
amendment of pleadings must be liberally
construed and with a view to promote the ends of
justice and not to defeat them.

In general, in following cases leave to

amendments can be REFUSED by the Court.

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a) Where it is not necessary to determine the real

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question in controversy,

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b) Introducing totally different, new and

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inconsistent case or changes the fundamental

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character of the suit or defence.
c) Where the effect of the proposed amendment is

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to take away from the other side a legal right

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accrued in his favour.
d)when it is not bonafide. tr-5Q 1T
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18. Failure to amend after Order.—If a party does

not amend accordingly within the time limited for
that purpose by the order, or if no time is thereby
limited then within fourteen days from the date of
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the order, he shall not be permitted
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the expiration of such limited time as aforesaid or
of such fourteen days, as the case may be, unless
the time is extended by the Court.
 Enlargement of time is provided u/s 148
148. Enlargement of time.—Where any period is
fixed or granted by the Court for the doing of any
act prescribed or allowed by this Code, the Court
may, in its discretion enlarge such period, not
exceeding thirty days in total, even though the
period originally fixed or granted may have expired.

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RETURN OF PLAINT
a. Introduction
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b. Meaning of jurisdiction and types

c. Object
d. O7R10
e. O7R10A
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g. When a suit is considered to be instituted-

ONGC V Modern Construction Comp
 Rejection of plaint
a. Introduction
b. Mention 2(2)Nature of Rejection of Plaint
c. 07R11
d. Part rejection allowed or not
e. O7R12
f. O7R13
g. Appealable or not
h. O7R11 Exhaustive or not Example –

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Radhakishen v. Wali Mohammed

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