Order 5 of Civil Procedure is based on this principle that no one should be condemned unheard when the suit is instituted against the defendant the court is bound to serve the summons to defendant for appearing before the court. In fact, CPC provided procedural rules to aminister trial of civil suit from its institution till its conclusion. After filing of suit, it becomes necessary for that party, which files suit, to serve summon son opponent party. Order 5 prescribes various modes of service of summons to defendant.
Relevant provisions regarding the topic of service of summons to defendant Section 27 and order 5 and 1 and 10 to 20 of CPC.
(i) Order 16 of C.P.C
(ii) Section 64 to 74 of Code of Criminal Procedure
(iii) Section 27 of General Clauses Act, 1897
Meaning of Summons
Summons may be defined as under “A written notification issued by a civil court requiring that one must appear before the court in prescribed manner”.
Various Modes of Summons
Under Civil Procedure Code, following are modes of service of summon have been described;
1. Postal Service
Under order 5 Rule 10-A of CPC, a copy of summons would be sent by registered post.
A postal service is deemed to by effect;
(i) When defendant sign acknowledgement, or
(ii) Postal employee endorses, that defendant refuses to take delivery.
2. Personal Service of Summons
Wherever it is practicable, service of summons should be made on defendant in person. This is also called direct service so far as practicable service should be made on the defendant in person. Service is made by delivering a copy of the summon to the person concerned or to his agent and by obtaining his signature on the other copy.
(i) Service upon person of defendant
Order 5 Rule 10, when summons is served on person of defendant, it should be signed by judge or officer of court and should be sealed with seal of court.
(ii) Service on agent of defendant
Summons may be served upon the agent of defendant
(ii-a) Empowered agent
The personal service made to the agent of the defendant, empowered to accept service shall be sufficient.
(ii-b) Business of Defendant
If some person does not reside within jurisdiction of court, but carries on some business or works thorough manager or agent, and suit is filed against this person and in relation to this business or work, summons can be served on such manager or agent.
(iii-c) Immoveable Property of Defendant
When suit is filed about immoveable property, and summons cannot be served on defendant or defendant has not empowered any agent to accept service of summons, summons can be served on that agent of defendant, who is in charge of such immoveable property.
(iii-d) Service on male member of Defendant’s Family
If defendant cannot be found or defendant has not empowered any agent to accept service of summons, summons can be served on any of adult members of defendant’s family. However, summons can only be served on that member, who resides with defendant. Here servant is not considered as member of defendant’s family.
3. Service by Affixation
When personal service is failed to serve to the summons than summons may be served by service by affixation.
(i) Condition Required
Service by affixation can be made when following conditions are fulfilled.
(a) Refusal by defendant to sign acknowledgement
Service by affixation may be served, where the defendant or his agent or such other person to whom the summons may be served refuses to sign the acknowledgement.
(b) Failure of serving officer to find defendant
Where the serving officer after using all due and reasonable diligence cannot find the defendant, than service by affixation can be made due and reasonable diligence is depend on the facts of each case.
(ii) Manner of Affixation
The copy of summons should be actually affixed on the outer door or some conspicuous part of the house where defendant resides, carries on business or personally works for gain.
4. Affixation of Copy of Summons
If personal service of summons is not possible, service of summons can be made through affixation of a copy of summons on outer door or some other eminent part of that house in which defendant ordinarily resides or carries on business or works for gain.
(i) When Substituted Service be made
It can be made only in the following cases.
(a) When defendant is keeping out of the way for the purpose of avoiding summons, or
(b) Any other reason for which service of summons is not possible in ordinary way.
(ii) Manner of Substituted Service
Substituted service may be effective by the following ways;
(a) Substituted service can be made by affixing copy of summons at some conspicuous part of that house in which defendant is known to have last resided or carried on business or personally worked for gain.
(b) Substituted service can be made through any electronic device of communication like telegram, telephone, phonogram, telex, radio or television.
(c) Substituted service can be made through urgent mail service or public courier services.
(d) Substituted service can be made through beat of drum in that locality where defendant resides.
(e) Substituted service can be made through publication in press.
(f) Substituted service can be made through any other manner or mode, which court thinks fit.
The substituted service shall be as effective, as if it had been made on the defendant personally and the court may pass an ex-parte decree, on non appearance of defendant.
(iv) Time for defendant’s Appearance
In case of substituted service, it is necessary that court should fix time of appearance of defendant and such time should not exceed fifteen days.
To conclude, it can be stated that audi alterem partem is one of fundamental principles of natural justice. Audi alterem partern means “hear the other side”. Tohear the other side, it is important for court to call defendant after initiation of suit. For calling of defendant, Civil Procedure Code has provided different modes of service of summons.