MOHD YUSUF

17BALLB023
GK-3467
TUTORIAL TEST
CIVIL PROCEDURE CODE-I
09/05/2020

SERVICE OF SUMMONS UNDER CPC

INTRODUCTION
A summons is a legal document that is issued by a Court on a person involved in a legal proceeding.
When a legal action is taken against a person or when any person is required to appear in the court
as a witness in a court proceedings, to call upon such person and ensure his presence on the given
date of the proceedings, summons is served. If the summons is not duly served then no action can
be taken against the defendant. If defendant fails to attend court after receiving summons, he will
be ex-parte by the Court. Section 27 and Order V of the Code of Civil Procedure, 1908 (In short
‘CPC’) deal with ‘Service of Summons’ on the defendant/Respondent. Under the Code of Civil
Procedure, 1908, there are different modes of effecting service of summons on defendant. It is
needless to say that non-service of summons and notices in a civil suit is a great hurdle for speedy
disposal of a civil suit. There are several reasons for non-service of summons to defendant in time.
Furnishing correct address of the defendant in the plaint would be helpful to avoid delay in service
of summons. Recently, the Courts have expanded the scope of service of summons through
information technology. We often across with the situations that in many civil cases, defendant
takes plea that summons was not duly served on him. Similarly, in general, court often use the
method of substitute of service of summons by way of paper publication. In most of the cases, we
come across the situations where the defendant argues that the newspaper in which his name was
published in widely circulated newspaper and therefore he could not see it. We know the difficult
to cause service of summons to defendant when he resides in abroad. If a spouse gets divorce
without valid service of notice in a divorce case, the mental agony of the other spouse cannot be
explained in terms and so also the agony of defendant in a money suit, when the plaintiff obtains
exparte decree without valid service of notice. I, therefore, opine that it is very essential to know

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the procedure as to valid service of summons/notice. There are many other situations we come
across in regular course of time as to effective service of summons in civil cases. I made a small
attempt to furnish some valuable rulings in this article on this topic of ‘service of summons’ and
that I hope that this article may be helpful to lawyers and judicial officers while dealing with
service of summons in a civil suit. I quoted several citations in this article on different facets of
service of summons.

It is the fundamental principle from the latin maxim actus curiae neminem gravabit that act of
court shall prejudice no man unless sanctioned by law. But, it is well-settled law that even in ex
parte cases, Court has to pass a reasoned order by discussing the pleadings and evidence of the
party. In our Court proceedings, we regularly see exparte decrees. Before ordering substitute
service of summons or notice, the Court must satisfy the requirements as per law. If any decree is
obtained by fraud, such decree would be null and void. Though substituted service is a sufficient
service in ordinary circumstances, Courts shall be careful to see that conditions enumerated in
Order 5 Rule 20(1), CPC have been strictly complied with before ordering substituted service. As
to this point in our Hon’ble Division Bench in Maganti Krishna Durga Vs. Maganti Anil Kumar,
it was observed that Where the husband obtains a decree of divorce ex parte by practising fraud,
husband cannot take advantage of Section 15 of Hindu Marriage Act and remarry. Similarly, ex
parte decree against defendant has to be set aside, if he satisfies Court that summons had not been
duly served or he was prevented by sufficient cause from appearing before Court when suit was
called on for hearing However, Court shall not set aside said ex parte decree on mere irregularity
in service of summons or in a case where defendant had notice of date of hearing and sufficient
time to appear in Court Not permissible for Court to allow said application in utter disregard of
terms and conditions incorporated in second proviso to Rule 13 of Order IX CPC. Before setting
aside an exparte decree, it is important to note the limitation factor to set aside ex parte decree. A
distinction be maintained in regard to computation of period of limitation between cases where
summons was served on defendant and appearance entered in suit and set ex parte and cases where
summons was not served at all and defendant was not aware of the ex parte decree. This issue was
succinctly answered in K. Surekha Reddy v. V. Chandraiah.

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SERVICE OF SUMMONS AND NOTICES THROUGH ELECTRONIC MEANS
In this computer era, usage of mobiles and computers has been increasing day by day. So many
Apps are being introduced day by day and social media is now become more powerful tool even
for common people. Within fraction of seconds, messages are being communicated among the
people because of recent computer technology. Sending messages by E-mail, Whatsapp, Telegram,
Slack etc., became easy task to all age groups. The concept of E-courts has been praying vital role
in judiciary and is making efforts for computerization of all courts in India. Now, the Hon’ble
Supreme Court expanded the scope of electronic media in judiciary. But, information technology
and notices is not being properly used by all the courts in service of summons because the court
system does not have the facility to effect the service through electronic mode. Provisions under
Part X of the Code of Civil Procedure, 1908 (5 of 1908) and Order V, Rule 9 of the Code of Civil
Procedure, 1908 enables the High Court to make rule and regulations in this regard. The Delhi
High Court has also made rules regarding the service of legal notices through email by the virtue
of above legal provisions and other provisions which enables it in this regard.

SUMMONS THROUGH E-MAIL

The Hon’ble Supreme Court of India, in Central Electricity Regulatory Commission v National
Hydroelectric Power Corporation Ltd., permitted the service of Notice by email along with the
ordinary mode of serving notice. In Ksl and Industries Ltd., v Mannalal Khandelwal and the State
of Maharashtra, (Criminal Writ Petition No. 1228 of 2004), The Hon’ble Mumbai High Court held
that to avoid the delay in legal proceedings because of unserved summons must be interrupted by
using all the practical methods and services including emails. Summons through e-mail is
permitted in Indian Bank Association & Ors v Union Of India & Anr.

PRESUMPTIONS AS TO SERVICE OF SUMMONS

Order 5, proviso to Sub-rule (2) of Rule 19A of C.P.C. provides that where the summons are
properly addressed, prepaid and duly sent by registered post with acknowledgement due,
notwithstanding the fact that the acknowledgement having been lost or mislaid, or for any other
reason, has not been received by the Court within thirty days from the date of the issue of the
summons, the Court shall presume that notice is duly served. Further, Second 27 of the General
Clauses Act, 1897 provides similar provision. The presumptions are rebuttable. It is always open

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to the defendants to rebut the presumption by leading convincing and cogent evidence. It is settled
law that once the letter is sent through registered post at correct address and AD card is received
back bearing some signatures, the presumption is drawn about its service upon the addressee unless
the same is rebutted. It is held by Hon’ble High Court of Delhi in Smt. Bhavneshwari Devi v
Kalyan Singh, that presumption of service arises in law if the acknowledgement card of registered
post is received back bearing signatures of someone. The Hon’ble Supreme Court has gone even
a step further and held that even if the acknowledgement card is lost or does not come back for
any reason, the presumption of service could still be drawn. In Salem Advocate Bar Association,
Tamil Nadu v Union of India, the court observed that as per Amendment Act of 1999, defendant
has to file written statement within thirty days from date of service of summons on him Rigor of
this provision was reduced by Amendment Act of 2002 enabling Court to extend time for filing
written statement. Extension can be maximum for 90 days Provision of Order VII Rule 1 providing
for upper limit of 90 days, held, is directory.

When the exact date of service of summons is not with the Court:- In Mirza Liyaquath Hussain v.
G. Srinivas Goud, it was observed that Prescribed period of 90 days be computed from the date of
service of suit summons and not from the date of knowledge of filing suit by defendant. Rejection
to receive written statement on the ground that it was filed beyond 90 days from the date of receipt
of notice in an interlocutory application filed under Order 38 Rule 5, CPC and his participation
therein and from the date of issuance of suit summons is held to be erroneous. Date of service of
suit summons is the date for computing 90 days period. Exact date of service of summons is not
before Court. Even if first date of hearing is taken as starting point, written statement was filed
within time. Petition filed seeking permission to file written statement is allowed.

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