Snippet #19

Saji Koduvath, Advocate, Kottayam.

PROVISIONS of the CPC as to Issuance of Summons IN A NUTSHELL

Sec.	Caption	Crux of Provisions in a nutshell
27.	Period within which defendant be required to appear and answer the claim of the suit – from date of the institution of the suit.	Not beyond thirty days.
28.	(1) Manner (Rules) of service of summons where defendant resides in another State	In such manner as may be prescribed by rules in that State
	(2) How to issue summons by the Court to which such summons is sent; and how to return the summons.	The Court to which such summons is sent, shall proceed as if it had been issued by such Court; and shall then return the summons to the Court of issue together with the record (if any) of its proceedings with regard thereto.
	(3) What language – Where the language of the summons sent for service is different.	Where the language of the summons sent for service is different, a translation of the record,— (a) in Hindi, where the language of the Court issuing the summons is Hindi, or (b) in Hindi or English where the language of such record is other than Hindi or English.
29.	Service of foreign summonses.	Summonses and other processes issued by (a) any Court established in any part of India to which this Code do not extend, or (b) any Court established by the Central Government outside India, or (c) any other Court outside India to which the Central Government has, by notification, declared the provisions of this section to apply,
	How summons sent to the Courts in the territories to which this Code extends is served?	Summons may be sent to the Courts in the territories to which this Code extends, and served as if they were summonses issued by such Courts.
30.	Power to order discovery and the like.	The Court may (a) make such orders as may be necessary in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence; (b) issue summonses whose attendance is required to give evidence or to produce documents or such other objects; (c) order any fact to be proved by affidavit.
31.	Procedure for issue of summons to witness.	The provisions in sections 27, 28 and 29 shall apply.
32.	How the Court compels the attendance of witnesses.	The Court may compel the attendance and for that purpose may (a) issue a warrant for his arrest; (b) attach and sell his property; (c) impose a fine upon him not exceeding five thousand rupees; (d) order him to furnish security for his appearance and in default commit him to the civil prison.

Order V: Issue and Service of Summons

Rule 1	(1) What is required in summons?	To appear and to file the written statement of his defence within thirty days from the date of service summons
	Where the defendant fails to file the written statement within thirty days – Effect?	Allowed to file the same on such other days specified by the Court for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons
	(2) Appearance of defendant – How?	(a) In person, or (b) by a pleader duly instructed, or (c) by a pleader accompanied by some person able to answer all such questions.
2.	Copy of plaint be accompanied.	Every summons shall be accompanied by a copy of the plaint.
3.	(1)Where Court sees reason to require the personal appearance – How to deal?	The summons shall Order him to appear in person.
4.	When to order appear-in-person?	Resident – within the local limits of the Court’s ordinary original jurisdiction, or at place less than fifty miles from the court-house or where there is railway or other established public conveyance – less than two hundred miles.
5.	Summons to be for…	Either to settle issues or for final disposal.
6.	How period fixed for appearance of defendant	Fixed with reference to the current business of the Court; and allow the defendant sufficient time to enable him to appear and answer on such day.
7.	What should be the Order as to produce documents in the summons	The summons shall Order the defendant to produce all documents or copies thereof specified in rule 1A of Order VIII in his possession or power upon which he intends to rely in support of his case.
8.	Where the summons is for the final disposal of the suit, what should be directed?	Direct the defendant to produce, all witnesses.
9.	How should be delivery of summons by Court (1) Where the defendant resides within the jurisdiction of the Court or has an agent within that jurisdiction:	The summons shall be delivered to the proper officer as are approved by the Court.
	(2) The proper officer may by an officer of another Court:	The summons may be sent to him.
	(3) How the services of summons may be made?	By delivering a copy thereof by registered post acknowledgement due addressed to the defendant or his agent empowered to accept the service, or by speed post or by such courier services or by any other means of transmission of documents (including fax message or electronic mail service) provided by the rules made by the High Court
	At whose expenses the service of summons ne made?	The plaintiff’s.
	(4) where a defendant resides outside the jurisdiction of the Court	Where a defendant resides outside the jurisdiction of the Court, and the Court directs that the service of summons by such mode in sub-rule (3) (except by registered post acknowledgment due), the provisions of rule 21 shall not apply. (Rule 21 applies to service of summons where defendant resides within jurisdiction of another Court – within or without the State. Under this rule summons is sent by its officers or by post to any Court having jurisdiction in the place where the defendant resides.)
	(5) When an acknowledgment is received back to the effect that the defendant or his agent had refused to to accept the summons	The Court issuing the summons shall declare that the summons had been duly served on the defendant
	Where the summons was properly addressed, and acknowledgment has not been received by the Court	The declaration referred to in this sub-rule shall be made notwithstanding the fact that acknowledgment, has not been received by the Court within thirty days from the date of issue of summons.
9A.	(1) When summons given to the plaintiff for service?	In addition to the service under rule 9 on the application of the plaintiff,
	(2) How the service shall be effected?	By delivering to the defendant a copy thereof signed by the Judge or such officer or by such mode of service as is referred to in sub-rule (3) of rule 9.
	(3) What all provisions apply?	The provisions of rules 16 and 18 shall apply to a summons served under this rule as if the person effecting service were a serving officer.
	(4) When re-issue summons to be served by the Court	on the application of the party 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.
10.	Mode of service.	By delivering or tendering a copy thereof signed by the Judge or such officer and sealed with the seal of the Court.
11.	where there are more defendants than one	Service of the summons shall be made on each defendant.
12.	Service on defendant, or on his agent.	Wherever it is practicable service shall be made on the defendant or an agent.
13.	(1) Service on agent by whom defendant carries on business.	In a suit relating to any business or work, service on any manager or agent shall be good service.
14.	Service on agent in charge for immovable property.	Where the defendant has no agent empowered 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 there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered – service may be made on any adult member of the family, whether male or female, who is residing with him. Explanation- A servant is not a member of the family.
16.	Person served to sign acknowledgement.	Where the serving officer delivers a copy of the summons – he shall require the signature of the person to whom the copy is so delivered to an acknowledgement of service endorsed on the original summons.
17.	Procedure when defendant refuses to accept service, or cannot be found.	Where the defendant or his agent refuses to sign or where serving officer cannot find defendant, and no agent to accept service, nor any other person – service 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 and shall then return the original to the Court with a report and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed.
18.	Endorsement of time and manner of service.	The serving officer shall, where the summons has been served under rule 16, endorse on the original summons, a return stating time and manner summons was served, and the name and address of the person (if any) identifying the person served and witnessing the delivery of the summons.
19.	Examination of serving officer.	Where summons is returned under rule 17, the Court shall, if the return is not verified by the affidavit examine the serving officer on oath, touching his proceedings, and may make such further enquiry; and shall either declare summons duly served or order such service as it thinks fit.
19A.	(1) Simultaneous issue of summons for service by post in addition to personal service.	Court shall, in addition to, and simultaneously with, issue of summons for service in rules 9 to 19 also direct summons to be served by registered post, or his agent Provided that nothing in this sub-rule shall require the Court to issue a summons by registered post, where, in the circumstances of the case, the Court considers it unnecessary.
	(2) When an acknowledgment is received back to the effect that the defendant or his agent had refused to to accept the summons	The Court issuing the summons shall declare that the summons had been duly served on the defendant
	Where the summons was properly addressed, and acknowledgment has not been received by the Court	The declaration referred to in this sub-rule shall be made notwithstanding the fact that acknowledgment, has not been received by the Court within thirty days from the date of issue of summons.
20.	Substituted service.	(1) Where the Court is satisfied there is reason to believe that the defendant is avoiding service, Court shall order the summons to be served by affixing in the Court-house, and also upon conspicuous part of the house in which the defendant is known to have last resided or in such other manner as the Court thinks fit.
	(1A) advertisement in a newspaper	Where the Court orders advertisement in a newspaper, it shall be a daily newspaper circulating in the locality the defendant resided,
	(2) Effect of substituted service-	Shall be as effectual as if it had been made on the defendant personally.
	(3) Where service substituted, time for appearance to be fixed-	Where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require.
21.	Service of summons where defendant resides within jurisdiction of another Court.	Summons may sent by the Court within or without the State, either by one of its officers or by post to any Court having jurisdiction in the place where the defendant resides.
22.	Service of summons within presidency towns – of Calcutta, Madras and Bombay -issued by Courts outside.	It shall be sent to the Court of Small Causes within whose jurisdiction it is to be served.
23.	Duty of Court to which summons is sent.	Proceed as if it had been issued by such Court and shall then return the summons to the Court of issue, together with the record of its proceedings.
24.	Service on defendant in prison.	Shall be delivered or sent by post to the officer in charge of the prison.
25.	Service where defendant resides out of India and has no agent.	Shall be addressed to the defendant at the place where he is residing and sent to him by post.
	Bangladesh or Pakistan	May be sent to any Court in that country (not being the High Court) having jurisdiction in the place where the defendant resides:
	where any such defendant is a public officer in Bangladesh or Pakistan	May be sent for service on the defendant, to such officer or authority in that country as the Central Government may, by notification specify.
26.	Service in foreign territory through Political Agent or Court.	May be sent to such Political Agent or Court, by post, or otherwise, or if so directed by the Central Government, through the Ministry of that Government dealing with foreign affairs, or in such other manner as may be specified by the Central Government
26A.	Summonses to be sent to officer to foreign countries. Where Central Government has declared summonses may be sent to an officer of the Government	may be sent to such officer, through the Ministry of the Government of India dealing with foreign affairs; and if such officer returns any such summons with an endorsement purporting to have been made by him that the summons has been served on the defendant, such endorsement shall be deemed to be evidence of service.
27.	Service on civil public or on servant of railway officer or on servant of railway company or local authority.	send it for service to the head of the office in which he is employed together with a copy to be retained by the defendant.
28.	Service on soldiers, sailors or airmen.	Court shall send the summons for service to his commanding officer.
29.	Duty of person to whom summons is delivered or sent for service,under rule 24, rule 27 or rule 28	(1) such person shall be bound to serve it if possible and to return it under his signature, with the written acknowledgement of the defendant.
	(2) Where from any cause service is impossible	summons shall be returned with a full statement of such cause and of the steps taken to procure service.
30.	Substitution of letter for summons.	(1) The Court may, substitute for a summons a letter signed by the Judge or such officer, where the defendant is of a rank entitling him to such mark of consideration.
		(3) A letter so substituted may be sent to the defendant by post or by a special messenger selected by the Court, or in any other manner which the Court thinks fit; and where the defendant has an agent empowered to accept service, the letter may be delivered or sent to such agent.

Order 16 : SUMMONING AND ATTENDANCE OF WITNESSES

1.	List of witnesses and summons to witnesses	(1) On or before such date as the Court may appoint, and not later than fifteen days after the issues are settled, the parties shall present in Court a list of witnesses and obtain summonses to such person .
		(2) A party desirous of obtaining any summons shall file an application stating the purpose for which the witness is proposed to be summoned.
		(3) The Court may permit a party to call any witness, if shows sufficient cause for the omissionin the said list.
		(4)Summonses may be obtained by the parties on an application to the Court within five days of presenting the list of witnesses under sub-rule (1).
1A.	Production of witnesses without summons	A party to the suit may, without applying for summons bring any witness to give evidence or to produce documents.
2.	Expenses of witnesses to be paid into Court on applying for summons	(1) The party applying for a summons shall, before the summons is granted and within not be later than seven days from the date of making application under sub-rule (4) of rule 1, pay into Court such a sum of money as appears to the Court to be sufficient to defray the travelling and other expenses of the person summoned.
	Payment in the case of an expert	(2) In determining the amount the Court may, in the case of an expert, allow reasonable remuneration for the time occupied both in giving evidence and in performing any work of an expert character necessary for the case.
	regard shall be had, to a any rules made in that behalf	(3) Where the Court is subordinate to High Court, regard shall be had, in fixing the scale of such expenses to a any rules made in that behalf.
	Payment	(4) Expenses to be directly paid to witnesses Where the summons is served directly by the party on a witness, the expenses referred to in sub-rule (1) shall be paid to the witness by the party or his agent.
3.	Tender of expenses to witness	The sum so paid into Court shall be tendered at the time of serving the summons.
4.	Procedure where insufficient sum paid in	(1) Where it appears to the Court that the sum paid into Court is not sufficient , the Court may direct such further sum, and, in case of default, may Order such sum to be levied by attachment and sale of the movable property of the party obtaining the summons; or the Court may discharge the person summoned without requiring him to give evidence; or may both Order such levy and discharge such person as aforesaid.
	Expenses of witnesses detained more than one day	(2) Expenses of witnesses detained more than one day Where it is necessary to detain the person summoned for a longer period than one day, the Court may, from time to time, Order the party at whose instance he was summoned to pay into Court such sum as is sufficient to defray the expenses of his detention for such further period, and, in default of such deposit being made, may Order such sum to be levied by attachment and sale of the movable property of such party; or the Court may discharge the person summoned without requiring him to give evidence, or may other Order such levy and discharge such person as aforesaid.
5.	Time, place and purpose of attendance to be specified in summons	Every summons for the attendance of a person to give evidence or to produce a document shall specify the time and place at which he is required to attend, and also whether his attendance is required for the purpose of giving evidence or to produce a document, or for both purposes; and any particular document, which the person summoned is called on to produce, shall be described in the summons with reasonable accuracy.
6.	Summons to produce document	Any person may be summoned to produce a document, without being summoned to give evidence, and any person summoned merely to produce a document shall be deemed to have complied with the summons if he causes such document to be produced instead of attending personally to produce the same. See Blog: Notice to Produce Documents in Civil Cases
7.	Power to require persons present in Court to give evidence or produce document	Any person present in Court may be required by the Court to give evidence or to produce any document then and there in his possession or power.
8.	Summons how served	Every summons under this Order, not being a summons delivered to a party for service under rule 7A, shall be served as nearly as may be in the same manner as a summons to a defendant and the rules in Order V as to proof of service shall apply in the case of all summonses served under this rule.

Read in this Cluster (Click on the Topic):

Book No. 1. Handbook of a Civil Lawyer

Book No. 2: A Handbook on Constitutional Issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

Law on Summons to Defendants and Witnesses

Created: 07 Jul 2024 at 23:29

Law on Summons to Defendants and Witnesses

Order II, Rule 2 CPC – Not to Vex Defendants Twice for the Same Cause of Action

Pictorial Testimony Theory and Silent Witnesses Theory in Law of Evidence

Law on Summons to Defendants and Witnesses

Created: 07 Jul 2024 at 23:29

Share this:

Related

Law on Summons to Defendants and Witnesses

Order II, Rule 2 CPC – Not to Vex Defendants Twice for the Same Cause of Action

Pictorial Testimony Theory and Silent Witnesses Theory in Law of Evidence