ORDER V – Civil Procedure Code 1908

Civil Procedure Code 1908

 

 

ORDER V
ISSUE AND SERVICE OF SUMMONS

 

ORDER V
ISSUE AND SERVICE OF SUMMONS

 

Issue of Summons

 

1 Summons

 

1[(1) When a suit has been duly instituted, a summons may issued to the defendant to appear and answer the claim and to file the writ statement of his defence, if any, within thirty days from the date of service summons on that defendant;

 

Provided that no such summons shall be issued when a defendant has appeal at the presentation of the plaint and admitted the plaintiff’s claim :

 

Provided further that where the defendant fails to file the written statement wit! the said period of thirty days, he shall be allowed to file the same on such other days as may be specified by the Court for reasons to be recorded in writing, but whi shall not be later than ninety days from the date of service of summons.;]

 

(2) A defendant to whom a summons has been issued under sub-rule (1) m appear—

 

(a) in person, or

 

(b) by a pleader duly instructed and able to answer all material questions relati to the suit, or

 

(c) by a pleader accompanied by some person able to answer all such questiot

 

(3) Every such summons shall be signed by the Judge or such officer as appoints, and shall be sealed with the seal of the Court.

 

1. Sub-rule (1) was substituted by Act No. 46 of 1999, section 15 and now further substituted Act No. 22 of 2002, section 6 (w.e.f. 1-7-2002).

 

1[2. Copy of plaint annexted to summons

 

Every summons shall be accompanied by a copy of the plaint].

 

HIGH COURT AMENDMENTS

 

Bombay:

 

In order V, for rule 2, substitute the following rule, namely:- “2. Copy of plaint to accompany summons.- Every summons except in the case of one issued by the City Civil Court, shall be accompanied by a copy of the plaint with annexures or if so permitted, by concise statement.” (w.e.f. 1-10-1983)

 

1. Subs, by Act No. 46 of 1999, section 15 for rule 2 (w.e.f. 1-7-2002).

 

3. Court may order defendant or plaintiff to appear in person

 

(1) Where Court sees reason to require the personal appearance of the defendant, the summons shall order him to appear in person in Court on the day therein specific

 

(2) Where the Court sees reason to require the personal appearance of the plaintiff on the same day, it shall make an order for such appearance.

 

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 steamer communication or other established public conveyance for five-sixths ( the distance between the place where he resides and the place where the Court situate) less than two hundred miles distance from the Court-house.

 

HIGH COURT AMENDMENTS

 

Allahabad.-

 

In Order V, after rule
4, insert the following rule, namely:-

 

“4A. Except as otherwise provided, in every interlocutory proceeding and in every proceeding after decree in the trial Court, the Court may, either on the application of any party, or of its own motion, dispense with service upon any defendant who has not appeared or upon any defendant who has not filed a written statement.” (w.e.f. 24-7-1926.)

 

Bombay:-

 

In Order V, for rule 4, substitute the following rule, namely:-

 

“4. 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 a place less than 100 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 five hundred kilometres distance from the Court House.” (w.e.f. 1-10-1983)

 

5. Summons to be either to settle issues or for final disposal.

 

The Court shall determine, at the time, of issuing the summons, whether it shall be for the settlement of issues only, or for the final disposal of the suit; and the summons shall contain a direction accordingly :

 

Provided that, in every suit heard by a Court of Small Causes, the summons shall be for the final disposal of the suit.

 

HIGH COURT AMENDMENTS

 

Andhra Pradesh:-

Same as in Madras.

 

Bombay:-

In Order V, in rule 5 , after the words “whether it shall be for”, insert the words “filing of written statement and the “. (w.e.f. 1-10-1983).

 

Calcutta:-

In Order V, in rule 5, after the words “issues only”, insert the words “for the ascertainment whether the suit will be contested”.

 

[Vide Notification No. 1242-G, dated 25th August, 1927.]

 

Gauhati.-

Same as in Calcutta.

 

Karnataka.-

 

In Order V, for rule 5, substitute the following rule, namely:-

 

“5. The Court shall determine, at the time of issuing the summons, whether it shall be-

 

(a) for the settlement of issues only, or

 

(b) for the defendant to appear and state whether he contests to or does not contest the claim and directing him if he contests to receive directions as to the date on which he has to file his written statement, the date of trial and other matters, and if he does not contest for final disposal of the suit at once, or

 

(c) for the final disposal of the suit; and the summons shall contain a direction accordingly:

 

Provided that, in every suit heard by a Court of Small Causes, the summons shall be for final disposal of the suit,” (w.e.f. 30-3-1967)

 

Kerala.-

In Order V, for rule 5, substitute the following rule, namely:-

 

“5. Summons to be either (1) to ascertain owhether the suit is contested or not or (2) for the final disposal of the suit. The Court shall determine at the time of issuing the summons, whether it shall be-

 

(i) for the defendant to appear and state whether he contests, or does not contest the claim and directing him if he contests, to receive directions as to the date on which he has to
file his written statement, the date of trial and other matters and if he does not contest, for final disposal of the suit at once; or

 

(ii) for the final disposal of the suit at once; and the summons shall contain a direction accordingly:

 

Provided that in every non-appealable case the summons shall be for the final disposal of the suit.” (w.e.f. 9-6-1959)

 

Madras.-

 

In Order V for rule 5, substitute the following rule, namely:-

 

“5. Summons to be either (1} to settle issues, or (2) to ascertain whether the suit is contested or not or (3) for final disposal.-The Court shall determine, at the time of issuing the summons, whether it shall be-(1) for the settlement of issues only, or (2) for the defendant to appear and state whether he contests or does not contest the claim and directing him, if he contests, to receive directions as to the date on which he has to file his written statement, the date of trial and other matters, and if he does not contest, for final disposal of the suit at once; or (3) for the final disposal of the suit; and the summons shall contain a direction accordingly:

 

Provided that in every suit heard by the Court of Small Causes, the summons shall be for the final disposal of the suit.”

 

6. Fixing day for appearance of defendant

The day for the appearance of the defendant 1[under sub-rule (1) of the rule 1] shall be fixed with reference to the current business of the Court, the place of residence of the defendant and the time necessary for the service of the summons; and the day shall be so fixed as to allow the defendant sufficient time to enable him to appear and answer on such day.

 

1. Subs. by Act 46 of 1999, sec. 15, for “for the appearance of the defendant” (w.e.f. 1-7-2002).

 

7. Summons to order defendant to produce documents relied on by him—

 

The summons to appeal and answer shall order the defendant to produce 1[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.

 

HIGH COURT AMENDMENTS

 

Bombay.-

In Order V, for rule 7, substitute the following rule, namely:-

 

“7. Summons to order defendant to produce documents relied on by him.-

The summons to appear and answer and/or filing a written statement within a time specified therein shall order the defendant to produce all documents in his possession or power upon which he bases his defence, claim or set-off or counter claim, and shall further order mat where he relies on any other documents {whether in his possession or power or not) as evidence in support of his defence, claim for set-off or counter claim, he shall file a list of such documents.” (w.e.f. 1-11-1966)

 

Delhi.-

Same as in Punjab.

 

Haryana.-

Same as in Punjab.

 

Himachal Pradesh.-

Same as in Punjab.

 

Punjab.-

In Order V, for rule 7, substitute the following ride, namely;-

 

“7. Summons to order defendant to produce documents relied on by him.-

 

The summons to appear and answer shall order the defendant to produce all documents in his possession or power upon which he bases his defence or any claim for set-off and shall further order that where he relies on any other documents (whether in his possession or power or not) as evidence in support of his defence or claim for set-off, he shall enter such documents in a list to be added or annexed to the written statement.”

 

[Vide Notification No. 233-R/XI-Y-17, dated 24th July, 1936.]

 

1. Subs, by Act No. 46 of 1999, section 15 (w.e.f. 1-7-2002) for certain words.

 

8. On issue of summons for final disposal, defendant to be directed to produce his witnesses.

 

Where the summons is for the final disposal of the suit, it shall also direct the defendant to produce, on the day fixed for his appearance, all witnesses upon whose evidence he intends to relay in support of his case.

 

Service of Summons

 

1[9. Delivery of summons by Court

 

(1) Where the defendant resides within the jurisdiction of the Court in which the suit is instituted, or has an agent resident within that jurisdiction who is empowered to accept the service of the summons, the summons shall, unless the Court otherwise directs, 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.

 

(2) The proper officer may by an officer of a Court other than that in which the suit is instituted, and, where he is such an officer, the summons may be sent to him in such manner as the Court may direct.

 

(3) The services of summons may be made by delivering or transmitting 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 as are approved by the High Court or by the Court referred to in sub-rule (1) 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:

 

Provided that the service of summons under this sub-rule shall be made at the expenses of the plaintiff.

 

(4) Notwithstanding anything contained in sub-rule (1), where a defendant resides outside the jurisdiction of the Court in which the suit is instituted, and the Court directs that the service of summons on that defendant may be made by such mode of service of summons as is referred to in sub-rule (3) (except by registered post acknowledgment due), the provisions of rule 21 shall not apply.

 

(5) 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 containing the summons is received back by the Court with an endorsement purporting to have been made by a postal employee or by any person authorised by the courier service to the effect that the defendant or his agent had refused to take delivery of the postal articles containing the summons or had refused to accept the summons by any other means specified in sub-rule (3) when tendered or transmitted to him, the Court issuing the summons shall declare that the summons had been duly served on the defendant

 

Provided that where the summons was properly addressed, pre-paid and duly sent by registered post acknowledgment due, the declaration referred to in this sub-rule shall be made notwithstanding the fact that the acknowledgment having been lost or mislaid, or for any other reason, 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, as the case may be, shall prepare a panel of courier agencies for the purposes of sub-rule (1).

 

1. Rule 9 was substituted by Act No. 46 of 1999 section 15 and now further substituted by Act No.22 of 2002, section 6 (w.e.f. 1-7-2002).

 

9A. Summons given to the plaintiff for service

 

(1) The Court may, in addition to the service of summons under rule 9, on the application of the plaintiff for the issue of a summons for the appearance of the defendant, permit such plaintiff to effect service of such summons on such defendant and shall, in such a case, 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 thereof signed by the Judge or such officer of the Court as he may appoint in this behalf and sealed with the seal of the Court or by such mode of service as is referred to in sub-rule (3) of rule 9.

 

(3) The provisions of rules 16 and 18 shall apply to a summons personally served under this rule as if the person effecting service were a serving officer.

 

(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.]

 

10. Mode of service.

 

Service of the summons shall be made by delivering or tendering a copy thereof signed by the Judge or such officer as he appoints in this behalf, and sealed with the seal of the Court.

 

 

HIGH COURT AMENDMENTS

 

Karnataka.-

In Order V, in rule 10, insert the following proviso, namely:-

 

“Provided that, in any case the Court may either on its own motion or on the application of the plaintiff, either in the first instance or when summons last issued is returned unserved direct the service of summons by registered post prepaid for acknowledgment, instead of the mode of service laid down in this rule. The postal acknowledgment purporting to contain the signature of the defendant may be deemed to be prima facie proof of sufficient service of the summons on the defendant on the day on which it purports to have been signed by him. If the postal cover is returned unserved, an endorsement purporting to have been made thereon by the delivery peon or either an employee or officer of the Postal Department shall be prima facie evidence of the statements contain therein.” (w.e.f. 30-3-1967)

 

Patna.-

In Order V, in rule 10, insert the following proviso, namely:-

 

“Provided that in any case the Court may, on its own motion, or on the application of the plaintiff, send the summons to the defendant by post in addition to the mode of service laid in this rule. An acknowledgment purporting to be signed by the defendant or an endorsement by postal servant that the defendant refused to take delivery may be deemed by the Court issuing the summons to be prima facie proof of service.”

 

Rajasthan.-

In Order V, in rule 10, insert the following proviso, namely:-

“Provided that in any case the Court may in its discretion send the summons to the defendant by registered post in addition to the mode of service laid down in this rule. An acknowledgment purporting to be signed by the defendant or an endorsement by postal servant that the defendant refused to take the delivery may be deemed by the Court issuing the summons to be prima facie proof of service.” (w.e.f. 14-8-1954)

 

 

STATE
AMENDMENTS

 

Delhi.-

Same as in Punjab.

 

Haryana.-

Same as in Punjab.

 

Himachal Pradesh.-

Same as in Punjab.

 

Punjab.-

In Order V, in rule 10, insert the following proviso, namely:-

 

“Provided that in any case if the plaintiff so wishes the Court may serve the summons in the first instance by registered post (acknowledgment due) instead of in the mode of service laid down in this rule.”

 

[Vide Act 31 of 1966; secs. 29 and 32 (w.e.f. 1-11-1966).]

 

11. Service on several defendants.

 

Save as otherwise prescribed, where there are more defendants than one, service of the summons shall be made on each defendant.

 

12. Service to be on defendant on person when practicable, or on his agent—

 

Wherever it is practicable service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient.

 

13. Service on agent by whom defendant carries on business

 

(1) In a suit relating to any business or work against a person who does not reside within the local limits of the jurisdiction of the Court from which the summons is issued, service on any manager or agent, who, at the time of service, personally carries on such business or work for such person within such limits, shall be deemed good service.

 

(2) For the purpose of this rule the master of a ship shall be deemed to be the agent of the owner or chartered.

 

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.

 

1[15. Where service may be on an adult member of defendant’s family

 

Where in a suit the defendant is absent from his residence at the time when the service of summons is sought to be effected on his at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of the summons on his behalf 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 within the meaning of this rule.]

 

HIGH COURT AMENDMENT

 

Bombay.-

In Order V, for rule 15, substitute the following rule, namely:-

 

“15. Where service may be on male member of defendant’s family.-

 

When the defendant cannot for any reason be personally served and has no agent empowered to accept service of the summons on his behalf, service may be made on any adult male member of the family of the defendant who is residing with him.

 

Explanation.-A servant is not a member of the family within the meaning of this rule.” (w.e.f. 1-10-1983)

 

1. Subs. by Act No. 104 of 1976, sec. 55, for rule 15 (w.e.f. 1-2-1977).

 

16. Person served to sign acknowledgement

 

Where the serving officer delivers or tenders a copy of the summons to the defendant personally, or to an agent or other person on his behalf, he shall require the signature of the person to whom the copy is so delivered or tendered 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 or such other person as aforesaid refuses to sign the acknowledgement, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, 1[who is absent from his residence at the time when service is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time] and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can 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 or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did do, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed.

 

HIGH COURT AMENDMENTS

 

Calcutta.-

In Order V, for rule 17, substitute the following rule, namely:-

 

“17. Procedure when defendant refuses to accept service, or cannot be found:-

 

Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the defendant is absent from his residence at the time when service is sought to be effected on him thereat and there is no likelihood of his being found thereat within a reasonable time and there is no agent empowered to accept service of the summons on his behalf, nor any other person upon whom service can 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 or personally works for gain and shall then return the original to the Court from which it was issued with a report ordered thereon or annexed thereto stating that he has so affixed the copy, 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.” (w.e.f. 25-7-1928)

 

Gauhati.-

Same as in Calcutta.

 

Karnataka.-

In Order V, for rule 17, substitute the following rule, namely:-

 

“17. Procedure when defendant refuses to accept service, or cannot be found.-

 

Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the defendant is not present at the house in which he ordinarily resides or carries on business or personally works for gain at the time when service is sought to be effected on him thereat and there is no likelihood of his being found thereat within a reasonable time and there is no agent empowered to accept service of the summons on his behalf nor any other person upon whom service can be made under rule 15, the serving officer shall affix a copy of the summons on the outer door of or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto staring that he has so affixed the copy, 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 to affixed.” (w.e.f. 30-3-1967)

 

Madhya Pradesh.-

In Order V, in rule 17, insert the following proviso, namely:-

 

“Provided that where a special service has been issued and the defendant refuses to sign the acknowledgment it shall not be necessary to affix a copy as directed hereinafter.” (w.e.f. 16-9-1960)

 

1. Ins. by Act No. 104 of 1976, sec. 55 (w.e.f. 1-2-1977).

 

18. Endorsement of time and manner of service.

 

The serving officer shall, in all cases in which the summons has been served under rule 16, endorse or annex, or cause to be endorsed or annexed, on or to the original summons, a return stating the time when and the manner in which the summons was served, and the name and address of the person (if any) identifying the person served and witnessing the delivery or tender of the summons.

 

HIGH COURT AMENDMENTS

 

Andhra Pradesh.-

In Order V, after rule 18, insert the following rule, namely:-

 

“18A. Chief Ministerial Officer, District Courts, may be empowered to order issue of fresh Summons.-

 

A District Judge, within the meaning of the Madras Civil Courts Act, 1873, may delegate to the Chief Ministerial Officer of the District Court the power to order the issue of fresh summons to a defendant when the return on the previous summons is to the effect that the defendant was not served and the plaintiff does not object to the issue of fresh summons within seven days after the return has been notified on the notice board.”

 

Karnataka.-

In Order V, after rule 18, insert the following rule, namely:-

 

“18A.-The Presiding Officer of a Civil Court may delegate to the Chief Ministerial Officer of the Court, the power to order issue of fresh summons to a defendant when the return on the previous summons is to the effect that the defendant was not served and the plaintiff does not object to the issue of fresh summons within 7 days after he has been required to deposit the necessary process fee for the issue of fresh summons. If the plaintiff objects, the matter shall be placed before the Presiding Officer for his orders.” (w.e.f. 30-3-1967)

 

Madras.-

In Order V, for rule 18A which was inserted in 1929, substitute the following rule, namely:-

 

“18A.-A District Judge, a subordinate Judge and a District Munsif within the meaning of the Madras Civil Courts Act, 1873, and a City Civil Judge within the meaning of the Madras City Civil Court Act, 1892 may delegate to the Chief Ministerial Officer of their respective Courts the power to issue fresh summons to a defendant when (i) the return on the previous summons is to the effect that the defendant was not served and (ii) the plaintiff does not object to the issue of fresh summons within 7 days after the return has been notified on the Notice Board.”

 

[Vide Fort St Geo Gaz, dated 9th November, 1955.]

 

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 serving officer on oath, or cause him
to be so examined by another Court, touching his proceedings, and may make such further enquiry in the matter as it thinks fit; and shall either declare that the summons has been duly served or order such service as it thinks fit.

 

HIGH COURT AMENDMENTS

 

Calcutta.-

In Order V,-

 

(a) for rule 19, substitute the following rule, namely:-

 

“19. Where a summons is returned under rule 17, the Court shall, if the return under that rule has not been verified by the declaration of the serving officer, and may, if it has been so verified, examine the serving officer, on oath, or cause him to be so examined by another Court, touching his proceedings, and may make such further inquiry in the matter as it thinks fit, and shall either declare that the summons has been duly served or order such service as it thinks fit.” (w.e.f. 25-7-1928)

 

(b) after rule 19, insert the following rule, namely:-

 

“19A. A declaration made and subscribed by a serving officer shall be received as evidence of the facts as to the service or attempted service of the summons.”

 

[Vide Notification No.l0428-G, dated 25th July, 1928.]

 

Gauhati.-

Same as in Calcutta.

 

1[19A. Simultaneous issue of summons for service by post in addition to personal service]

 

1. Rule 19A was inserted by Act No. 104 of 1976, sec. 55 (w.e.f. 1-2-1977) now omitted by Act No. 46 of 1999, section 15 (w.e.f. 1-7-2002)..

 

20. Substituted service

 

(1) Where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, 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 (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit.

 

1(lA) 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.

 

(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.

 

HIGH COURT AMENDMENT

 

Punjab, Haryana and Chandigarh.-

 

In Order V, in rule 20, insert the following proviso, namely:-

“Provided that if service in the ordinary manner or by registered post is not effected for the first date of hearing the Court may direct substituted service, in such manner as the Court deem fit even if no application is made by or on behalf of the plaintiff for the purpose.”

 

[Vide Punjab Gazette, Pt. III (L.S.), p. 303, dated 11th April, 1975; Haryana Government Gazette, Pt. III (L.S.) p. 189, dated 25th March, 1975, Chandigarh Administration Gazette, Pt. II, p. 95, dated 1st May, 1975.]

 

1. Ins. by Act No. 104 of 1976, sec. 55 (w.e.f. 1-2-1977).

 

1[20A. Service of summons by post.

 

Rep. by the Code of Civil Procedure (Amendment) Act, 1976 (104 of 1976), s. 55 (w.e.f. 1-2-1977).]

 

1. Ins. by Act 66 of 1956, sec. 14 (w.e.f. 1-1-1957).

 

21. Service of summons where defendant resides within jurisdiction of another Court

 

A summons may sent by the Court by which it is issued, whether within or without the State, either by one of its officers 1[or by post or by such courier service as may be approved by the High Court, by fax message or by Electronic Mail service or by any other means as may be provided by the rules made by the High Court] to any Court (not being the High Court) having jurisdiction in the place where the defendant resides.

 

HIGH COURT AMENDMENTS

 

Allahabad.-

In order V, re-number rule 21 as sub-rule (1) thereof and insert the following sub-rule, namely:-

 

“(2) In lieu of, or in addition to, the procedure indicated in sub-rule (1), such summons may also be served by sending it by registered post addressed to the defendant at the place where he ordinarily resides or carries on business or works for gain. Unless the cover is returned undelivered by the post office on account of want of proper address or other similar reason the summons may be deemed to have been delivered to the addressee at the time when it should have reached him in the ordinary course.”

 

[Vide Notification No. 43vii-d-29, dated 1st June, 1967.]

 

Andhra Pradesh.-

In Order V, in rule 21, insert the following proviso, namely:-

 

“Provided that summons intended for service in the twin cities of Hyderabad and Secunderabad shall be sent to the City Civil Court, Hyderabad at Secunderabad.” (w.e.f. 23-3-1967)

 

Bombay.-

In Order V, after rule 21, insert the following rule, namely:-

 

“21A. Service of summons by prepaid post wherever defendant may be residing if plaintiff so desires.-

 

Notwithstanding anything in the foregoing rules and whether the defendant resides within the jurisdiction of the Court or not, {the Court may in addition to or in substitution for, any other mode of service), cause the summons to be addressed to the defendant at the place where he is residing, (or where he ordinarily carries on business) and sent to him by registered post pre-paid for acknowledgement, provided that at such place there is a regular daily postal service. An acknowledgement purporting to be signed by the defendant shall be deemed by the Court issuing the summons to be prima facie proof of service. In all other case the Court shall hold such enquiry as it thinks fit and declare the summons to have been duly served or order such further service as may in its opinion be necessary.” (w.e.f. 1-11-1966)

 

Gujarat.-

Same as in Bombay with the following modifications:-

 

(i) insert the words “The Court may” at the beginning.

 

(ii) omit the words within brackets.

 

Madhya Pradesh.-

In Order V, after rule 21, insert the following rule, namely:-

 

“21A. The Court may, notwithstanding anything in the foregoing rules, cause the summons of its own Court or of any other Court in India to be addressed to the defendant at the place where he ordinarily resides or carries on business and sent to him by registered post prepaid for acknowledgement provided that such place is a town or village in the Akola revenue taluq. An acknowledgement purporting to be signed by the defendant or an endorsement by a postal servant that the defendant refused service may be deemed by the Court issuing the summons to be prima facie proof of service.”

 

[Vide Notification Nos. 6634 & 6635, dated 23rd September, 1932.]

 

1. Subs, by Act No. 46 of 1999, section 15 (w.e.f. 1-7-2002) for “or by post”

 

22. Service within presidency-towns of summons issued by Courts outside—

 

Where a summons issued by any Court established beyond the limits of the towns of Calcutta, Madras 1[and Bombay] is to be served within any such limits, it shall be sent to the Court of Small Causes within whose jurisdiction it is to be served.

 

HIGH COURT AMENDMENTS

 

Bombay.-

In Order V, in rule 22, insert the following proviso, namely:-

 

“Provided that where any such summons is to be served within the limits of Greater Bombay, it may be addressed to the defendant at the place within such limits where he is residing (or where ordinarily carries on business) and may be sent to him by the Court by post registered for acknowledgement. An acknowledgement purporting to be signed by the defendant or an endorsement by a postal servant that the defendant refused service shall be deemed by the Court issuing the summons to be prima facie proof of service. In alt other cases the Court shall hold such enquiry as it thinks fit and either declare the summons to have been duly served or order such further service as may in its opinion be necessary.” (w.e.f. 1-11-1966)

 

Gujarat.-

Same as in Bombay with the following modifications.-

 

(i) omit the words within bracket; and

 

(ii) insert the words “purporting to be” between the words “endorsement” and “by a postal servant”.

 

Rajasthan.-

Same as in Bombay with the following modifications:-

 

For the words “Provided that where any such summons is to be served within the limits of Greater Bombay, it may be addressed to the defendant at the place within such limits where he is residing (or where ordinarily carries on business)”, substitute the words “Provided that any such summons may instead be addressed to the defendant at the place within such limits where he is residing”, (w.e.f. 25-7-1957)

 

1. Subs. by the A.O. 1937, for “Bombay and Rangoon”.

 

23. Duty of Court to which summons is sent

 

The Court to which a summons is sent under rule 21 or rule 22 shall, upon receipt thereof, 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.

 

24. Service on defendant in prison

 

Where the defendant is confined in a prison, the summons shall be delivered or sent 1[by post or by such courier service as may be approved by the High Court, by fax message or by Electronic Mail service or by any other means as may be provided by the rules made by the High Court] to the officer in charge of the prison for service on the defendant.

 

1. Subs, by Act No. 46 of 1999, section 15 (w.e.f. 1-7-2002) for certain words.

 

25. Service where defendant resides out of India and has no agent

 

Where the defendant resides out of 4[India] and has no agent in 4[India] empowered to accept service, the summons shall be addressed to the defendant at the place where he is residing and sent to him 1[by post or by such courier service as may be approved by the High Court, by fax message or by Electronic Mail service or by any other means as may be provided by the rules made by the High Court], if there is postal communication between such place and the place where the Court is situate :

 

5[Provided that where any such defendant 2[resides in Bangladesh or Pakistan] the summons, together with a copy thereof, may be sent for service on the defendant, to any Court in that country (not being the High Court) having jurisdiction in the place where the defendant resides:

 

Provided further that where any such defendant is a public officer 3[in Bangladesh or Pakistan (not belonging to the Bangladesh or, as the case may be, Pakistan military naval or air forces)] or is servant of a railway company or local authority in that country, the summons, together with a copy thereof, may be sent for service on the defendant, to such officer or authority in that country as the Central Government may, by notification in the Official Gazette, specify in this behalf.]

 

HIGH COURT AMENDMENTS

 

Allahabad.-

In Order V,-

 

(i) for rule 25, substitute the following rule, namely:-

 

“25. Where the defendant resides out of India but has an agent empowered to accept service of summons on his behalf residing in India but outside the jurisdiction of the Court, the summons, unless directed otherwise by the Court, may be addressed to such agent and sent to him by registered post if there is postal communication between such place and the place where the Court is sitting. Unless the cover is returned undelivered for want of proper address or any other sufficient reason, the summons may be deemed to have been delivered to the addressee at the time when it should have reached him in ordinary course.” (w.e.f. 29-3-1958)

 

(ii) after rule 25, insert the following rule, namely:-

 

“25A. Where the defendant resides out of India but has an agent empowered to accept service of summons on his behalf residing in India but outside the jurisdiction of the Court the summons, unless directed otherwise by the Court, may be addressed to such agent and sent to him by registered post if there is a post communication between such place and the place where the court is sitting. Unless the cover is returned undelivered for want of proper address or any other sufficient reasons the summon may be deemed to have been delivered to the addressee at the time when it should have reached him in ordinary course.” {w.e.f. 14-4-1962)

 

Andhra Pradesh.-

Same as in Madras, except-

 

Delete first proviso.

 

[Vide Notification No. ROC No 6842/51-B-l, dated 29th August, 1957.]

Bombay.-

 

In Order V, for rule 25, substitute the following rule, namely:-

 

“25 Service where defendant resides out of India and has no agent.-

 

Where the defendant resides out of India and has no agent in India empowered to accept service, the summons may be addressed to the defendant at the place where the Court is situated: Provided that where any such defendant resides in Pakistan, the summons, together with a copy thereof, may be sent for service on the defendant, to any Court in that country (not being the High Court) having jurisdiction in the place where the defendant resides:

 

Provided further that where any such defendant is a public officer in Pakistan (not belonging to the Pakistan military, naval or air force) or is a servant of railway company or local authority in that country, the summons together with a copy thereof, may be sent for service on the defendant, to such officer or authority in that country as the Central Government may, by notification in the Official Gazette, specify in that behalf.” (w.e.f. 30-3-1967)

 

Karnataka.-

In Order V, for rule 25, substitute the following rule, namely:-

 

“25. (1) Where the defendant resides outside the State of Mysore but within the territories of India, the Court may direct the proper officer within the meaning of rule 9 to cause the summons to be addressed to the defendant at the place where he ordinarily resides or carries on business, or works for gain and sent to him by registered post prepaid for acknowledgment. When it is so sent by registered post, the provisions of the proviso to rule 10 shall apply thereto.

 

(2) Where the defendant resides out of India and has no agent in India empowered to accept service, the summons may be addressed to the defendant at the place where he is residing and sent to him by post, if there is postal communication between such place and the place where the Court is situate:

 

Provided that, if by any arrangement between the Central Government and the Government of the foreign territory in which the defendant resides, the summons can be served by an officer of the Government of such territory, the summons may be sent to such officer in the same manner as by the said arrangement may have been agreed upon:

 

Provided further that, where any such defendant resides in Pakistan, the summons together with a copy thereof, may be sent for service on the defendant to any Court in that country (not being the High Court) having jurisdiction in the place where the defendant resides:

 

Provided further that, where any such defendant is a public officer in Pakistan (not belonging to Pakistan military, naval or air force) or is a servant of a railway company or local authority in that country, the summons, together with a copy thereof, may be sent for service on the defendant, to such officer or authority in that country as the Central Government may, by notification in the Official Gazette, specify in that behalf.” (w.e.f. 30-3-1967)

 

Kerala.-

In Order V, in rule 25,-

 

(i) before the existing provisos, insert proviso as in Madras.

 

(ii) in the last proviso for the word “company”, substitute the words “Administration”.

 

[Vide Notification No. B 1-331-2/58, dated 9th June, 1959.]

 

Madhya Pradesh.-

In Order V, in rule 25.-

 

(a) in para 1, for the word “shall” substitute the word “may”.

 

(b) after rule 25, insert the following rule, namely:-

 

“25A. Service where defendant resides in India.-

Where the defendant resides in India, the Court may, in addition to any other mode of service, send the summons by registered post to the defendant at the place where he is residing or carrying on business. An acknowledgement purporting to be signed by him, or an endorsement by a postal servant that the defendant refused service may be deemed by the Court issuing the summons to be prima facie proof of service.”

 

Madras.-

In Order V, in rule 25,-

 

(i) in para 1, for the words “sum
mons shall”, substitute the words “summons may”,

 

(ii) after para 1, insert the following proviso, namely:-

 

“Provided that, if, by any arrangement between the Government of the State in which the Court issuing summons is situate and the Government of the foreign territory in which the defendant resides, the summons can be served by an officer of the Government of such territory, the summons may be sent to such officer in such manner as by the said arrangement may have been agreed upon.”

 

(iii) omit existing first proviso, (w.e.f. 23-12-1964)

 

1. Subs, by Act No. 46 of 1999, section 15 (w.e.f. 1-7-2002) for “by post”.

 

2. Subs, by Act No. 104 of 1976, sec. 53, for “resides in Pakistan” (w.e.f. 1-2-1977).

 

3. Subs, by Act No. 104 of 1976, sec. 55, for “resides in Pakistan” (w.e.f. 1-2-1977).

 

4. Subs. by Act 2 of 1951, sec. 3 for “the States”.

 

5. Ins. by Act 19 of 1951, sec. 2.

 

 

1[26. Service in foreign territory through Political Agent or Court

Where—

 

(a) in the exercise of any foreign jurisdiction vested in the Central Government, a Political Agent has been appointed, or a Court has been established or continued, with power to serve a summons, issued by a Court under this Code, in any foreign territory in which the defendant actually and voluntarily resides, carries on business or personally works for gain, or

 

(b) the Central Government has, by notification in the Official Gazette, declared, in respect of any Court situate in any such territory and not established or continued in the exercise of any such jurisdiction as aforesaid, that service by such Court of any summons issued by a Court under this Code shall be deemed to be valid service, the summons 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 for the purpose of being served upon the defendant: and, if the Political Agent or Court returns the summons with an endorsement purporting to have been made by such Political Agent or by the Judge or other officer of the Court to the effect that the summons has been served on the defendant in the manner hereinbefore directed, such endorsement shall be deemed to be evidence of service.

 

1. Subs. by Act No. 104 of 1976, sec. 55, for rule 26 (w.e.f. 1-2-1977).

 

26A. Summonses to be sent to officer to foreign countries

 

Where the Central Government has, by notification in the Official Gazette, declared in respect of any foreign territory that summonses to be served on defendants actually and voluntarily residing or carrying on business or personally working for gain in that foreign territory may be sent to an officer of the Government of the foreign territory specified by the Central Government, the summonses may be sent to such officer, through the Ministry of the Government of India dealing with foreign affairs or in such other manner as may be specified by the Central Government; 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 officer or on servant of railway company or local authority.

 

Where the defendant is a public officer (not belonging to 1[the Indian] military, 2[naval or air] forces 3[***]) or is the servant of a railway company or local authority, the Court may, if it appears to it that the summons may be most conveniently so served, send it for service on the defendant to the head of the office in which he is employed together with a copy to be retained by the defendant.

 

HIGH COURT AMENDMENTS

 

Allahabad.-

In Order V, in rule 27, insert the following notes, namely:-

 

“Note 1.-A list of heads of offices to whom summons shall be sent for service on the servants of Railway Companies working in whole or in part in these States is given in Appendix 2 of the General Rules (Civil).

 

Note 2.-In every case where a Court sees fit to issue summons direct to any public servant other than a soldier under order 16, simultaneously with the issue of the summons, notice shall be sent to the head of office in which the person concerned is employed in order that arrangements may be made for the performance of the duties of such persons.

 

If the Court sees fit to issue a summons to a Kunungo or Patwari it shall inform the Collector of the district, and if to a Sub-Registrar it shall inform the District Registrar to whom the Sub-Registrar is subordinate.”

 

Andhra Pradesh.-

Same as in Madras.

 

Bombay.-

In Order V, in rule 27, after the words “send it”, insert the words “by registered post pre-paid for acknowledgement”, (w.e.f. 1-11-1966)

 

Karnataka.-

In Order V, in rule 27, after the words “send it”, insert the words “by registered post pre-paid for acknowledgement”, (w.e.f. 30-3-1967) ”

 

Kerala.-

In Order V, in rule 27,-

(i) for the words “railway company”, substitute the words “railway administration”,

 

(ii) after the words “send it”, insert the words “by registered post pre-paid for acknowledgement”.

 

[Vide Notification No. Bl-3312/58, dated 7th April, 1959.]

 

Madras.-

In Order V, in rule 27, after the words “send it”, insert the words “by registered post pre-paid for acknowledgement”.

 

[Vide Dis No. 209 of 1912.]

 

1. Subs. by the A.O. 1950, for “His Majesty’s”.

 

2. Subs. by Act 10 of 1927, sec. 2 and Sch. 1, for “or naval”.

 

3. The words “or His Majesty’s Indian Marine Service” omitted by Act 35 of 1934, sec. 2 and Sch.

 

28. Service on soldiers, sailors or airmen

 

Where the defendant is a soldier, 1[sailor] 2[or airman], the Court shall send the summons for service to his commanding officer together with a copy to be retained by the defendant.

 

HIGH COURT AMENDMENTS

 

Allahabad.-

In Order V, in rule 28,-

 

(a) renumber rule 28 as sub-rule (1) thereof;

 

(b) after sub-rule (1) as so renumbered, insert the following sub-rules, namely:-

 

“(2) Where the address of such commanding officer is not known, the Court may apply to the officer commanding the station in which the defendant was serving when the cause of action arose to supply such address, in the manner prescribed in sub-rule (4) of this rule.

 

(3) Where the defendant is an officer of the Indian military forces, wherever it is practicable service shall be made on the defendant in person.

 

(4) Where the defendant resides outside the jurisdiction of the Court in which the suit is instituted, or outside India, the Court may apply over the seal and signature of the Court to the officer commanding the station in which the defendant was residing when the cause of action arose, for the address of such defendant, and the officer commanding to whom such application is made shall supply the address of the defendant or all such information that it is in his power to give, as may lead to the discovery of his address.

 

(5) Where personal service is not practical, the Court shall issue the summons to the defendant at the address so supplied by registered post.”

 

[Vide Notification No. 1442/59, dated 5th March, 1927.]

 

Andhra Pradesh.-

Same as in Madras.

 

Bombay.-

In Order V, in rule 28, after the words “shall send”, insert “by registered post pre-paid for acknowledgement”, (w.e.f. 1-10-1983)

 

Karnataka.-

Same as in Madras.

 

Kerala.-

Same as in Madras.

 

[Vide Notification No. Bl-3312/58, dated 7th April, 1959.]

 

Madras.-

In Order V, in rule 28, after the words “shall send”, insert the words “by registered post pre-paid for acknowledgement”.

[Vide Notification No. 209 of 1912.]

 

1. Ins. by Act 35 of 1934, sec. 2 and Sch.

2. Ins. by Act 10 of 1927, sec. 2 and Sch. I.

 

29. Duty of person to whom summons is delivered or sent for service

(1) Where a summons is delivered or sent to any person for service under rule 24, rule 27 or rule 28, such person shall be bound to serve it if possible and to return it under his signature, with the written acknowledgement of the defendant, and such signature shall be deemed to be evidence of service.

 

(2) Where from any cause service is impossible, the summons shall be returned to the Court with a full statement of such cause and of the steps taken to procure service, and such statement shall be deemed to be evidence of non-service.

 

HIGH COURT AMENDMENTS

 

Allahabad.-

In Order V, in rule 28, in sub-rule (1), for the word and figures “rule 28”, substitute the word, bracket and figures “rule 29 (1)”. (w.e.f. 5-3-1927)

 

Andhra Pradesh.-

Same as in Madras.

 

Karnataka.-

Same as in Madras omitting the words “of India” after the words “Military, Naval or Air Force”, (w.e.f. 30-3-1967)

 

Kerala.-

Same as in Madras.

[Vide Notification No. Bl-3312/58, dated 7th April, 1959.]

 

Madras.-

In Order V, after rule 29, insert the following rule, namely:-

 

“29A. Notwithstanding anything contained in the foregoing rules, where the defendant is a public officer (not belonging to the Military, Naval or Air Force [of India]) sued in his official capacity, service of summons shall be made by sending a copy of the summons to the defendant by registered post pre-paid for acknowledgement together with the original summons, which the defendant shall sign and return to the Court which issued the summons.”

 

[Vide Dis No. 209 of 1912 as amended on 28th May, 1958.]

 

30. Substitution of letter for summons

 

(1) The Court may, notwithstanding anything hereinbefore contained, substitute for a summons a letter signed by the Judge or such officer as he may appoint in this behalf, where the defendant is, in the opinion of the Court, of a rank entitling him to such mark of consideration.

 

(2) A letter substituted under sub-rule (1) shall contain all the particulars required to be stated in a summons, and, subject to the provisions of sub-rule (3), shall be treated in all respects as a summons.

 

(3) A letter so substituted may be sent to the defendant by spot 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.

 

HIGH COURT AMENDMENTS

 

Allahabad.-

In Order V, after rule 30, insert the following rules, namely:-

 

“31. An application for the issue of a summons for a party or a witness shall be made in the form prescribed for the purpose. No other forms shall be received by the Court.

 

32. Ordinarily every process, except those that are to be served on Europeans, shall be written in the Court vernacular. But where a process is sent for execution to the Court of a district where a different language is in ordinary use, it shall be written in English and shall be accompanied by a letter in English requesting execution.

 

In case where the returns of service is in a language different from that of the district from which it is issued, it shall be accompanied by a English translation.”

 

[Vide Notification No. 1953/35 (a), dated 22nd May, 1915 and Notification No. 1903/35 (a)-1(6), dated 19th March, 1921.]

 

Andhra Pradesh.-

Same as in Madras.

 

Karnataka.-

In Order V, after rule 30, insert the following rules, namely:-

 

“31. (1) The Court may on the application of the plaintiff and on such terms as to security or otherwise as the Court thinks fit, dispense with service of summons on a defendant who is resident in a territory belonging to or occupied by a State at war with the Central Government:

 

Provided that an order dispensing with the service of summons shall not be made unless the Court is satisfied that the defendant is a resident in such territory and that the service of summons on him in the manner prescribed by this Code is not possible.

 

(2) The Court may before making any such order direct such publication of the application as it considers necessary in the circumstances.

 

(3) Where in any suit an order dispensing with the service of summons on a defendant is made under this rule and a decree or order is passed against him, the Court may on his application and on such terms as may be just set aside such decree or order and appoint a day for proceeding with the suit.

 

(4) The provisions of the first proviso to rule 13 of Order IX of this Code and the provisions of rule 14 of the said Order shall apply to an order setting aside the decree or order made under sub-rule (3).

 

(5) The application under sub-rule (3) shall be filed within one year from the date of cessation of hostilities with the said State.

 

(6) The provision of section 5 of the Limitation Act, 1963 shall apply to applica
tions under sub-rule (3).

 

(7) The provisions of this rule shall apply mutatis mutandis to a respondent in an appeal or a civil petition who is resident in such territory as is referred to in sub-rule (1).

 

32. Where any party in a suit is represented by a pleader, the plaint or the written statement as the case may be, shall give the address of the pleader within the local limits of the city, town or place where the Court is situate and the said address of the pleader for purposes of all notices and processes issued in the suit. All such notices and processes in the suit or in any interlocutory matter in the suit shall be sufficiently served if left by a party of pleader or by a person employed by the defendant or by an officer or employee of the Court at the said address for service on the party intended to be served.

 

33. Unless the Court otherwise directs, notice of an interlocutory application in the suit need not be served on a party who having been duly served with summons in the main suit has failed to appear and has been declared ex parte by the Court:

 

Provided that the Court shall direct such notice to be issued and served on any such party in applications for the amendment of any pleading in the suit, if the Court is of the opinion that such party may be interested in or affected by the proposed amendment.

 

34. The provisions of rules 32 and 33 shall also apply mutatis mutandis to appeals and revision petitions.”

 

Kerala.-

Same as in Madras with the exception that in sub-rule (1) for the word “India”, substitute the words “the Government”, (w.e.f. 9-6-1959)

 

Madras.-

In Order V, after rule 30, insert the following rule, namely:-

 

“31. (1) The Court may, on the application of the plaintiff and on such terms as to security or otherwise as the Court trunks fit, dispense with the service of summons on a defendant who is resident in territory belonging to or occupied by a State at war with India:

 

Provided that an order dispensing with service of summons shall not be made unless the court is satisfied that the defendant is resident in such territory and that service of summons on him in the mode prescribed by the Code is not possible.

 

(2) The Court may before making the said order direct such publication of the application as it considers necessary in the circumstances.

 

(3) Where in any suit an order dispensing with service of summons on a defendant is made under this rule and a decree or order is passed against him the Court may on his application and on such terms as may be just, set aside such decree or order and appoint a day for proceeding with the suit.

 

(4) The provisions of the first proviso to rule 13 of Order IX, and the provisions or rule 14 of the said order shall apply to an order setting aside a decree or order under sub-rule (3).

 

(5) The application under sub-rule (3) shall be filled within one year from the date of cessation of hostilities with the said State.

 

(6) The provisions of section 5 of the Limitation Act, 1908 shall apply to applications under sub-rule (3).

 

(7) The provisions of this rule shall apply mutatis mutandis to a respondent in an appeal or a civil Revision Petition who is resident in such territory as is referred to in sub-rule (1).”

 

[Vide R.O.C. No. 2108/44, dated 29th March, 1945 as amended on 28th May, 1958.]

 

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