“Where a suit has been duly instituted a summons may be issued to the defendant to appear and answer claim and may be served in manner described (on such day not beyond thirty days from the date of the institution of the suit).”
Summons is a document from the office of a court of law calling upon the person to whom it is issued to be present before a Judge or Officer of the Court on the day mentioned in it.
Where a suit has been duly instituted by filing a plaint the first duty of the court is to issue a summons calling the defendants to appear and answer the claim on the specified date. The defendant can thus after the receipt of the same be present either in person or by pleader who can answer all the material question.
Case Study- Smt. Jaggi v. Bhagwan Das (1969 All. LJ 1144), it was observed by Hon’ble Allahabad High Court that the summon has to mention the date of hearing and not the date for filing written statement as presence of the person is given importance that latter follow up actions of him.
A summons mentioning a date for appearance which is holiday is not proper a summons.
Case Study- Nanda Dayaram v. Rajaram (AIR 1964 MP 261), the court upheld that a summons mentioning a date for appearance which is holiday is not proper a summons. And it was further stated that in such case no law or procedure requires the defendant to appear on the next following day.
It is pertinent to note that no summons is issued when the defendant appears and admits the claim.
Illustration- ‘A’ has filed a suit against ‘B’, and during the presentation of suit in the court if ‘B’ is present and is accepting all the claims raised by ‘A’. Then in such cases the court does not issue any summons against ‘B’.
Essentials of Summons:
Every summons shall –
- Intimate to the defendant of the date of hearing and whether he is to appear in person or by a pleader;
- Contain a direction whether the date is fixed for the settlement of issues or for final disposal of the suit;
- Order the defendant to produce all documents in his possession upon which he intends to rely in support of his case.
Exemption from attendance is given according to Order 5 Rule 21 to 30 of CPC
Section 26 enacts that a suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed, but a suit cannot be said to have been duly instituted under Section 27 until after scrutinising the plaint, the court registers it as a suit.
Appear and Answer:
The defendant who is served with summons has a right answer the claim by filing the written statement. This section lays down the general principle that no man should be condemned unheard.
Case Study- Keshav Lal Chokshi v. Manubhai (AIR 1968 Guj 223), it was held by Hon’ble Gujarat High Court that Order 37 Rules 1 and 2 of CPC, which provide for leave of the court to be obtained before filing the written statement is not inconsistent with this section.
This section was amended by CPC Amendment Act 1999 (46 of 1999) (w.e.f. 1-7-2002)
Modifications- This section has been amended by insertion at the end of the section the words ‘on such day not beyond thirty days from the date of the institution of the suit’
The object of amending section 27 is to fix time frame for sending summons to defendants. It provides thirty days from the institution of suit, within which summons should be sent to the defendants.
Retrospective effect– There is no retrospective, as the said amendment made by Section 3 of amendment act 1999, shall not apply to or affect any suit pending immediately before the commencement of Section 3 thereof and every such suit shall be tried as if Section 3 there of had not come into force.
Service of summons within 30 days- The amendment to Section 27 of the CPC provides a period of limitation for service of summons on the defendant. As per the amendment, the summons should be served on the defendants within 30 days. This new procedure would have the effect of eliminating delays in the service of summons and thereby mitigate evil of prolongation of litigation.
Amendments do no suffer from constitutional infirmity:
Amendments made by 1999 and 2002 acts do no suffer from any constitutional infirmity. The word ‘on such day not beyond thirty days from the date of the institution of the suit’ do not mean that the summon must be served within thirty days of the date of the institution of suit. The word added by amendment, fix outer time frame by providing steps.
Case Study- Salem Advocate Bar Association, Tamil Nadu v. Union of India (AIR 2003 SC 189(191)), the observation was drawn that it is quite evident that if all that is required to be done by a party, has been performed within the period of thirty days, then no fault can be attributed to the party.
CPC Section 28. Service of summons where defendant resides in another state
“(1) A summons may be sent for service in another State to such Court and in such manner as may be prescribed by rules in force in that State.
(2) The Court to which such summons is sent 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.
1[(3) Where the language of the summons sent for service in another State is different from the language of the record referred to in sub-section (2), 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,
shall also be sent together with the record sent under that sub-section].”
AIYATHURAI RAVUTHAN V. SAN. MUHAMAD MEERA RAVUTHAN AND ORS.
1. In this case as pointed out in the judgment of the learned Chief Justice the transferee of a mortgage has brought a suit for sale against the mortgagor and has joined therewith a claim against his transferor the original mortgagee for damages in case it should appear that any portion of the mortgage debt had been discharged by the mortgagor before the date of the transfer and so not be recoverable in the present suit from the mortgagor. The question is, is such a joinder of defendants and causes of action permissible, and this again appears to me to depend on the question whether the decision against allowing such a joinder in Muthappa Chetty v. Muthu Palani Chetty (1903) I.L.R. 27 M 80 or the contrary decision in Meyappa Chetty v. Peirannan Chetti (1905) I.L.R. 29 M. 50 should be followed. The decision in Muthappa Chetty v. Muthu Palani Chetty (1903) I.L.R. 27 M. 80 proceeded upon the authority of English cases, and the chief question in my opinion is, are these cases applicable?
2. The law as to joinder of parties and causes of action embodied in Sections 26, 28 and 46 of the Civil Procedure Code is borrowed with modifications from the rules in Orders XVI and XVIII of the Civil Rules of Practice under the Judicature Act. These Rules again are largely derived from the provisions of the Common Law Procedure Act, 1852 and 1858 which modified the rigour of the rules of pleading at Common Law. The history of these changes is lucidly traced in the well known judgment of Lord Justice Bowen in. Hannay v. Smurthwaite (1893) 2 Q.B. 412 which was approved by the House of Lords in Smurthwaite v. Hannay (1894) A.C. 494. Sections 26 and 28 of the Civil Procedure Code reproduce the language of Rules 1 and 4 of Order XVI as to joinder of plaintiffs and defendants with this modification that, whereas Rules 1 and 4 as originally framed provided for the joinder of plaintiffs or defendants in or against whom the right to any relief was alleged to exist, Section 26 expressly provides that in the case of joinder of plaintiffs, the relief must be “in respect of the same cause of action” and Section 28 that in the case of joinder of defendants the relief must be “in respect of the same matter.” Now it was decided by the House of Lords in Smurthwaite v. Hannay (1894) A.C. 494 under Rule 1 as it originally stood that plaintiffs could only be joined in respect of the same cause of action and that the Rule did not permit several causes of action by several plaintiffs to be joined against the same defendant; that is to say, Rule 1 was interpreted as confined to cases in which relief was sought “in respect of the same cause of action,” so that the introduction of the words ” in respect of the same cause of action” into Section 26 did not really make any difference, and therefore English decisions on Rule 1 are applicable to cases of joinder of plaintiffs under Section 26. It does not, however, follow that English decisions as to Rule 4 are applicable to cases of joinder of defendants under Section 28.
3. Although the decision in Muthappa Chetty v. Muthu Palani Chetty (1903) I.L.R. 27 M. 80 may perhaps be supported on the ground that the facts in that case were not such as to admit of the joinder of defendants there attempted on any view of Section 28, yet the decision proceeds on the authority of Sadler V. Great Western Railway Company in which it was held by the House of Lords that a plaintiff could not under Rule 4 join separate causes of action against different defendants in one suit. With great respect I am of opinion that English decisions on the scope of Rule 4 are not necessarily applicable to cases in India coming under Section 28. These decisions treat Rule 1 and Rule 4 as not concerned with joinder of causes of action at all but merely with joinder of parties. The fact, however, that under the Civil Procedure Code joinder of plaintiffs is only permitted when the relief is claimed in respect of the same cause of action, while in the case of defendants joinder is permitted when the relief is claimed in respect of the same matter goes, in my opinion, to show that it was not intended to restrict the joinder of defendants to cases in which relief is sought in respect of the same cause of action, and if this had been the intention, the words “in respect of the same cause of action” would have been used in Section 28 as well as in Section 26. The use of the less definite words “in respect of the same matter ” in Section 28 would seem to show that it was intended to allow joinder of defendants not only when relief was sought in respect of the same cause of action, but also when relief is sought in respect, of separate causes of action against the different defendants so long as they all arise in respect of the same matter.” The inconveniences of allowing defendants only to be joined in respect of the same cause of action in the strict sense and the consequent multiplicity of suits and failure of justice that must often result are forcibly pointed out by Lindley M.R. in Fankenburg v. Great Horseless Carriage Co. (1900) I.Q.B. 504 where the Court of Appeal put a liberal construction upon the term “cause of action” for the purpose of avoiding such in conveniences. Any other decision would, it is there pointed out, have revolutionised the practice of the Chancery Division. This, in my opinion, explains why the words “in respect of the same cause of action” in Section 26 are replaced by “in respect of the same matter” in Section 28, the intention being that claims to relief might be joined in one suit against several defendants whether they constituted separate causes of action or not so long as they were “in respect of the same matter” That the words “in respect of the same matter” in Section 28 are wider than the words “in respect of the same cause of action” has been pointed out by Sir Bhashyam Atyangar J. in Dampanaboyina Gangi v. Addala Ramaswami (1902) I.L.R. 25 M. 736 at 740.
4. For these reasons, I agree with the conclusion arrived at by Benson J, and dismiss the second appeal with costs. The 2nd defendant must pay the 1st defendant’s separate costs of the appeal in this Court.
SECTION 29- SERVICE OF FOREIGN SUMMONES
“Summons and other processes issued by-
(a) any Civil or Revenue Court established in any part of India to which the provisions of this Code do not extent, or
(b) any Civil or Revenue Court established or continued by the authority of the Central Government outside India, or
(c) any other Civil or Revenue Court outside India to which the Central Government has, by notification in the Official Gazette, declared the provisions of this section to apply.
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.]”
Essentials of a summons:
Every summons shall: (i) intimate to the defendant of the date of hearing and whether he is to appear in person or by a pleader; (ii) contain a direction whether the date is fixed for settlement of issues only or final disposal of the suit, and (iii) order the defendant to produce all documents in his possession or power upon which he intends to rely in support of his case. A summons in a small cause court suit shall be for final disposal and shall direct the defendant to produce his witnesses on the date fixed upon whose evidence he intends to rely in support of his case.
Exemption from attendance:
No party shall be ordered to appear in person : (1) 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 50 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 200 miles distance from the court house (Order V, Rule 4);
(2) If she is a woman not appearing in public according to the customs and manners of the country (S. 132); and
(3) If he falls in the category of persons exempted from personal appearance in Court under section 133, viz., (i) the President of India, (ii) the Vice-President of India, (iii) the Speaker of the House of the People, (iv) the Ministers of the Union, (v) the Judges of the Supreme Court, (vi) the Governors of States and the Administrators of Union territories, (vii) the Speakers of the State Legislative Assemblies, (viii) the Chairman of the State Legislative Councils, (ix) the Ministers of States, (x) the Judges of the High Courts, and (xi) rulers of any former Indian States to whom section 87-B, viz., in relation to d’ suit based upon a cause of action which arose before commencement of the Constitution, i.e., 26th January, 1950. (S. 133).
(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 be 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 acknowledgement due), the provisions of rule 21 shall not apply.
(5) When an acknowledgement 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 article 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 acknowledgement due, the declaration referred to in this sub-rule shall be made 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 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).
RULE 9-A. 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 acknowledgement of service or for any reason such summons cannot be served personally, the Court shall, on the application of the party, reissue such summons to be served by the Court in the same manner as a summons to a defendant.] (Order V, Rules 9 and 9-A).
Delivery or transmission of summons for service:
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 to the proper officer to be served by him or one of his subordinates. [Order V, Rule 9(1)].
The proper officer may be 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 by post or in such other manner as the court may direct. [Order V, Rule 9(2)].
Nataraja Iyer v. Nacharammal:
It would appear from Order V, Rule 9(2), C.P.C. that even though summons is served by post, if the defendant does not appear on the day fixed in the summons, the court has to direct that the summons shall be delivered or sent to the proper officer to be served by him or one of his subordinates on the defendant. In the context in which the word ‘may’ is used, it has to be interpreted as “shall”. The word ‘may’ include “may not” but is also capable of meaning ‘must’ or “shall” depending upon the context in which it is used. Where discretion is conferred upon the court coupled with an obligation, the word ‘may’ denote “shall”. It is the duty of the courts in construing a statute to give effect to the intention of the legislature. A literal meaning may defeat the object of the legislature. The word ‘ma/ has been used by the legislature in some cases as a matter of pure conventional courtesy, though the word is intended to be mandatory in force. In order to interpret the legal import of the word ‘may’, the context in which the word is used and the advantage sought to be achieved have to be considered.
Obviously because the court has no control over the postman and there is every possibility of the summons or notice being served on a wrong person with the same name, service of summons through the court again, if the defendant does not appear after the purported service of summons by post, was deemed necessary and laid down in the aforesaid rule.
SECTION 30- POWER TO ORDER DISCOVERY AND THE LIKE
“Subject to such conditions and limitations as may be prescribed, the Court may, at any time, either of its own motion or on the application of any party, –
(a) make such orders as may be necessary or reasonable 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 to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid;
(c) order any fact to be proved by affidavit.”
HIGH COURT AMENDMENT
CALCUTTA- In Clause (a) omit the words “delivery and answering of interrogatories”, the admission of documents and facts, and the discovery after the words “Matters relating to” and before the word “inspection”.
SCOPE OF SECTION-
The conditions and limitations referred to in this section may be found in Orders 11,12,13,16,19. Clause (c) of this section enacts an exception to the general rule that an affidavit is not evidence within the meaning of Section 3 of the Evidence Act. But an order of the Court is necessary to prove any fact by affidavit.
OF ITS OWN MOTION-
The two alternatives namely, either acting of its own motion or on the application of the party referred to in this section cannot be read to mean that the pressing into service of one excludes the pressing into the service of other. The fact that the application of the party was rejected does not disentitle the Court from passing suitable order subsequently under this section.
MEANING OF INTERROGATORIES-
A party to a suit may require information from his adversary as to facts or as to documents in the possession or power of such adversary relevant to issue. This is done for the purpose of maintaining one’s own case nor for rebutting the case of the adversary. When information as to facts is required, the party is allowed to administer a series of questions to his adversary. These questions are called ‘interrogatories. If these questions are considered proper by the court, the other party is compelled to answer them on oath before trial. This is called discovery of facts by the adversary.