Institution of a Suit and Summons

Rule 1(2): a defendant may appear (a) in person, (b) by a pleader duly instructed and able to answer all material questions relating to the suit, or (c) by a pleader accompanied by some person able to answer all such questions.

Rule 1(3): every summons shall be signed by the Judge or an officer he appoints, and sealed with the seal of the Court.

Rule 2: every summons shall be accompanied by a copy of the plaint.

So three time periods sit close together and must be kept apart: thirty days from institution to issue the summons, thirty days from service to file the written statement, and ninety days from service as the outer limit for that written statement.

How a summons is served

The Code gives a ladder of methods, and the higher rungs are used only when the lower ones fail.

Personal service is the norm. Rule 12: service shall, wherever practicable, be made on the defendant in person, unless he has an agent empowered to accept service. Rule 15: where the defendant is absent from his residence at the time of service and there is no likelihood of his being found within a reasonable time, and he has no agent empowered to accept service, service may be made on any adult member of the family, whether male or female, residing with him. An explanation makes clear that a servant is not a member of the family for this purpose.

Rule 16: the person serving the summons shall require the person served to sign an acknowledgement.

Rule 17: where the defendant or his agent refuses to sign the acknowledgement, or cannot be found and there is no agent or 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 he ordinarily resides or carries on business or personally works for gain, and shall report the circumstances.

Rule 19: where the serving officer's return is not verified by affidavit, or where the summons was affixed under Rule 17, the Court shall examine the serving officer on oath, or cause him to be so examined, and may make such further inquiry as it thinks fit, before declaring the summons duly served.

Rule 20, substituted service. 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 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 gain, or in such other manner as the Court thinks fit.

Rule 20(1A): where the Court orders service by 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.

Rule 20(2), and this is the crucial line: service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally.

Rule 20(3): where service is substituted, the Court shall fix such time for the appearance of the defendant as the case may require.

Rule 9 allows service by the Court by post, courier, fax, electronic mail or other approved means, and Rule 9A allows the Court to permit the plaintiff to effect service in addition.

Section 28 and Rule 21 deal with a defendant residing outside the jurisdiction: the summons may be sent to the court within whose jurisdiction he resides, which proceeds as if it had issued the summons itself and returns it with the record of its proceedings.

A worked example

Lata presents her plaint on 1 March.

When must the summons issue? Under section 27, on a day not beyond thirty days from the institution of the suit, so by about 31 March. It must be signed by the Judge or his appointed officer, sealed, and accompanied by a copy of the plaint under Rule 2.

The summons requires what of the defendant? To appear and answer the claim, and to file his written statement within thirty days from the date of service, extendable for reasons recorded but not beyond ninety days from service.

The process server finds the defendant absent, and hands the summons to his adult daughter living with him. Good service under Rule 15, provided the defendant was absent, there was no likelihood of finding him within a reasonable time, and he had no agent empowered to accept service. Had the server handed it to a servant, it would not be good service, because the explanation to Rule 15 excludes servants from "member of the family".

The defendant refuses to sign. Rule 17 applies: the server affixes a copy on a conspicuous part of the house and reports the circumstances, and under Rule 19 the Court examines him on oath before holding the summons duly served.

The defendant is deliberately avoiding service. Rule 20 applies: the Court shall order substituted service, by affixing a copy at the Court-house and on the house where he last resided, or in such other manner as it thinks fit, which may include newspaper advertisement in a daily paper circulating in the locality where he was last known to reside.

He later says he never actually saw it. Rule 20(2) answers him: substituted service ordered by the Court is as effectual as personal service. That, and not any fiction about actual knowledge, is what allows the suit to proceed. Compare the second proviso to Order IX Rule 13, where an ex parte decree will not be set aside merely for an irregularity in service if the defendant in fact had notice and time. See [Appearance and Consequences of Non-appearance].

The defendant lives in another State. Section 28 and Rule 21: the summons may be sent to the court there, which serves it and returns it with the record of its proceedings.

What it does not mean

A plaint is not duly instituted merely by handing it in. Order IV Rule 1(3) requires compliance with Orders VI and VII.

A summons is not a formality. It is the instrument by which the Court acquires the defendant before it, and defective service is what produces ex parte decrees that are later set aside.

A servant is not a member of the family for the purposes of Rule 15.

Substituted service is not second-class service. Rule 20(2) makes it as effectual as personal service.

Newspaper advertisement is not at large. Rule 20(1A) requires a daily newspaper circulating in the locality where the defendant was last known to reside, carry on business or work for gain.

Quick revision

Section 26 and Order IV Rule 1: a suit is instituted by presenting a plaint, in duplicate, complying with Orders VI and VII; otherwise it is not duly instituted. Facts in the plaint are proved by affidavit. Order IV Rule 2: entered in the register of civil suits, numbered yearly in order of admission.

Section 27: the summons is issued on a day not beyond thirty days from institution. Order V Rule 1: it requires the defendant to appear, answer, and file his written statement within thirty days of service, extendable for reasons recorded to ninety days. No summons where the defendant appeared at presentation and admitted the claim. Signed by the Judge and sealed; accompanied by a copy of the plaint.

Service: personally wherever practicable, Rule 12; on an adult member of the family residing with him where he is absent, Rule 15, a servant not being a member of the family; acknowledgement signed, Rule 16; affixation on refusal or where he cannot be found, Rule 17; the serving officer examined on oath, Rule 19.

Substituted service, Rule 20: where the defendant is keeping out of the way to avoid service or service cannot be made in the ordinary way, by affixing at the Court-house and on his last known house, or otherwise as the Court thinks fit; newspaper advertisement must be in a daily paper circulating in the locality; and such service is as effectual as personal service.

Section 28 and Rule 21: a defendant in another State is served through the court there.

Test yourself

1. How is a suit instituted? By the presentation of a plaint, or in such other manner as may be prescribed, under section 26 and Order IV Rule 1. The plaint must be presented in duplicate and must comply with Orders VI and VII, failing which the suit is not deemed duly instituted.

2. Within what time must a summons be issued? On a day not beyond thirty days from the date of the institution of the suit, under section 27.

3. What must the summons require of the defendant? To appear and answer the claim and to file the written statement of his defence, if any, within thirty days from the date of service of the summons on him, extendable by the Court for reasons recorded in writing but not later than ninety days from service.

4. On whom may a summons be served if the defendant is absent? Under Order V Rule 15, on any adult member of his family, whether male or female, residing with him, where he is absent from his residence at the time of service, there is no likelihood of his being found within a reasonable time, and he has no agent empowered to accept service. A servant is not a member of the family for this purpose.

5. What is substituted service, and when is it ordered? Service ordered by the Court under Order V Rule 20 where it is satisfied 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. It is effected by affixing a copy in a conspicuous place in the Court-house and on a conspicuous part of the house where the defendant last resided, carried on business or worked for gain, or in such other manner as the Court thinks fit, including advertisement in a daily newspaper circulating in that locality.

6. What is the effect of substituted service? Under Order V Rule 20(2) it is as effectual as if service had been made on the defendant personally.

7. When is no summons issued at all? Under the first proviso to Order V Rule 1(1), where the defendant has appeared at the presentation of the plaint and admitted the plaintiff's claim.