Give a description about summoning process under CPC.
We are citizens of that very prestigious country where huge respect is given to human rights. In our country, there are 28 states and the culture, language, food etc. of every state is different but rights given all citizens are same. Our Indian Justice System follows the principles of natural justice and based upon the rule of ‘Audi Alteram Partem’ which means that every person has right to be heard.
According to Indian Justice System, if one party has right to file a suit against another party then latter party has also a right to be heard i.e., he has right to represent his facts to disprove the case of plaintiff. According to Indian Legal System, when a suit is filed by the plaintiff, the defendant has to be informed that the suit has been filed against you and that you are required to appear before the court or officer to defend it. The information which is given to the defendant by the court is technically known as “Summons”.
The term ‘Summons’ has not been defined in the Code of Civil Procedure, 1908, but according to the Concise Oxford English 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.
Order 5 and Order 16 of the Code of Civil Procedure, 1908, deals with the provisions of summons to defendant and summons to witnesses respectively. According to Order 5 Rule 1 of Code of Civil Procedure, 1908, if any suit is filed by the plaintiff against defendant, then it is necessary for the court to serve summons upon the defendant and ask him to appear and answer the claim of the plaintiff and submit written statement within a period of thirty days from the date of service of summons. According to this Rule, if the defendant is present in the court at the time of instituting the suit by the plaintiff, then in such a case, the court will not issue the summons. Moreover, according to the provisions of Order 5 of Code of Civil Procedure, 1908, if the summons has been served upon the defendant, then on the fixed date he can either appear in person or through the pleader who is authorized to give all the answers to the questions relating to the suit or through the pleader who is accompanied by another person who is able to answer to all the questions relating to the suit. But if it is mentioned in the summons that it is necessary for the defendant to appear in person, then in such a case, he has to appear in person.
According to the provisions of Code of Civil Procedure, 1908, the main object of this provision is to give defendant an opportunity to say against the prayer made by the plaintiff. If a suit is filed by the plaintiff against the defendant, then it is necessary for the court to serve summons upon the defendant. If the court does not serve summons and pass a decree then that decree does not bind upon the defendant.
According to the provisions of Code of Civil Procedure, 1908, if a suit is filed by the plaintiff, then after instituting the suit, the court serves summons upon the defendant either through the officer of the court or through registered post acknowledgment due or through courier service, fax, message, e- mail service or through any other permissible means of transmission. According to the provisions of this Order, if the summons has to be served in the jurisdiction of another court, then in such a case, summons is served through the officer of that court in whose jurisdiction, it is to be served.
In the leading case of Jagdish Singh v. Natthu Singh (SC 1992), the Hon’ble court held that when an acknowledgment purporting to be signed by the defendant or his agent is received by the court, or the defendant or his agent refused to take the delivery of summons when tendered to him, the court issuing the summons shall declare that the summons had been duly served on the defendant.
According to Order 5 Rule 9A of Code of Civil Procedure, 1908, if the plaintiff files an application for serving the summons upon the defendant personally then in such a case, the court may in addition to the service under Rule 9, allows the plaintiff to serve the summons upon defendant personally.
In the leading case of Salem Advocate Bar Assn. (2) v. Union of India (SC 2005), the Hon’ble court held that the court may permit service of summons by the plaintiff under Order 5 Rule 9A of Code of Civil Procedure, 1908, in addition to service of summons by the court.
According to the provisions of Code of Civil Procedure, 1908, whenever a suit is filed by the plaintiff then it is necessary to serve the summons upon the defendant but if the defendant is not available to receive the summons, then in such a case, it can be served upon authorized agent of the defendant. But if there is no authorized agent of defendant and the defendant himself is not found by the serving officer, then in such a case, the officer can affix the copy of summons on some conspicuous part of the house in which he voluntarily resides or carries on business or personally works for gain and if the officer affixes the summons, then he has to return the original copy of summons to the court with an endorsement that he has affixed the summons on some conspicuous part of the house. According to the provisions of Code of Civil Procedure, 1908, if the summons is served in this manner, then in such a case, it is discretion of court whether to pass an order that summons has been served or declared that summons should be served again.
In the leading case of Cohen v. Nursing Dass (Cal 1892), the Hon’ble court stated that, ‘it is true that you may go to a man’s house and not find him, but that is not attempting to find him. You should go to his house, make enquiries and if necessary, follow him. You should make enquiries to find out when he is likely to be at home, and go to the house at a time when he can be found. Before service like this can be affected, it must be shown that proper efforts have been made to find out when and where the defendant is likely to be found- not as seems to be done in this country, to go to his house in a perfunctory way, and because he has not been found there, to affix a copy of the summons on the outer door of his house’.